IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-30684 _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KENNETH LEE DERUISE, also known as T T; FREDERICK D. STEMLEY,

Defendants-Appellants. _________________________________________________________________

Appeals from the United States District Court for the Eastern District of Louisiana USDC No. 98-CR-225 _________________________________________________________________ December 6, 2001 Before JOLLY, SMITH, and WIENER, Circuit Judges.

PER CURIAM:1

Kenneth Deruise and Frederick Stemley were convicted of one

count of conspiring to possess marijuana with intent to distribute,

in violation of

(a)(1) and 846. The district court

denied their motions for judgment of acquittal and for a new trial.

Deruise was sentenced to three years’ probation and a $2000 fine.

Stemley was sentenced to sixty-three months’ imprisonment, five

years’ supervised release, and a $3000 fine. We affirm both

1 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. convictions, but vacate Stemley’s sentence and remand for

resentencing.

I

On appeal, the defendants contend that the district court

erred in failing to grant their Rule 29 motions for acquittal based

on insufficient evidence, and that there was a material variance

between the indictment and the evidence at trial. They also argue

that the district court erred in admitting into evidence 103 pounds

of marijuana that FBI agents seized on September 8, 1998, after the

conspiracy charged in the indictment had ended2 and after the

indictment was returned.3

Deruise claims that the district court allowed improper

impeachment of him. On cross-examination, Deruise testified that

he had used marijuana only once. The district court allowed the

prosecutor to elicit rebuttal testimony from New Orleans policemen

who said that they had arrested Deruise twice for possession of

marijuana in August 1998, although neither arrest resulted in a

conviction. Further, Stemley argues that the district court erred

under Apprendi v. New Jersey,

(2000), in imposing a

sentence above the statutory maximum in the absence of a jury

finding as to the quantity of marijuana involved, and that the

2 The indictment charged a conspiracy between the dates of “about May 1998, and continuing through July 1998.” 3 The indictment was returned on September 4, 1998.

2 district court sentenced him for more marijuana than he is

accountable for under the sentencing guidelines.

II

A

We begin with the Rule 29 motions for acquittal. We review

the denial of a Rule 29 motion de novo. United States v. Restrepo,

(5th Cir. 1993).

To prove a conspiracy under

in this case, the

government must show: (1) the existence of an agreement between

two or more persons to possess and distribute drugs in violation of

federal narcotics laws; (2) that the defendant knew of the

agreement; and (3) that the defendant voluntarily participated in

the agreement. United States v. Gallo,

(5th Cir.

1991) (citations omitted). These elements may be proved by

circumstantial evidence, and “[c]ircumstances altogether

inconclusive, if separately considered, may, by their number and

joint operation . . . be sufficient to constitute conclusive

proof.” United States v. Roberts,

(5th Cir.

1990) (quotation marks and citations omitted).

In sum, the government’s principal evidence against Deruise,

that is, the evidence to prove that he was part of a conspiracy to

possess and distribute marijuana, consisted of: testimony from an

FBI agent and a co-conspirator that the word “t-shirt” as used in

the recorded conversations was one of the code words for cocaine or

3 marijuana; that Deruise called Norman Scott and asked for “t-

shirts” or otherwise sought drugs through code words; and that

Deruise arranged to purchase one pound of marijuana and requested

an additional three pounds. Deruise insists that he asked for t-

shirts because he really wanted t-shirts.

The jury heard all the evidence and could reasonably conclude

that Deruise was knowingly involved in a conspiracy to possess and

distribute marijuana. A co-conspirator “need not know all the

details of the unlawful enterprise, or know the exact number and

identity of all the co-conspirators, so long as in some fashion he

or she knowingly participates in the larger conspiratorial

objectives.” United States v. Greenwood,

(5th

Cir. 1992). We have held that the common goal of deriving personal

gain from the illicit business of buying and selling cocaine

constitutes a single conspiracy. See United States v. Morris,

(5th Cir. 1995). There was sufficient evidence to

show that Deruise shared such a common goal, and that he

voluntarily agreed with Scott to possess and distribute marijuana.

We therefore affirm his conviction.

B

Stemley also filed a Rule 29 motion for acquittal, which the

district court denied. The evidence against Stemley is strong.

The government presented evidence that (1) Stemley placed eleven

phone calls to Scott, one of which related to purchasing

4 “chickens,” a code word for marijuana, and others relating to

leaving drug money for Scott to pick up or paying drug money to

Scott directly; (2) Stemley purchased two pounds of marijuana from

Scott on July 5, 1998; (3) Stemley purchased five pounds of

marijuana from Scott on July 22; (4) Stemley arranged to leave drug

profits at Scott’s home for another person to pick up; and (5)

three co-conspirators testified that they had seen Stemley and

Scott together.

