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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 93-1331
United States of America,
Plaintiff-Appellee,
VERSUS
Charles Crain and Tony Watkins,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Texas
( September 19, 1994 )
Before JOHNSON, BARKSDALE and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
Defendant-appellants Charles Crain and Tony Watkins were
convicted by a jury for conspiracy to possess and possession of
cocaine base with the intent to distribute. We affirm Watkins'
convictions and sentence on both counts, and we affirm Crain's
conspiracy conviction. However, we reverse Crain's possession
conviction as not supported by sufficient evidence, and we vacate
Crain's sentence and remand his case to the trial court for
resentencing.

FACTS
Because this case involves a challenge to the sufficiency of
the evidence, the facts are stated here in detail. Watkins' cousin,
Carlos Woodward, testified at trial that on September 12, 1992, in
Abilene, Texas, Watkins borrowed Woodward's car to "go pick up his
girlfriend." Watkins gave his cousin $60 for the use of the car.
Defendant Crain's cousin, Michael Thompson, was called to the
stand at trial by Crain's defense counsel. Thompson testified that
on September 12, 1992, Thompson and Crain were at a friend's house
in Abilene, and Watkins showed up at about 1 p.m. and asked Crain
if he wanted to go to Fort Worth with him. Crain agreed, and
Thompson decided to come along, too. The three men, who had known
each other all their lives, rode together in the borrowed car and
arrived in Fort Worth at about 8 p.m. that evening. They went to
the house of Watkins' girlfriend, Crystal, who was there along with
"Buzzy," her roommate. Crain, Thompson, Crystal and Buzzy played
dominoes while Watkins made several phone calls. Soon thereafter,
Antonio Harris and a person named "Chub" arrived at the house.1
Watkins, Harris and Chub went outside. After five or ten minutes,
Watkins came back inside and said "Man, bull corn. They are
tripping, man. Let's go. Are you ready to go? Let's go." Watkins,
Crain and Thompson left the house at about 9:30 or 10 p.m., and
they went through the drive-through at Taco Bell before heading
1Thompson admitted on cross-examination that he, Crain and
Watkins all knew before they went to Fort Worth that Antonio
Harris was a drug dealer. At one point, Thompson referred to
Harris as "Capone."
2

back to Abilene. They had spent only about two hours in Fort Worth.
Crain was driving the car when they started back to Abilene.
Watkins was in the front passenger seat, and Thompson rode in the
back seat, sleeping part of the time.
Just after midnight on September 13, 1992, Texas Department of
Public Safety troopers Jimmy Willey and Steve Tone stopped the car
after radar indicated a speed of 90 mph. According to Thompson's
testimony, as the car was being pulled over, the three men had a
brief conversation. Thompson woke up when he heard Watkins say,
"DPS officer." At that point, the patrol car was behind them with
its lights flashing. As Crain began to pull over, he said, "The
only thing we are going to get is a ticket for speeding." Watkins
said, "No, I got this. I got this dope." Thompson said that until
that point, he and Crain did not know that Watkins had any drugs
with him. Either Crain or Thompson said to Watkins: "Man, that is
yours. I don't know nothing about it. You are going to have to deal
with that." As Crain was getting out of the car to talk to the
officers, he said to Watkins, "Well, hide it or something." While
Crain was outside the car speaking with the DPS troopers, Watkins
said to Thompson, "Mike, hide this," and Thompson replied, "I ain't
hiding nothing, you got me bent. I ain't gonna touch it. I ain't
messing with it." Thompson testified that Watkins then reached
over, hid the drugs "up under the seat" on the driver's side, then
"set back straight."
DPS troopers Willey and Tone testified that after Crain got
out of the car, Trooper Willey asked him to step to the rear of the
3

