United States v. Roberson ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 16, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-3305
(D.C. No. 5:11-CR-40078-JAR-2)
MARCUS D. ROBERSON, (D. Kan.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, HOLMES, and MORITZ, Circuit Judges.
_________________________________
Marcus D. Roberson appeals his convictions and life sentence for conspiracy to
distribute 280 grams or more of crack cocaine (Count I), conspiracy to distribute five
kilograms or more of powder cocaine (Count II), and murder to prevent a person from
providing information to a law enforcement officer (Count III). Roberson argues that
(1) the jury instruction on the murder count failed to specify that he intended to prevent a
communication with a federal law enforcement officer; (2) the prosecution failed to
disclose one of its witness’s involvement in a prior shooting; (3) there was insufficient
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
evidence to support the jury’s verdicts; and (4) the finality of his prior drug convictions
was not determined by the jury. Exercising jurisdiction under 18 U.S.C. § 3742(a) and
28 U.S.C. § 1291, we affirm.
BACKGROUND
Virok Webb ran a “well-structured” drug distribution organization in Junction
City, Kansas. R., Vol. I at 886. Its members included Webb; Roberson; Antonio Cooper;
Jamaica Chism; Alisha Escobedo; Crystal Fisher; Jermaine Jackson; and others.
Law enforcement officers considered Roberson to be “second in charge.” Id. at
1193. Roberson had several roles. In addition to selling cocaine, he would sometimes
convert the organization’s powder cocaine into crack cocaine. He would then give it to
others, such as Jackson, to sell. Jackson testified that during the period of May 2009 to
February 2011, Roberson supplied him with thirty-six ounces of crack cocaine. Roberson
would also occasionally direct another member to pick up powder cocaine from a
supplier in Wichita, Kansas, and bring it directly to him.
Cooper began distributing drugs for the organization in the summer of 2009. He
testified that during a seven-month period in 2010, he obtained on a weekly basis roughly
“2¼ to 4½ ounces,” id. at 1300, of crack and powder cocaine from Webb to sell, id. at
1298, and that Roberson was present when Webb was handing it out, id. at 1299.
Chism had children with both Webb and Roberson. She testified that the
organization distributed crack and powder cocaine on a daily basis and that she regularly
interacted with the organization’s members to further their distribution activities.
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Escobedo’s primary role in the organization was as a driver for Webb, Roberson,
and Chism. She testified that “three to five times a week,” she would meet with
Roberson to transport drugs. Id. at 1429.
Fisher was “the number three person in [Webb’s] organization.” Id. at 1715-16.
She sold drugs and would travel to Wichita to “pick up larger amounts of cocaine.” Id. at
913. On March 2, 2010, police met with Fisher to recruit her as a confidential informant.
Webb evidently learned of that meeting.
Toward the evening, Webb got together with Roberson, Chism, and Escobedo to
discuss “the[ ] need[ ] to move the drugs . . . because . . . [Fisher] was an informant.” Id.
at 1434. Roberson handed Chism a gun and told her to clean it. Afterward, Roberson
asked Chism if Webb had told her what he (Roberson) “ha[d] to do?” Id. at 1494-95.
After she said “[n]o,” id. at 1495, Roberson “said that he needed [her] and [Escobedo] to
come pick him up” from an alley, id. at 1499, in fifteen or twenty minutes, id. at 1500.
Chism and Escobedo drove to the alley around midnight, looking for Roberson.
He ran up to the car, and got into the back seat. “[O]ut of breath” and nervous, he
exclaimed, “Rat bitch,” and he directed them to “Go, go, get me out of here.” Id. at 1505.
As Escobedo was driving, she could see Roberson “wiping something . . . with the edge
of his sweater.” Id. at 1450. When they pulled over, Roberson tried to hand the object to
Chism, telling her to “drop [it] off in the lake,” she refused and then exited the vehicle
with Escobedo and walked home. Id. at 1451.
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Not far from where Chism and Escobedo picked up Roberson, police found Fisher
shot to death in her car. Shell casings from the scene were consistent with a .40 caliber
handgun.
