United States v. Bullock , 54 F. App'x 9 ( 2002 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
______________________
No. 02-1165
UNITED STATES OF AMERICA,
Appellee,
v.
CHRISTOPHER BULLOCK,
Defendant, Appellant.
______________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
________________________
Before
Boudin, Chief Judge,
Farris,* Senior Circuit Judge,
and Torruella, Circuit Judges.
____________________
Donald R. Furman, Jr., Furman Law Firm, for Appellant.
Mark E. Howard, Assistant United State Attorney, with whom
Thomas P. Colantuono, United States Attorney, was on brief, for
Appellee.
December 20, 2002
*/
Of the Ninth Circuit, sitting by designation.
Per Curiam. Christopher Bullock appeals the judgment and
160-month sentence imposed following his jury trial conviction for
conspiracy to distribute and to possess with intent to distribute
cocaine and cocaine base ("crack"), in violation of 21 U.S.C.
§ 846. He contends the district court erred in (1) denying his
motion to dismiss based on insufficient evidence; (2) admitting
coconspirator statements which were inadmissible hearsay; and (3)
determining the drug quantity for sentencing purposes. We affirm
the conviction and sentence.
At Bullock's jury trial, two coconspirators, Dana Towsley
and Carlos "Blacks" Richards, and multiple investigating police
officers, including undercover Detective Brian Phelps, testified
for the government against Bullock. Towsley, who had already
pleaded guilty to crack distribution charges in this matter,
testified that during the spring and summer of 2001, he lived in
Bullock's apartment and worked for him by "running crack." Towsley
explained that Bullock permitted him to live in his apartment
without paying rent and, in exchange, Towsley would deliver crack
to Bullock's customers. Towsley further testified that he made
five or six trips to New York City to obtain crack for Bullock.
While Towsley admitted that he sometimes sold his own crack
independently, he also testified that Bullock supplied him with
crack on occasion and that on April 30, 2001, the crack Towsley
sold to undercover Detective Phelps belonged to Bullock.
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Richards, who had also already pleaded guilty to crack
distribution charges in this matter, testified that he assisted
Bullock in selling crack by helping him package and deliver it.
Richards also admitted to selling and packaging his own crack
independently and that the crack he sold to Detective Phelps on
August 8, 2001, was his own, but that Bullock provided the
transportation, namely his vehicle, for that delivery.
Investigating police officers testified that on April 19,
2001, after Towsley told Detective Phelps he could obtain crack
later that day by walking to get it, they observed Towsley and
Richards walk into Bullock's apartment shortly before returning to
Phelps with crack for sale. Detective Phelps further testified
that on April 24, 2001, Bullock's apartment telephone was utilized
by Richards and Towsley for a crack sale. Phelps also testified
that Bullock was actually present at two crack sales which took
place on April 30 and August 8, 2001.
Bullock first contends that the evidence was insufficient
to convict him of violating 21 U.S.C. § 846, and that the trial
court should have granted his motion for judgment of acquittal. We
review this claim de novo, see United States v. Hernandez, 146 F.3d
30, 32 (1st Cir. 1998), unitarily applying the familiar sufficiency
of the evidence standard, see United States v. Hernandez, 218 F.3d
58, 64 n.4 (1st Cir. 2000) (noting that challenges to the
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sufficiency of the evidence and to the denial of a motion for
judgment of acquittal raise a single issue).
Under this standard, the court reviews all the evidence,
direct and circumstantial, in the light most favorable to the
prosecution, drawing all reasonable inferences consistent with the
verdict, and avoiding credibility judgments, to determine whether
a rational jury could have found the defendant guilty beyond a
reasonable doubt. See United States v. Baltas, 236 F.3d 27, 35
(1st Cir.), cert. denied, 532 U.S. 1030 (2001). It is immaterial
that a possible rendition of the record could support a not guilty
verdict; it is enough that a rational trier of fact could have
construed the evidence to find guilt beyond a reasonable doubt.
See id.
Bullock argues that the evidence presented at trial
merely establishes independent and joint venture sales of crack by
coconspirators Towsley and Richards, sales which "neither involved
nor were dependent[] on Mr. Bullock." According to Bullock, the
evidence failed to establish that he intended to agree and to
commit the conspiracy with Towsley and Richards for which he was
convicted.
To prove a drug conspiracy under 21 U.S.C. § 846, the
government must show that a conspiracy existed and that a
particular defendant agreed to participate in it, with the intent
to commit the underlying substantive offense. See Baltas, 236 F.3d
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at 35. It is necessary to show both intent to agree and intent to
commit the substantive offense. See id. at 35-36. However, the
government need not show that a given defendant took part in all
aspects of the conspiracy. See id. at 36. One can be a
conspirator by agreeing to facilitate only some of the acts leading
to the substantive offense. See Salinas v. United States, 522 U.S.
52, 65 (1997).
The record reflects that evidence established not only
the existence of a drug conspiracy, but one in which Bullock
clearly agreed to participate with the intent to distribute crack.
Proof of Bullock's direct participation in every drug sale made by
his coconspirators is not required to convict him for drug
conspiracy. See id.; United States v. Marrero-Ortiz, 160 F.3d 768,
773 (1st Cir. 1998).
Bullock next contends that certain coconspirator
statements should not have been admitted at trial. Under an
exception to the hearsay rule, an out-of-court statement made "by
a coconspirator of a party during the course and in furtherance of
the conspiracy," may be offered into evidence against that party.
Fed. R. Evid. 801(d)(2)(E). To invoke this exception, the
government "bears the burden of establishing, by a preponderance of
the evidence, that a conspiracy embracing both the declarant and
the defendant existed, and that the declarant uttered the statement
during and in furtherance of the conspiracy." United States v.
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Bradshaw, 281 F.3d 278, 283 (1st Cir. 2002) (internal marks
omitted). Because coconspirator statements are not deemed
self-elucidating, the government must introduce extrinsic evidence
sufficient to delineate the conspiracy and corroborate the roles of
the declarant and the defendant. See United States v. Sepulveda,
15 F.3d 1161, 1181-82 (1st Cir. 1993).
Here, the government introduced sufficient extrinsic
evidence to demonstrate, by a preponderance of the evidence, the
existence of a conspiracy, and the respective roles of Towsley,
Richards, and Bullock. See id. at 1180. Detective Phelps and
other police officers corroborated Towsley and Richards' testimony
by linking four separate crack sales to Bullock, Bullock's vehicle,
or Bullock's apartment. We reject Bullock's claim that the
government failed to satisfy its foundational requirement for
admitting the hearsay statements of Bullock's coconspirators.
Bullock contends that at sentencing the district court
inappropriately included all the drug sales Towsley and Richards
made to Detective Phelps, despite evidence that Bullock was not
involved in most of them. We review a sentencing court's findings
of fact concerning drug quantity for clear error. See United States
v. Caba, 241 F.3d 98, 102 (1st Cir. 2001).
The district court calculated the applicable drug
quantity to be between twenty and thirty-five grams of crack,
yielding a base offense level of twenty-eight. The court based its
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"very conservative figure" on four undercover sales to Phelps
linked to Bullock (the April 19, April 24, April 30, and August 8,
2001 transactions), and the crack Towsley obtained for Bullock on
multiple trips to New York City. Bullock was present at two of the
sales and provided use of his apartment and telephone for two other
sales, for a total sale to Detective Phelps of 13.77 grams of
crack. Also, Towsley obtained approximately half an ounce, or 14
grams, of crack for Bullock on each of his five or six trips to New
York City. The district court did not err in making its sentencing
calculations.
Affirmed.
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