vehicle and out of traffic. The other two men remained in the car.
The trooper asked Crain for his driver's license and proof of
insurance. Crain did not have a driver's license with him, but he
provided his name and date of birth. When asked about proof of
insurance, Crain stated that the car was not his and indicated that
the officer should talk to Watkins. The other trooper, Steve Tone,
walked up to the front passenger window and asked Watkins for
identification and the vehicle's proof of insurance. Watkins
supplied both items, obtaining the proof of insurance from the
car's glove compartment. At this point, Trooper Tone returned to
the patrol car and began running a radio check on both Crain and
Watkins, using Watkins' identification and Crain's name and birth
date. Meanwhile, Trooper Willey asked Crain where he had been.
Crain said that the three men had been in Fort Worth visiting a
friend named Antonio Harris. While talking to Watkins about the
insurance, Trooper Tone had separately asked Watkins where he had
been. Watkins said that they had been to Fort Worth to attend an
aunt's funeral. After the radio checks were run on both Watkins and
Crain, both troopers returned to the car and confronted Crain about
the discrepancy in the stories.2 Trooper Tone then went and opened
2Trooper Tone initially testified that, when confronted with
the discrepancy, Crain said the other two "must be lying" because
they were scared. During cross-examination of Trooper Tone,
however, counsel for Watkins confronted Tone with the videotape
of that night, in which Crain does not explicitly state that
Watkins was "lying." On the tape, Tone came back around to Crain
and said, "The man in the front seat, what is he afraid of? Well,
why did he say that?" and Crain said, "Well, I don't know. There
ain't no reason for him to be afraid, you know. He claims -- he
has got an ID. You can do an ID check on him, too." Tone replied,
"Well, why are the stories like that?" At trial, after defense
4

the rear door of the car, obtained identification from Thompson,
the rear passenger, and asked both Watkins and Thompson if all
three men had been to a funeral. Trooper Tone testified that
Watkins and Thompson repeated the story that the three of them had
been to Watkins' aunt's funeral in Fort Worth.3 Trooper Tone told
them that Crain had said they had been visiting a friend, and that
Crain didn't know anything about a funeral. After a few seconds,
the two responded that maybe Crain hadn't gone to the funeral with
them. During this time, the officers testified, all three men
appeared "nervous."
Trooper Tone then asked Crain for consent to "look inside the
car," and almost immediately thereafter, Trooper Willey also asked
Crain for consent to search the car.4 The officers did not tell
Crain what they were looking for in the search, nor did they ask
Crain any questions about possible drugs, weapons or other
contraband. Trooper Tone testified at a pretrial suppression
hearing that the officers sought consent to search the car for
three reasons: (1) the radio check showed that both Crain and
Watkins had criminal histories, (2) all three men appeared nervous
counsel related the exchange on the tape, Tone testified that he
"inferred" from that exchange that Crain thought Watkins was
lying. Both troopers testified that large portions of the traffic
stop videotape were inaudible.
3Thompson testified that he did not say they had been to a
funeral; he told the trooper only that they had been to Fort
Worth.
4According to Trooper Tone's testimony, by the time Crain
was asked for consent to search, the car had been stopped for
about 30 minutes.
5

"like they were trying to hide something," and (3) they had told
differing stories about the reason they had gone to Fort Worth. In
response to the officers' request for consent to search, Crain
hesitated a moment, then repeated that the car did not belong to
him. One or both officers told Crain that, as the operator of the
car, he could consent to the search. Crain then said something to
the effect of "I don't care," "I don't mind," or "go ahead."
Although both troopers were aware that Watkins had borrowed the car
from a relative and that Watkins had supplied proof of insurance
for the car, neither trooper asked Watkins for consent to search
the car. Crain was not given a consent form to sign, and he was not
informed that he had a right to refuse consent.
Trooper Tone then told Watkins and Thompson to get out of the
car because the officers were going to search the passenger
compartment. Thompson testified that at that point he did not know
that Crain had consented to the search. Watkins and Thompson got
out of the car and went to stand at the rear of the car as
instructed. Crain remained standing at the rear of the car, where
he had been for about 30 minutes since the car was initially
stopped. During the search, Trooper Tone found a brown paper bag
lodged under the driver's bucket seat, between the seat and the
gearshift, underneath the rail by which the seat slides forward and
back. The bag had been twisted and rolled up and was "sticking out"
two to three inches from underneath the seat. Trooper Tone
testified that the bag would have been within easy reach of all
three passengers in the car. Tone attempted to remove the bag by
6

