United States v. Mullins , 778 F.3d 37 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 13–2075
UNITED STATES OF AMERICA,
Appellee,
v.
CHRISTOPHER MULLINS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Lynch, Chief Judge,
Stahl and Kayatta, Circuit Judges.
William S. Smith for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom
John P. Kacavas, United States Attorney, was on brief, for
appellee.
February 4, 2015
KAYATTA, Circuit Judge. Christopher Mullins appeals his
conviction and sentence for conspiring to possess and distribute
cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846. He presses
three primary arguments on appeal: (1) the record lacks sufficient
evidence to convict him of the charged conspiracy; (2) the district
court plainly erred in instructing the jury on the conspiracy
charge; and (3) the district court clearly erred in calculating the
drug quantity attributable to Mullins. Finding all three arguments
unpersuasive, we affirm the conviction and the sentence in all
respects.
I. Background
A. The Evidence
Because Mullins challenges the sufficiency of the
evidence after a jury found him guilty, "we view the facts in the
light most favorable to the verdict." United States v. Adorno-
Molina, No. 13–1065, 2014 WL 7234953, at *1 (1st Cir. Dec. 19,
2014).
In September 2011, Maine Drug Enforcement Agency
("MDEA") agents investigated a drug trafficking organization
operating out of 100 Ohio Street in Bangor, Maine. The leaders of
this organization shipped crack and powder cocaine from the New
York City area to Maine via Greyhound bus. As part of the
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investigation, MDEA agents, using a confidential informant ("CI"),1
conducted a controlled purchase of $350 worth of powder cocaine
from Mullins. CI wore a "body wire" (an electronic transmitting
device that transmits all audio within earshot). After CI arrived
at Mullins's apartment, Mullins called the 100 Ohio Street
organization. During the call, Mullins mentioned someone named
"Bullet,"2 a member of the organization.
Shortly after Mullins called, a green Lexus pulled up to
his apartment. "Fish,"3 another member of the organization, came
inside Mullins's apartment. Mullins and Fish met alone for about
two minutes, and then Fish left. Mullins then handed CI eight bags
of powder cocaine. CI had purchased ten bags, but only received
eight, because Mullins kept two as a fee.
Two months later, on November 2, 2011, MDEA agents
arrested Mullins. On that same day, they searched 100 Ohio Street
and an apartment located on Garland Street also used by the
conspirators to store drugs, seizing approximately 368 grams of
crack from the Garland Street location. After receiving Miranda
1
We refer to the informant as CI only "in light of concerns
about the safety of cooperating witnesses raised by the Committee
on Court Administration and Case Management of the Judicial
Conference of the United States." United States v. Etienne, 772
F.3d 907, 912 n.1 (1st Cir. 2014).
2
Bullet's name is Jowenky Nunez.
3
Fish's name is Manuel Trinidad-Acosta. See United States v.
Trinidad-Acosta, 773 F.3d 298 (1st Cir. 2014).
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warnings, Mullins provided MDEA agents with a recorded statement,
during which he communicated the following: He started working for
the members of the organization (to whom he referred as "the
Dominicans") in November 2010. By June 2011, he had four or five
customers to whom he regularly sold crack and powder cocaine.
Mullins reported that he purchased from the Dominicans, on average,
$5,000 worth of crack and powder cocaine per week, and, on
occasion, as much as $5,000 in a single night.4 He would resell
the drugs for his own profit, either by taking some portion of the
sale, as he did in the controlled purchase, or by reselling at a
higher price. Mullins referred to himself as a "runner" for the
Dominicans. He also said that there were times when customers
would try to purchase drugs directly from the Dominicans, but the
Dominicans would tell them, "no, go see Chris [Mullins]."
B. Trial and Sentencing
A grand jury indicted Mullins for conspiring to possess
with intent to distribute cocaine and more than 28 grams of cocaine
base from September 2010 through November 2011. At trial, the key
evidence against him was his own statement to the MDEA agents, the
testimony of CI, and the testimony of Pari Proffitt, a roommate of
the Dominicans. Proffitt testified that 90 percent of the sales
made by the 100 Ohio Street organization were crack, and that
4
Mullins claimed that he once spent approximately $50,000 in
two months on drugs for personal use.
