USA vs. Gowens (5th Cir. 1999)

Federal Circuits, 5th Cir. (October 07, 1999)

Docket number: 98-50089


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* Pursuant to 5 TH C IR . R. 47.5, the court has determined th a t this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .

R. 47.5.4. IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-50089 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus FRED B. GOWENS, JR., and JANET CAMPBELL, Defendants-Appellants. Appeal from the United States District Court for the Western District of Texas USDC No. SA-97-CR-86-5 October 5, 1999 Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM: * Fred B. Gowens and Janet Campbell appeal their convictions and sentences for conspiracy to manufacture and distribute m ethamphetamine, in violation of 21 U.S.C. §§ 846 and 841(a)(1).

Gowens argues that his consent to search his Corvette was not voluntary because at the time he consented, he was handcuffed and surrounded by police officers who had their weapons drawn. The record does not support the assertion that the officers had their weapons drawn. Nor does it appear from the totality of circumstances reflected in the record that Gowens gave co nsent under duress. S ee Schneckloth v. Bustamonte , 412 U.S. 218, 227 (1973). Detention does not preclude a finding of true and voluntary consent. U nited States v. Allison , 616 F.2d 779, 782-83 (5th Cir. 1980). The district court did not clearly err in finding the requisite consent to search. See United States v. Jones , 475 F.2d 723, 729 (5th Cir. 1973). Gowens challenges the admissibility at trial of the ephedrine seized from his Corvette during the search. He argues it was not relevant to the conspiracy because it was discovered more than three months after the end date of the conspiracy. He also contends, despite its being found in his Corvette, there was no reliable link between him and the ephedrine. The record indicates that Gowens was the only person to drive the Corvette, and that it was parked in his girlfriendÂ’s driveway at the time of the search.

Gowens§ 3B1.1(c), a two-level sentencing adjustment for his leadership role in the offense. GowensÂ’s recruitment of Tracey Schad, his planning of SchadÂ’s trip to Houston to purchase supplies, and his financial backing of her purchase of supplies for maki ng methamphetamine indicate that he had control over Schad and that he had decision-making authority, including directing another to facilitate the crimi nal offense.

See United States v. Gonzalez , 76 F.3d 1339, 1345 (5th Cir. 1996).

GowensÂ’s argument that Schad was an unreliable wit ness is unavailing. Schad was subject to extensive cross-examination at trial, and Gowens has failed to demonstrate that her testimony regarding his role in the offense was untrue, inaccur ate, or unreliable. S ee Unit ed States v. Young , 981 F.2d 180, 185 (5th Cir. 1992). GowensÂ’s argument that he had insufficient means to finance the trip to Houston and the purchase of supplies is equally unavailing. Gowens owned a Corvette, a Honda, a Chevrolet pickup truck, and a Porsche that he gave to Schad. The record supports his financial ability to finance the manufacture of methamphetamine. Campbell argues that the evidence at trial was insufficient to support her conviction, and her counsel was therefore ineffective for failing to move for a judgment of acquittal at the close of the governmentÂ’s case, or at the close of all evidence. Campbell admitted th at she had previously sold methamphetamine for cocon spirator, Jackie Haley, and she admitted knowledge of the manufacturing goi ng on in her home, which made the circumstances surrounding her purchase of Equate pills for Haley very suspicious.

Schad tes tified that she had provided chemicals to Campbell and Gowens for the purpose of manufacturing methamphetamine. From the evidence, the jury could have inferred that Campbell was not only present at the scene, but knowingly participated in the manufacture and distribution of methamphetamine with her coconspirators. See United States v. Rosalez-Orozco , 8 F.3d 198, 201 (5th Cir. 1993).

Accordingly, Campbell cannot show that if counsel had moved for a judgment of acquittal, the motion would have been granted on the basis of insufficiency of evidence. S ee Strickland v. Washington , 466 U.S. 668, 689-94 (1984); Burston v. Caldwell , 506 F.2d 24, 28 (5th Cir. 1975). A F F I R M E D.

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