pulling it out from the top, but the bag was caught underneath the
seat and he could not pull it out from the top without tearing it.
Trooper Tone thus removed the bag by pulling it out from under the
seat. He then opened the bag and found a plastic bag containing a
whitish rock substance that later proved to be crack cocaine base.
The government's crime laboratory witness testified that the rock-
like substance was 80-percent-pure cocaine base weighing 21.51
grams. FBI Special Agent Tom Clark, testifying for the government,
stated that 21 grams of cocaine is worth more than $4,000 on the
street, and that possession of such an amount would normally
indicate an intent to distribute.
All three men were arrested. Thompson was not charged with
any federal violation. Watkins and Crain were both indicted on two
counts: (1) conspiracy to possess cocaine base with the intent to
distribute; and (2) possession of cocaine base with the intent to
distribute.5 A jury trial was held on February 1, 1993, and the
jury found both defendants guilty on both counts. The district
court held a sentencing hearing on April 2, 1993. Watkins was
sentenced to 140 months on each count, to run concurrently. Crain,
who had several prior convictions, was sentenced as a "career
offender" to 262 months on each count, to run concurrently. Both
Watkins and Crain appeal their convictions and sentences.
521 U.S.C. � 841(a)(1); 21 U.S.C. � 841(b)(1)(B)(iii); 21
U.S.C. � 846; 18 U.S.C. � 2.
7

ISSUES
Watkins claims that the district court erred in denying his
motion to suppress the evidence obtained during the vehicle
search.6 Crain challenges the sufficiency of the evidence to
convict him of both the possession offense and the conspiracy
offense. Watkins challenges the sufficiency of the evidence to
convict him of conspiracy. Both defendants also raise sentencing
issues. Crain contends that the district court improperly "double
counted" prior convictions when calculating Crain's offense level.
Watkins claims that he was improperly denied the opportunity to
plea bargain and thus to "accept responsibility" under the
Sentencing Guidelines.
DISCUSSION
Motion to Suppress Evidence From Search
Watkins made a pretrial motion to suppress all evidence
obtained from the search of the car he had borrowed from his
cousin. The motion was denied. On appeal, Watkins makes three
arguments as to why the cocaine should have been excluded from
evidence:
(1) Watkins claims that Crain did not have enough authority
over the car to validly consent to the search because Watkins had
borrowed the car from his cousin and thus was the only person who
6This issue involves three questions: (1) Did Crain have
enough authority over the vehicle to validly consent to the
search? (2) Did the troopers, by opening a closed container
inside the car, exceed the scope of Crain's consent? (3) Did the
investigatory detention violate the Fourth Amendment because it
was unreasonably long and intrusive?
8

had a possessory interest in the car. However, Crain was a co-
occupant of the vehicle and had permission to drive it on a late-
night highway trip. In such a situation, Watkins had assumed the
risk that Crain might consent to a search. See, e.g., United States
v. Richard, 994 F.2d 244, 250 (5th Cir. 1993). A person who has
joint control over an automobile may give valid consent to its
search. United States v. Varona-Algos, 819 F.2d 81, 83 (5th
Cir.)(driver's consent to search vehicle valid against passenger
who later claimed to be vehicle's owner), cert. denied, 484 U.S.
929 (1987); see also United States v. Morales, 861 F.2d 396, 399-
400 (3d Cir. 1988)(driver had authority to consent to search of
vehicle, and search was valid against passenger who had leased
vehicle). We therefore conclude that Crain, as the driver of the
vehicle with Watkins' permission, had enough authority to consent
to the search.
(2) Watkins claims that, even if Crain's consent was valid,
the troopers exceeded the scope of the consent by opening a closed
container inside the car. Watkins argues that because the troopers
never stated, or even implied, what they were looking for in the
car, the jury could not have reasonably inferred that Crain's
general consent would include consent to open a closed paper bag
shoved under the seat. However, Florida v. Jimeno, 500 U.S. 248,
251 (1991), states that police do not have to separately request
permission to search each closed container in a vehicle, and that
the driver's general consent to a search of the car includes
consent to examine a paper bag on the floor of the car. Id. at 251.
9

