Fancher v. Jordan, (10th Cir. 1999)

Text

---

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT



CLAYTON SHANNON FANCHER,

Petitioner-Appellant,

v.

LENORA JORDAN,

Respondent-Appellee.

No. 98-6296

(D.C. CIV-98-496-L)

(Western District of Oklahoma)



ORDER AND JUDGMENT
name="txt*">(*)



Before PORFILIO, KELLY, and

HENRY, Circuit Judges.



Petitioner-appellant Clayton Fancher was convicted after a jury trial in the District

Court of Oklahoma County, Oklahoma, of conspiring to traffic methamphetamine and

trafficking methamphetamine. The Oklahoma County District Court sentenced him to

two concurrent 27 ½ year sentences. After the Oklahoma Court of Criminal Appeals

affirmed his conviction and sentence, Mr. Fancher filed a petition for a writ of habeas

corpus in the United States District Court for the Western District of Oklahoma pursuant

to 28 U.S.C. § 2254.

In his federal habeas petition, Mr. Fancher asserted the following claims: (1) that

the conspiracy conviction should be vacated because the information failed to allege that

he committed an overt act in furtherance of the conspiracy; (2) that there was insufficient

evidence to support the conspiracy charge because the prosecution failed to prove that

there was any agreement to traffic methamphetamine; (3) that there was insufficient

evidence to support the substantive count of trafficking methamphetamine because

accomplice testimony was not corroborated; and (4) that there was insufficient evidence

to support the substantive methamphetamine count because the state failed to prove that

the substance Mr. Fancher sold was methamphetamine.

The district court rejected all of these claims, see Rec. docs. 14, 17, and denied

Mr. Fancher's application for a certificate of appealability, see id. doc. 22. Mr.

Fancher

now seeks to appeal the district court's ruling on his fourth claim, arguing that the court

erred in concluding that there was sufficient evidence to prove that the substance in

question was methamphetamine.(1)

In order to support a conviction for drug possession, the state need not present

direct evidence. United States v. Baggett, 890 F.2d 1095, 1096 (10th Cir. 1989).

However, when "the Government fails to seize and analyze the chemical composition of

the alleged narcotic substance, there must be enough circumstantial evidence to support

an inference that the defendant actually did possess the drugs in question." Id. This

circumstantial evidence may include:

"evidence of the physical appearance of the substance . . . ,

evidence that the substance produced the expected effects

when sampled by someone familiar with the illicit drug,

testimony that a high price was paid in cash for the substance,

evidence that transactions involving the substance were

carried on with secrecy or deviousness, and evidence that the

substance was called by the name of the illegal narcotic by

the defendant or others in [her] presence."

Id. (quoting United States v. Dolan, 544 F.2d 1219, 1221 (4th Cir. 1984)).

In this case, the respondent has acknowledged that the prosecution did not

introduce direct evidence at trial regarding the chemical composition of the substance

distributed by Mr. Fancher in December 1989. However, the respondent has identified

circumstantial evidence supporting the inference that the substance in question was

methamphetamine. In particular, a government informant testified that he was familiar

with the effects of methamphetamine, that he used the substance involved in the

December transaction, and that the substance affected him in a way that he associated

with methamphetamine. Additionally, the state presented evidence that Mr. Fancher

resold a large quantity of the substance to a buyer at a price commensurate with the price

offered for methamphetamine and that the buyer never questioned the identity of the

substance. We agree with the magistrate judge and the district court that this

circumstantial evidence is constitutionally sufficient to support Mr. Fancher's conviction

for trafficking in methamphetamine.

Accordingly, we deny Mr. Fancher's application for a certificate of appealability

and dismiss this appeal.

Entered for the Court,

Robert H. Henry

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. This order and judgment is not binding

precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court generally

disfavors the citation of orders and judgments; nevertheless, an order and judgment may

be cited under the terms and conditions of 10th Cir. R. 36.3.

1. After examining the briefs and

appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered

submitted without oral argument.

---