The evidence is clearly sufficient to permit a rational jury

to find him guilty as a participant in a conspiracy to possess and

distribute drugs in violation of federal narcotics law. We

therefore find no error in the district court’s denial of Stemley’s

Rule 29 motion.

III

Deruise also argues that the district court allowed improper

impeachment testimony of him relating to alleged previous

possession of marijuana. Although we have doubts as to the

admissibility of this testimony under Federal Rules of Evidence 403

and 404, we hold that it was harmless given the other evidence

against Deruise.

IV

Deruise and Stemley further contend that the district court

abused its discretion in admitting into evidence the 103 pounds of

marijuana seized on September 8, 1998. They argue this was not

5 relevant evidence under Federal Rule of Evidence (“FRE”) 401, and

that it was unduly prejudicial evidence of other bad acts under

Federal Rules of Evidence 403 and 404(b) and United States v.

Beechum,

(5th Cir. 1978) (en banc). The defendants

objected to the admission of this evidence at trial, and we review

the district court’s evidentiary ruling on this matter for an abuse

of discretion. United States v. Navarro,

(5th

Cir. 1999), cert. denied,

(1999).

“‘Other act’ evidence is ‘intrinsic’ when the evidence of the

other act and evidence of the crime charged are ‘inextricably

intertwined’ or both acts are part of a ‘single criminal episode’

or the other acts were ‘necessary preliminaries’ to the crime

charged.” United States v. Williams,

(5th Cir.

1990). Such evidence is admissible to complete the story of a

crime by proving the immediate context of events in time and place.

United States v. Kloock,

(5th Cir. 1981).

Intrinsic evidence does not implicate Rule 404(b), and

“consideration of its admissibility pursuant to Rule 404(b) is

unnecessary.” United States v. Garcia,

(5th

Cir.), cert. denied,

(1994). We believe this

evidence was intrinsic, in that it was part of the single

conspiracy to possess and distribute marijuana charged by the

government, i.e., part of a “single criminal episode.” Although

the indictment charged a conspiracy from May through July 1998,

6 evidence seized after these dates can be probative of that

conspiracy. Thus there is no need to consider FRE 404(b).

Further, although the evidence here was seized after the return of

the indictment, we have previously upheld the admission of evidence

seized after the alleged conspiracy had ended and the indictment

had been returned. See United States v. Navarro,

(5th Cir. 1999). Thus it was not an abuse of discretion to

admit the marijuana simply because it was seized after the return

of the indictment.

We must also consider whether the admission of the marijuana

into evidence was unduly prejudicial under FRE 403. The parties

point to United States v. Torres,

(5th Cir. 1982) and

to Navarro. In Torres, the district court admitted evidence of

“sample transactions” that occurred prior to the dates alleged in

the indictment, because the evidence of the sample transactions and

the evidence of the charged conspiracy were “inextricably

intertwined” and formed a “natural and integral” part of the

surrounding circumstances.

. In Navarro, the

district court admitted evidence of drugs seized in January 1997,

even though the alleged conspiracy ended in September 1996. The

court concluded that the 1997 evidence “demonstrated the structure

of the drug organization, as well as the continuing contact

between” the defendants.

.

7 The evidence here was part of the single conspiracy alleged,

and demonstrated its nature and scope. It was probative, and given

its intrinsic nature was not unduly prejudicial. We hold that the

district court did not abuse its discretion in admitting this

evidence.

V

The defendants also assert that there was a material variance

between the indictment and the evidence presented at trial, and

that they were prejudiced by this. The second superseding

indictment alleged that the defendants conspired “with each other

and with other persons known and unknown to the Grand Jury . . . .”

The defendants claim that at most the government proved individual

two-person conspiracies, and not the umbrella conspiracy alleged in

the indictment. The defendants raised this objection at trial.

“To prevail on a material variance claim, these defendants must

prove (1) a variance between the indictment and the proof at trial,

and (2) that the variance affected their substantial rights.”

United States v. Morgan,

(5th Cir.), cert.

denied,

(1997).