Jimeno also notes that the suspect has the right to limit the scope
of his consent as he chooses, but in this case, none of the three
men attempted to limit the scope of the search. This Circuit,
relying on Jimeno, 111 U.S. at 251, has held that an individual's
consent to an officer's request to "look inside" his vehicle is
equivalent to general consent to search the vehicle and its
contents, including containers such as luggage. United States v.
Rich, 992 F.2d 502, 508 (5th Cir.), cert. denied, 114 S. Ct. 348
(1993). We therefore hold that the DPS troopers' search of the
paper bag in this case did not exceed the scope of Crain's consent.
(3) Finally, Watkins contends that the investigatory detention
violated the Fourth Amendment because it was unreasonably long and
intrusive. Under Terry v. Ohio, 392 U.S. 1, 9-10 (1968), the issue
of whether an investigatory detention or traffic stop complies with
the Fourth Amendment depends upon two factors -- whether the stop
was justified at its inception, and whether the officer's actions
during the stop were reasonably related in scope to the
circumstances that justified the interference in the first place.
United States v. Shabazz, 993 F.2d 431, 435 (5th Cir. 1993).
Watkins concedes that the initial stop for speeding was justified,
but he argues that the extended detention and questioning of the
occupants about where they had been did not reasonably relate to
the speeding violation.
We note that other circuits have held or hinted that extensive
questioning about matters totally unrelated to the purpose of a
routine traffic stop may violate the Fourth Amendment. See, e.g.,
10

United States v. Guzman, 864 F.2d 1512, 1519 (10th Cir. 1988). But
this Circuit holds that mere police questioning does not constitute
a seizure. Shabazz, 993 F.2d at 436. Further, when questioning
takes place while officers are waiting for the results of a
computer check -- and therefore does not extend the duration of the
stop -- the questioning does not violate Terry. See Shabazz, 993
F.2d at 437.
In this case, the length of the stop was reasonable. The
troopers' questioning of the three men did not lengthen the
detention because it occurred while they were still waiting on the
computer check. The troopers' conduct therefore was justified under
Shabazz, 993 F.2d at 435, and the passengers' conflicting stories
and nervousness further justified the detention.
Therefore, we
hold that the trial court's refusal to suppress the evidence gained
in the search was not error. See also United States v. Roberson, 6
F.3d 1088, 1092 (5th Cir. 1993), cert. denied, 14 S. Ct. 1322
(1994); United States v. Henao, 835 F.Supp. 926, 927 (E.D. Tex.
1993), aff'd, 22 F.3d 1095 (5th Cir. 1994)(TABLE).
Sufficiency of Evidence as to Watkins - Conspiracy
Although Watkins does not challenge his conviction for
possession of cocaine with the intent to distribute, he challenges
the sufficiency of the evidence to support his conviction for
conspiracy. In a narcotics conspiracy, the government must prove
beyond a reasonable doubt that (1) an agreement existed between two
or more persons to violate narcotics laws; (2) each alleged
conspirator knew of the conspiracy and intended to join it; and (3)
11