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Mullins was a frequent purchaser. A law enforcement officer
testified that a "runner" is "a middleman," a "go-between the
larger dealer and the typical user." A jury convicted Mullins
after the two-day trial.
At sentencing, the district court ultimately held Mullins
responsible for 140 grams of crack. The court conservatively
calculated that Mullins worked for his suppliers for only ten
weeks, from June 2011 until the end of September 2011 (subtracting
6 weeks when he was out of town). The court found that he bought
about $4,000 worth of drugs per week, 90 percent of which was
crack. The court found that crack goes for approximately $200 a
gram, and that Mullins kept 20 percent of the purchases for
himself. The court did not hold Mullins accountable for the
estimated 10 percent of his sales that were cocaine, because both
parties agreed that it would have no effect on the applicable
sentencing range. Based on a base offense level of 28 and criminal
history category VI, the district court determined that the
guideline sentencing range was 140–175 months. U.S.S.G.
§ 2D1.1(c); id. ch. 5, pt. A. The district court sentenced Mullins
to 140 months in prison.
II. Analysis
A. Sufficiency of Evidence
Mullins contends that the evidence was so lacking that it
at best showed he was a frequent purchaser of crack and cocaine--an
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addict who independently resold drugs to sustain his habit. We
review the denial of a motion for judgment of acquittal de novo.
United States v. Rosado-Pérez, 605 F.3d 48, 52 (1st Cir. 2010). We
draw all reasonable inferences in the prosecution's favor. Id."If a reasonable jury could find [Mullins] guilty beyond a
reasonable doubt of all elements of the charged offense, we must
affirm the conviction." Id.To establish guilt on a conspiracy charge, the government
must prove that "an agreement existed to commit the underlying
substantive offense, and that the defendant elected to join the
agreement, intending that the underlying offense be committed."
United States v. Gómez-Rosario, 418 F.3d 90, 105 (1st Cir. 2005)
(internal quotation marks omitted). Mullins's own statement was
more than enough to support a finding that he was, as he put it, a
"runner" for the 100 Ohio Street organization, rather than just a
user who independently resold drugs on his own. Mullins argues
that his concession that he was a runner is "nebulous." Perhaps.
But any ambiguity would seem to be irrelevant, since it matters
only that he had a role in the conspiracy, and not that the role be
some particular type of runner. Moreover, the remainder of
Mullins's statement fleshed out further details that amply
supported a finding that he was a member of the conspiracy that
operated out of 100 Ohio Street: he obtained on average $5,000
worth of crack per week, and some of his retail customers were
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referred to him by the organization leaders. In short, he
described himself in substance as a knowing and regular retail
middleman for his suppliers.5 See United States v. Boidi, 568 F.3d
24, 29–30 (1st Cir. 2009) (continuing purchase and sale
relationship along with upstream dealer's knowledge of defendant's
redistribution permits a jury to infer agreement that defendant
possess and distribute drugs to advance common conspiratorial
goal); United States v. Moran, 984 F.2d 1299, 1303 (1st Cir. 1993).
The details of the sale to CI, and evidence that Mullins called the
organization's order number 116 times in four months added further
substantial support for the jury's conclusion. In short, the
evidence was more than sufficient to support the verdict.6
5
In his pro se brief, Mullins also complains about the audio
quality of his recorded statement, portions of which were played
for the jury. But the jury was able to evaluate that recording for
itself, along with the interviewing officer's first-hand testimony
about the content of that interview.
6
In his pro se brief, Mullins contends that evidence of drug
type--crack or powder cocaine--was insufficient to support a
conviction. But, under the statute, the government need not prove
any specific type of controlled substance. See 21 U.S.C. § 841(a)
("[I]t shall be unlawful for any person knowingly or intentionally
(1) to . . . possess with intent to . . . distribute, or dispense,
a controlled substance[.]"); see also United States v. Andino, 627
F.3d 41, 48 (2nd Cir. 2010) (noting that the government does not
need to prove a "type-specific scienter on the defendant's part, as
a result of alleging a conspiracy involving a specific type of
drug").