“With variance, our concern is whether the indictment,

assuming it has otherwise alleged the elements of the offense, has

so informed a defendant that he can prepare his defense without

surprise and has protected him against a second prosecution for the

same offenses.” United States v. Cochran,

(5th

8 Cir. 1983) (citation omitted). The indictment in this case

informed the defendants of the charge of conspiracy to possess and

distribute marijuana, the dates of the conspiracy and the identity

of the other named defendants. We are convinced that the

defendants in this case were sufficiently informed of the nature of

the case and were protected against a second prosecution.

Additionally, whether the evidence shows one or multiple

conspiracies is a question of fact for the jury. Morgan,

. The evidence and analysis in Part II of the opinion

demonstrate that the jury could reasonably find one conspiracy. We

therefore hold that there was no material variance between the

indictment and the proof at trial.

VI

Stemley also contends that the district court erred in

sentencing him, and raises three sentencing issues. “We review

factual findings made by a district court for sentencing purposes

under the clearly erroneous standard, and review the district

court's legal application of the United States Sentencing

Guidelines [] de novo.” United States v. Franklin,

(5th Cir. 1998). However, Stemley failed to object to the

Presentence Investigation Report’s (“PSR”) or the district court’s

marijuana calculations at the sentencing hearing. When a defendant

raises a sentencing issue for the first time on appeal, we review

9 for plain error only. United States v. Vasquez-Zamora,

(5th Cir. 2001).

A

Stemley first contends that the district court miscalculated

the quantity of marijuana delivered to Scott. The district court

accepted the PSR’s finding that Alexander Cruz delivered 375 pounds

of marijuana to Scott. However, at trial Cruz only testified to

delivering between 290 and 310 pounds of marijuana, and Eugene

Haynes testified to delivering four pounds of marijuana to Scott.

Even if this is an error, it is harmless. Under the United States

Sentencing Guidelines, 375 pounds of marijuana and 314 pounds of

marijuana (or 170.1 kilograms and 142.4 kilograms, respectively)

fall under the same sentencing level. See U.S.S.G. § 2D1.1(c)

(Drug Quantity Table) (offenses involving between 100 kilograms and

400 kilograms of marijuana fall under Level 26).

B

Stemley also contends that the district court erred in holding

him accountable for the total quantity of drugs attributable to the

conspiracy. However, when sentencing a defendant involved in a

drug trafficking conspiracy, the quantity to be considered for

sentencing purposes includes both the drugs with which the

defendant was directly involved and the drugs that can be

attributed to him through the conspiracy. United States v. Brito,

(5th Cir.), cert. denied,

,

,

(1998). Additionally, “involvement in a

conspiracy is presumed to continue and will not be terminated until

the co-conspirator acts ‘affirmatively to defeat or disavow the

purpose of the conspiracy.’” United States v. Pofahl,

(5th Cir.), cert. denied,

, 996 (1993).

There is no evidence that Stemley acted to withdraw from the

conspiracy. We hold that the district court did not err in holding

Stemley accountable for the total quantity of marijuana

attributable to the conspiracy.

C

The government concedes that Stemley’s sentence must be

modified in the light of Apprendi v. New Jersey,

(2000). “If the government seeks enhanced penalties based on the

amount of drugs . . . , the quantity must be stated in the

indictment and submitted to a jury for a finding of proof beyond a

reasonable doubt . . . .” United States v. Doggett,

(5th Cir. 2000) (applying Apprendi). This Court has

clarified that “[t]he decision in Apprendi was specifically limited

to facts which increase the penalty beyond the statutory maximum .

. . .”

. The government’s position at trial was that

the conspiracy involved approximately 1000 pounds (or 453.6

kilograms) of marijuana, which would have resulted in a prison term

of at least five but not more than forty years. See

(b)(1)(B)(vii) (“In the case of a violation . . . involving . .

11 . 100 kilograms or more of . . . marijuana . . . such person shall

be sentenced to a term of imprisonment which may not be less than

5 years and not more than 40 years.”).

Because this drug quantity was not alleged in the indictment,

the government concludes that the maximum term of imprisonment

would be sixty months followed by at least two years of supervised

release, consistent with an unspecified quantity of marijuana in

the indictment. See

(b)(1)(D) (“In the case of less

than 50 kilograms of marihuana, . . . such person shall . . . be

sentenced to a term of imprisonment of not more than 5 years.”).

Because Stemley was sentenced to sixty-three months’ imprisonment

and five years’ supervised release, the government agrees that

Stemley’s sentence is the result of plain error and must be

modified accordingly.

IV

We AFFIRM Deruise’s and Stemley’s convictions, but VACATE

Stemley’s sentence and REMAND for resentencing consistent with this

opinion.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED IN PART

12