each alleged conspirator voluntarily participated in the
conspiracy. United States v. Elwood, 993 F.2d 1146, 1150 (5th Cir.
1993).
When reviewing the sufficiency of evidence, the appellate
court views the evidence and the inferences therefrom in a light
most favorable to the government and determines whether a rational
trier of fact could have found -- beyond a reasonable doubt -- that
the government proved the defendant's guilt on each element of the
charged offense. United States v. Velgar-Vivero, 8 F.3d 236, 239
(5th Cir. 1993), cert. denied sub. nom., Rivas-Cordova v. United
States, 114 S. Ct. 1865 (1994). With these considerations in mind,
we turn to the evidence against Watkins. Watkins paid $60 to borrow
the car, initiated the trip to Fort Worth and recruited Crain and
Thompson to accompany him. With Watkins' permission, Crain assisted
in the driving. Thompson's testimony indicates that Watkins made
phone calls, went outside to meet with a known drug dealer, and
made the decision of when they would leave Fort Worth. Watkins
physically possessed the bag containing the cocaine, made the
statement, "I got this dope," and asked for Thompson's help in
hiding it. We hold that the evidence was sufficient to support
conviction of Watkins for conspiracy, and we therefore AFFIRM that
conviction.
Sufficiency of Evidence as to Crain - Conspiracy
Crain contends that the evidence was insufficient to convince
12

a rational jury of his guilt beyond a reasonable doubt on either
the conspiracy count or the possession count. We first address the
evidence on conspiracy.
The government introduced circumstantial evidence tending to
prove that Crain knew that Watkins was going to Fort Worth to
obtain drugs, and that with this knowledge Crain agreed to
accompany Watkins on the trip and help with the driving. The
circumstantial evidence of the conspiracy includes these facts: (1)
the men drove all the way to Fort Worth, yet stayed there less than
two hours, and there was no evidence that any of them thought this
was unusual, (2) Crain knew that Antonio Harris was a drug dealer,
yet called him a "friend" and told police the three men had gone to
Fort Worth to see him, (3) Crain was present when Watkins made
several phone calls, then went outside briefly to meet with Harris
and "Chub," and (4) Crain contributed to the trip by taking a turn
driving.
Although the issue is a close one, we hold that the jury was
entitled to infer from these facts that Crain knew of Watkins'
illicit reason for going to Fort Worth, yet voluntarily agreed to
accompany him and help with the driving. Although Thompson's
testimony indicated that Crain did not know about Watkins'
intentions, the jury was entitled to discredit that part of the
testimony. We therefore AFFIRM Crain's conviction for conspiracy.
Sufficiency of Evidence as to Crain - Possession
With regard to the possession count, the government must
prove beyond a reasonable doubt that Crain (1) possessed illegal
13

drugs; (2) did so knowingly; and (3) intended to distribute the
drugs. Elwood, 993 F.2d at 1149. Even though we today affirm
Crain's conviction for conspiracy, we do not believe that the
evidence supports the conclusion that Crain possessed cocaine with
the intent to distribute.7
Notwithstanding the inferences we must draw in favor of a
guilty verdict, we reiterate that the burden of proof in this
criminal case was on the government. The government must prove that
the defendant was guilty beyond a reasonable doubt, not merely that
he could have been guilty. United States v. Sacerio, 952 F.2d 860,
863 (5th Cir. 1992). In this case, there is no proof that Crain
ever had actual possession of the paper bag. On the contrary, there
is testimony that Crain never touched the bag, and that as soon as
he discovered that it was in the car, he told Watkins, "Man, that
is yours ... you are going to have to deal with that."
7In some cases, a defendant who participates in a conspiracy
may be "deemed" guilty of substantive counts, such as possession,
committed by a co-conspirator in furtherance of the conspiracy.
Pinkerton v. United States, 328 U.S. 640, 645 (1946); United
States v. Basey, 816 F.2d 980, 997-98 (5th Cir. 1987). However, a
substantive conviction cannot be upheld solely under Pinkerton
unless the jury was given a Pinkerton instruction. United States
v. Sanchez-Sotelo, 8 F.3d 202, 208 (5th Cir. 1993)("Since the
district court did not instruct the jury [under Pinkerton], proof
of the conspiracy alone will not sustain the possession charge
against Sotelo."), cert. denied, 114 S. Ct. 1410 (1994); Basey,
816 F.2d at 998. Basey held that, at a minimum, a proper
Pinkerton instruction should at least state clearly that the
defendant can be convicted of a substantive crime committed by
his co-conspirator in furtherance of the conspiracy. Basey, 816
F.2d at 998 & n.35. The jury in this case was not given such an
instruction; therefore, Crain's possession conviction must stand
or fall on the evidence against Crain. Sanchez-Sotelo, 8 F.3d at
208.
14

