United States v. Cunningham

*Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 98-10170
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MARSHA CUNNINGHAM,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(3:97-CR-263-2-R)
June 27, 2000
Before GARWOOD, DeMOSS and PARKER, Circuit Judges.
PER CURIAM:*
Marsha Cunningham (“Cunningham”) appeals from the judgment and
sentence entered by the United States District Court for the
Northern District of Texas, Chief Judge Jerry Buchmeyer, presiding.
Cunningham was convicted, along with co-defendant Phillip
Christopher Foote, on three counts of possession with intent to
distribute both cocaine and cocaine base in violation of 21 U.S.C.

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§§ 841(1)(1) and 2, and she was also convicted on one count of
maintaining a building for the purpose of manufacturing cocaine and
cocaine base in violation of 21 U.S.C. §§ 856(a)(1) and 2.
Cunningham first argues in this appeal that the evidence
presented was insufficient to support the jury’s verdict as to
Counts One through Four, that is -- the three counts of possession
with the intent to distribute cocaine and cocaine base, in
violation of 21 U.S.C. §§ 841(a)(1) and 2, and the one count of
maintaining a building for the purpose of manufacturing cocaine and
cocaine base in violation of 21 U.S.C. §§ 856(a)(1) and 2.
Specifically, Cunningham contends that the government did not
adequately prove that she “knowingly” possessed with the intent to
distribute the cocaine and cocaine base or that she sought by her
own actions to make such a criminal venture succeed. She also
contends that the government failed to prove that she “knowingly”
opened, maintained, or aided the opening or maintenance of a
cocaine manufacturing facility.
Our standard of review for sufficiency of evidence claims is
whether, after viewing the evidence and the reasonable inferences
which flow therefrom in the light most favorable to the verdict,
any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. See United States v. Jones,
185 F.3d 459, 464 (5th Cir. 1999)(citing Jackson v. Virginia, 443
U.S. 307, 317-18, 99 S. Ct. 2781 (1979)); United States v.
Mulderig, 120 F.3d 534, 546 (5th Cir. 1997), cert. denied, 118
S. Ct. 1510 (1998).

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In her second issue, Cunningham contends that the district
court erred in not granting her motion to sever the trials of Foote
and herself. In spite of an admitted preference for trying
defendants indicted together in joint trials, Cunningham contends
that severance should have been granted in this case because a
specific and compelling prejudice resulted in an unfair trial, as
failure to grant severance prohibited Foote from offering
exculpatory testimony on Cunningham's behalf. This basis for
severance was presented for the first time on appeal, and is thus
subject to review only for plain error. See United States v.
Calverley, 37 F.3d 160, 162 (5th Cir. 1994)(en banc), abrogated on
other grounds, United States v. Johnson, 520 U.S. 461 (1997). In
Foote's original motion for severance, in which Cunningham joined,
the basis for severance argued was mutually antagonistic defenses.
On appeal, however, Cunningham argues that had the trials been
severed, Foote would have provided exculpatory testimony at her
trial.
Having carefully reviewed each of the issues presented by
Appellant and having fully considered the briefs, the record
excerpts, the record, and the arguments presented at oral argument,
we are persuaded that the judgment of the district court should be
and the same is hereby AFFIRMED.

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