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B. Jury Instructions
Mullins argues that the district court should have sua
sponte provided additional jury instructions on "the principles of
separate conspiracies." Mullins failed to object below, so we
review only for plain error. United States v. Colon, 744 F.3d 752,
757 (1st Cir. 2014). Plain error requires Mullins to meet a "heavy
burden of showing (1) that an error occurred; (2) that was clear or
obvious; (3) that the error affected his substantial rights; and
(4) that the error also seriously impaired the fairness, integrity,
or public reputation of judicial proceedings." Id. (internal
quotation marks omitted).
Mullins is correct that a defendant charged with a
conspiracy is entitled to an instruction that he must be convicted
of the conspiracy charged, and not another conspiracy that might be
supported by the evidence, whenever the evidence would support a
finding of an illicit conspiracy other than the one charged.
United States v. Díaz, 670 F.3d 332, 350 (1st Cir. 2012). But the
district court did provide such an instruction. In pertinent part,
the district court instructed that:
For you to find Mr. Mullins guilty of
conspiracy, you must be convinced that the
government has proved each of the following
elements beyond a reasonable doubt: First,
that the agreement specified in the
indictment, and not some other agreement or
agreements, existed between at least two
people to distribute and to possess with
intent to distribute cocaine and cocaine base;
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and, second, that the defendant willfully
joined in that agreement.
. . . .
[T]he government must prove beyond a
reasonable doubt that those who were involved
shared a general understanding about the
crime. Mere similarity of conduct among
various people or the fact that they may have
associated with each other or discussed common
aims and interests does not necessarily
establish proof of the existence of a
conspiracy, but you may consider such factors.
An instruction like this has survived similar challenges. See
United States v. Niemi, 579 F.3d 123, 126–27 (1st Cir. 2009);
United States v. Balthazard, 360 F.3d 309, 316 (1st Cir. 2004).
The instruction, as given, conveyed the substance of Mullins's
defense. As such, his claim--especially on plain error review--
fails. See Niemi, 579 F.3d at 127.
C. Drug Quantity Calculation
The specific type of controlled substance does matter for
purposes of applying the sentencing guidelines. See U.S.S.G.
§2D1.1(c). In his pro se brief, Mullins argues that there was no
basis for the district court's finding at sentencing that 90
percent of his dealings involved crack. Mullins points us to the
controlled purchase, which involved only a small amount of powder
cocaine, not crack.
We review a district court's factual findings regarding
drug quantity for clear error. United States v. Green, 426 F.3d
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64, 66 (1st Cir. 2005). Drug quantity findings may "be based on
approximations . . . as long as those approximations represent
reasoned estimates of drug quantity." United States v. Ventura,
353 F.3d 84, 88 (1st Cir. 2003). A defendant may be held
responsible only for drug quantities "foreseeable to [that]
individual." United States v. Correy, 570 F.3d 373, 380 (1st Cir.
2009). Foreseeability encompasses "not only . . . the drugs [the
defendant] actually handled but also . . . the full amount of drugs
that he could reasonably have anticipated would be within the ambit
of the conspiracy." United States v. Santos, 357 F.3d 136, 140
(1st Cir. 2004).
The district court's finding here had substantial support
in the record, and was thus not clearly erroneous: Proffitt
testified that crack accounted for 90 percent of the conspirators'
drug sales, and police seized 368 grams of crack when they searched
the Garland Street apartment. Proffitt also testified that Mullins
frequently purchased crack from Fish. To be sure, the drug
quantity calculation here was imprecise. But Mullins could have
been held accountable for "the full amount of drugs that he could
reasonably have anticipated would be within the ambit" of the 100
Ohio Street conspiracy. Id. Instead, the court only held Mullins
accountable for a very conservative estimate of the crack that he
himself handled. Imprecise drug-quantity findings are upheld when
they are "based upon conservative estimates or favorable
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assumptions." United States v. Rodriguez, 731 F.3d 20, 32 (1st
Cir. 2013).
III. Conclusion
For the foregoing reasons, we affirm.
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