In an attempt to prove constructive possession, the government
emphasizes the fact that the cocaine was found under the driver's
seat where Crain had been sitting, and it contends that because
Crain was driving the vehicle, he had control over the vehicle and
therefore the drugs. However, we have held that when two or more
people are occupying a place, a defendant's control over the place
is not by itself enough to establish constructive possession of
contraband found there. See United States v. Mergerson, 4 F.3d 337,
349 (5th Cir. 1993), cert. denied, 114 S. Ct. 1310 (1994). We are
especially reluctant to infer constructive possession of contraband
by one occupant when there is evidence in the record explicitly
linking the contraband to another occupant. Mergerson, 4 F.3d at
349 (pawnshop receipt showed that gun belonged to co-occupant of
bedroom rather than defendant); See also United States v. Pigrum,
922 F.2d 249, 255-56 (5th Cir.), cert. denied sub. nom., Allen v.
United States, 500 U.S. 936 (1991); United States v. Onick, 889
F.2d 1425, 1429-30 (5th Cir. 1989)(both reversing possession
convictions when evidence linked co-occupant, rather then
defendants, to drugs on premises). As we stated in a recent case,
"We recognize that in other cases we have indicated that
mere dominion over a vehicle in which [contraband] is
found can lead to an inference of constructive
possession. But ... while dominion over the vehicle will
certainly help the government's case, it alone cannot
establish constructive possession of [contraband] found
in the vehicle, particularly in the face of evidence that
strongly suggests that someone else exercised dominion
and control over the [contraband]."
United States v. Wright, 24 F.3d 732, 735 (5th Cir. 1994)(citations
omitted). With regard to Crain, the government did not prove
15

sufficient "circumstantial indicium of possession" -- the
"something else ... besides mere joint occupancy" -- which we
require to prove constructive possession. Mergerson, 4 F.3d at 349.
In addition, "countervailing evidence" links the drugs to Watkins,
not Crain: Watkins -- not Crain -- talked to "Capone" and "Chub."
Watkins -- not Crain -- decided when the three would leave Abilene
and when they would depart from Fort Worth. Watkins was the one who
announced, "I got this dope," who tried to get Thompson to hide it,
and who ultimately stuffed it under Crain's seat. Even if the
jurors chose to disbelieve Thompson's testimony, "their disbelief
is not tantamount to proof beyond a reasonable doubt" that Crain
knowingly possessed cocaine with the intent to distribute it. See
Velgar-Vivero, 8 F.3d at 241. As in Velgar-Vivero, "the jury's
conclusion that the government proved [Crain]'s guilt beyond a
reasonable doubt was unreasonable as a matter of law." As in Onick,
889 F.2d at 1429, we suspect that the jury "must have speculated
[Crain] into a conviction," piling "inference upon inference,"
which it cannot do. Inferences must stop at some point. Even under
our strict standard of review for insufficiency claims, we conclude
that a rational jury could not have found on this record that Crain
was guilty of the possession count. As we stated in a recent case,
"[a]lthough the strict nature of this standard
demonstrates our reluctance to interfere with jury
verdicts, this case is an example of why courts of appeal
must not completely abdicate responsibility for reviewing
jury verdicts."
United States v. Ragan, 24 F.3d 657, 659 (5th Cir. 1994). For the
reasons stated, we hold that the evidence was insufficient to
16

