United States v. White

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
March 7, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-50702
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARYL WHITE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:04-CR-234-3
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Before REAVLEY, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
Daryl White appeals his conviction for aiding and abetting
in the possession of cocaine base with intent to distribute in
violation of 21 U.S.C. § 841 and 18 U.S.C. § 2. He argues that
the evidence was insufficient to support his conviction.
The denial of a motion for a judgment of acquittal is
reviewed de novo. United States v. Ferguson, 211 F.3d 878, 882
(5th Cir. 2000). The evidence demonstrated that White aided the
criminal venture by transporting Camille Wilkins to an apartment
complex to distribute cocaine base. Telephone records
established that Jon Taylor and White communicated with each

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other ten times over a one-hour period prior to White’s arrival
at the apartment complex. Wilkins admitted that fifteen minutes
before she was to testify at trial she told the prosecutor that
White knew he was taking her to deliver cocaine base that day.
To establish White’s state of mind or intent, the Government
presented evidence that White had previously been arrested for
possession of cocaine base and that he had previously transported
Taylor on at least one occasion to deliver cocaine base in the
recent past. A rational jury could find that White shared the
criminal intent of Wilkins and Taylor, that he participated in
the venture by transporting Wilkins to distribute the cocaine
base, and therefore that White aided and abetted in the
possession of cocaine base with intent to distribute. See United
States v. Pruneda-Gonzalez, 953 F.3d 190, 193 (5th Cir. 1992).
White argues that the district court abused its discretion
in admitting the testimony of Doyle Ray Griffin and Officer Toby
Julian concerning White’s previous transport of Taylor to deliver
cocaine base and his prior arrest for possession of cocaine base.
The district court did not abuse its discretion in ruling that
the testimony was probative to show intent, plan, knowledge,
motive or absence of mistake under FED. R. EVID. 404(b) and that
the probative value of the evidence outweighed the prejudicial
effect. See United States v. Jackson, 339 F.3d 349, 354 (5th
Cir. 2003). The district court’s jury instruction, that the
evidence could only be considered to determine whether White had

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the state of mind or intent necessary to commit the crime, was
sufficient to minimize any prejudicial effect of the evidence.
See United States v. Walters, 351 F.3d 159, 167 n.5 (5th Cir.
2003). Further, any error in admitting the evidence was harmless
as Wilkins testified that White drove her to deliver the crack
cocaine and that his payment was to be crack cocaine. See
Jackson, 339 F.3d at 354.
White argues that the district court erred in giving the
jury a deliberate ignorance instruction. Because the evidence
raises the inference that White was aware of a high probability
that he was involved in criminal activity and that he purposely
contrived to avoid learning of the illegal conduct, the district
court did not abuse its discretion in giving the deliberate
ignorance instruction. See United States v. Newell, 315 F.3d
510, 528 (5th Cir. 2002).
The district court’s judgment cites 21 U.S.C. § 341, instead
of 21 U.S.C. § 841. The judgment is corrected because of this
clerical error. FED. R. CRIM. P. 36.
AFFIRMED AS CORRECTED.

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