convict Crain for possession of cocaine with the intent to
distribute.
"Double-Counting" in Crain's Sentence
Crain claims that the trial court erred in overruling his
objections to his presentence report. Crain, who was sentenced as
a "career offender" under U.S.S.G. � 4B1.1, contends that the
sentencing court "double-counted" his prior convictions in setting
his base offense level and his criminal history category. However,
because we remand Crain's case to the trial court for resentencing
in light of this opinion, we do not address the "double-counting"
argument.8
Watkins' Attempt to Plea Bargain
Before trial, the government offered Crain and Watkins an
opportunity to enter into a joint plea agreement. Crain would not
agree to plead guilty. The government refused to allow Watkins to
plea-bargain individually. Watkins claims that this refusal
unjustly denied him the opportunity to accept responsibility for
his actions and receive a sentence reduction under U.S.S.G. �
3E1.1. The government counters that there is no constitutional
right to a plea bargain, and the prosecutor need not offer a plea
bargain if he or she would prefer to go to trial. Weatherford v.
Bursey, 429 U.S. 545, 560 (1977). In addition, we note that
8In resentencing Crain, the trial court should consider our
holding in United States v. Bellazerius, 24 F.3d 698, 702 (5th
Cir. 1994)(vacating defendant's sentence, holding that Sentencing
Commission exceeded its authority by including drug conspiracy
convictions in list of offenses that trigger career offender
status).
17

Watkins' argument erroneously assumes that there is a cause-and-
effect relationship between pleading guilty and receiving the two-
point reduction for acceptance of responsibility. The Sentencing
Guidelines have expressly rejected that position. The commentary to
section 3E1.1 states that a defendant's guilty plea before trial is
evidence that he or she has accepted responsibility, but a
"defendant who enters a guilty plea is not entitled to an
adjustment as a matter of right." U.S.S.G. � 3E1.1 commentary n.3
(1993); see also United States v. Faubion, 19 F.3d 226, 229 (1994).
In addressing Watkins' claim that he was not allowed to accept
responsibility, the probation officer noted that
"during the interview for the presentence report, Mr.
Watkins maintained he was innocent of the instant
offenses and signed a statement to that effect. ... The
defendant's failure to secure a favorable plea agreement
before trial does not appear to be relevant to the issue
of acceptance of responsibility."
At Watkins' sentencing, the trial court adopted the conclusions and
analysis of the PSI, and found "under the record before this court,
that the defendant should not be given the credit for acceptance of
responsibility under the guidelines." The trial court's decision on
this issue is entitled to "great deference." United States v.
Schmeltzer, 20 F.3d 610, 614 (5th Cir. 1994). We hold that the
government's refusal to allow Watkins to plea bargain individually
does not warrant reversal of his sentence.
Conclusion
Therefore, we AFFIRM Watkins' convictions and sentence on both
18

counts, and we AFFIRM Crain's conspiracy conviction. We REVERSE
Crain's possession conviction as not supported by sufficient
evidence, and we VACATE Crain's sentence and REMAND his case to the
trial court for resentencing.
wjl\opin\93-1331.opn
ace
19

RHESA HAWKINS BARKSDALE, Circuit Judge, concurring in part and
dissenting in part:
I concur in the majority's resolution of all but one issue --
its holding that the evidence was not sufficient to convict Crain
for possession. The majority describes correctly our narrow and
deferential standard of review when confronted with a sufficiency
of the evidence challenge: a jury's guilty verdict must be
sustained if, "after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt."
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (citation
omitted; emphasis in original). In attempting to apply this strict
standard of review, however, the majority invaded the providence of
the jury and, instead, elected to weigh the evidence itself.
The evidence supporting Crain's possession conviction was not
limited to the single fact that he was the driver of the vehicle in
which the drugs were discovered. Maj. op. at 15 (quoting United
States v. Wright, 24 F.3d 732, 735 (5th Cir. 1994) ("... while
dominion over the vehicle will certainly help the government's
case, it alone cannot establish constructive possession of
[contraband] found in the vehicle...."). In affirming Crain's
conviction for conspiracy, the majority recognized other evidence
which proved Crain's constructive possession of the cocaine.9 For
example, it holds that the jury was entitled to infer from the
9
I disagree with the majority's characterization of
Crain's conspiracy conviction as being a "close" issue.

evidence that Crain knew that Watkins was going to Fort Worth to
obtain drugs, and that, with this knowledge, Crain agreed to
accompany Watkins on the trip and help with the driving. Maj. op.
at 13. Additionally, after travelling a great distance, Crain and
Watkins spent only about two hours in Fort Worth before commencing
their return to Abilene in the late evening.10 After pulling the
car over, Trooper Willey initiated contact with the driver, Crain;
Trooper Tone's focus was concentrated on the passengers remaining
in the vehicle. Trooper Tone testified that during his observation
of the other occupants of the car (Watkins and Thompson), he did
not see Watkins lean over as if to place something under Crain's
seat, as Thompson later testified.11 Furthermore, the bag of drugs
under Crain's seat was not completely hidden -- the bag protruded
out for two to three inches, clearly within Crain's grasp.
Through Thompson's testimony, Crain may have introduced
"countervailing evidence" which tended to link Watkins to the
drugs, Maj. op. at 16; however, that evidence does not
automatically dissociate Crain from the drugs.12 For example, the
10
According to the Rand McNally Road Atlas, the distance
between Fort Worth and Abilene is 152 miles. Although this fact
was never introduced at trial, it is easily within the common
experience of a jury sitting in the Northern District of Texas at
Abilene.
11
As the majority notes, Thompson was not a defendent.
Neither Crain nor Watkins testified.
12
In fact, as the majority points out, Thompson was
napping on the back seat when the vehicle was stopped.
Obviously, while asleep, he could not have heard or understood
any conversation Watkins and Crain may have had, to include about
drugs.
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majority does not address the fact that Crain and Watkins could
jointly possess the drugs.13 Most disturbing, however, is its sole
reliance upon Thompson's testimony to disregard the evidence which
clearly supports the jury's verdict. Thompson testified that after
Crain exited the car to talk with the troopers, Watkins placed the
drugs under Crain's seat; however, his credibility was seriously
questioned.14 Regardless, it goes without saying that the issue of
credibility is for the jury, not this court.
Confronted with this sufficiency of the evidence challenge,
the majority fails to adhere to the strict limitation placed upon
13
The jury instructions made the possibility of joint
possession clear: "You may find that the element of possession
... is present if you find beyond a reasonable doubt that the
defendants had actual or constructive possession, either alone or
jointly with others" (emphasis added). As for constructive
possession, the instruction provided that "[a] person who,
although not in actual possession, knowingly has both the power
and the intention, at a given time, to exercise dominion or
control over a thing, either directly or through another person
or persons, is then in constructive possession of it."
Eason v. United States, 281 F.2d 818, 821 (9th Cir. 1960),
held "evidence of close friendship, joint venture and general
conduct ... sufficient to warrant a reasonable jury finding
beyond reasonable doubt that possession was joint." Subsequent
cases suggest that this may be the outer edge for permitting
finding possession. See United States v. Duke, 423 F.2d 387, 391
n.3 (5th Cir. 1970); but cf. United States v. Savinovich, 845
F.2d 834, 837 (9th Cir.) ("if there is a rational basis for
attributing interest in the contraband to one party because of
relationship with another, a trier of fact can infer sufficient
knowledge to support a conviction for possession"), cert. denied,
488 U.S. 943 (1988). These factors are present here, but, in the
light of the other evidence, are not necessary to consider in
resolving this issue.
14
Besides being related to Crain, Thompson had an
extensive criminal record, and, when initially interviewed by the
troopers, failed to mention that Watkins originally possessed the
drugs and then placed them under Crain's seat.
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appellate courts. Instead, it has substituted itself for the jury,
electing to weigh the evidence and determine issues of credibility.
Because a rational jury could have found Crain guilty of possession
beyond a reasonable doubt, I must respectfully dissent from the
reversal of his conviction on that charge.
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