Meanwhile, Roberson’s wife drove to his location and picked him up. They
headed to a Wal-Mart store. Along the way, Roberson began “[t]o throw clothes out the
window” and change into clothes brought by his wife. Id. at 1593-94. After they parked
at the store, as they were entering, they walked “right by” Webb, id. at 1596, who had
gone to the store to “be seen on the cameras,” id. at 1498. Roberson and his wife bought
several items and returned home.
On the night of Fisher’s murder, Cooper spoke with Webb. “[Webb] told [him]
that [Fisher] was killed that night and that [Roberson] killed her.” Id. at 1306. Several
days later, Cooper spoke with Roberson, who admitted “he had killed [Fisher]” and “he
had [Webb] go to Wal-Mart [to be seen on the security cameras] because . . . he didn’t
want nothing to happen to [Webb].” Id. at 1313.
Raschon Smith was Roberson’s friend and one of Webb’s former customers.
Smith encountered Webb one evening at a local bar in the fall of 2010. While attempting
to recruit Smith into the organization, Webb said that he was working with Roberson and
that “what happened to [Fisher] . . . was some of their work,” id. at 1673. Roberson later
spoke with Smith, asking him to “get on the team so we could get rid of some of these
rats around here.” Id. at 1675. Roberson further told him that he had “put some work in
on [Fisher] and that . . . he had to do that for the team,” meaning “[k]illing her.” Id. at
1675-76. Roberson explained he was concerned she might “bring the organization or the
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team down.” Id. at 1678. Roberson also admitted throwing the murder weapon “in the
lake.” Id. at 1677.
Barbara Shaw frequently bought crack cocaine from Roberson. Once, when
Roberson suspected she might be cooperating with police, he warned her: “Look what I
did to [Fisher]” and “Look what happened to her.” Id. at 1641.
In October 2011, Webb, Roberson, and other members of the organization were
indicted on drug-conspiracy and murder charges. Roberson was convicted as charged
and the jury found by special verdict that he had conspired to distribute 280 grams or
more of crack cocaine and 5 kilograms or more of powder cocaine.
Roberson moved for a new trial, arguing insufficiency of the evidence and
challenging the jury instruction for murder to prevent a person from providing
information to a law enforcement officer. He later supplemented the motion to raise the
government’s failure to disclose Cooper’s involvement in a 2001 shooting. The district
court denied the motion.
At sentencing, Roberson sought to avoid mandatory life sentences on counts one
and two on the basis that the finality of two prior drug convictions was not submitted to
the jury and proven beyond a reasonable doubt. The district court rejected the argument
and imposed three concurrent life sentences.
Roberson now appeals.
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DISCUSSION
I. Jury Instruction for Murder
Roberson challenges the jury instruction for murder to prevent communication
with a law enforcement officer. That instruction is based on the federal witness
tampering statute, 18 U.S.C. § 1512(a)(1)(C). The statute criminalizes “kill[ing] another
person, with intent to . . . prevent the communication by any person to a law enforcement
officer . . . of the United States of information relating to the commission or possible
commission of a Federal offense.” Id.
The trial court’s § 1512(a)(1)(C) instruction required the jury to find that
Roberson killed Fisher “with the intent to prevent her from communicating with law
enforcement officers about the commission or possible commission of federal offenses,
namely, the distribution of cocaine and cocaine base . . . and conspiracy to distribute”
those substances. R., Vol. I at 181. Roberson argues the instruction is deficient because
it failed to describe “law enforcement officers” as “federal law enforcement officers.”
According to Roberson, omission of the word “federal” left “open the probability that the
jury would convict solely on the basis that the information was transmitted solely to local
law enforcement personnel.” Aplt. Opening Br. at 19-20.
“We review de novo whether jury instructions, as a whole, correctly state the law
and provide the jury with an understanding of the issues.” United States v. Little,
829 F.3d 1177, 1181 (10th Cir. 2016). We will reverse “only if we have substantial
doubt that the jury was fairly guided.” Id. (internal quotation marks omitted).
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We have no doubt that the trial court’s instruction fairly guided the jury under
§ 1512(a)(1)(C). The Supreme Court has explained that, in a case such as this one, where
the defendant kills without
particular federal law enforcement officers in mind[,] the Government must
show a reasonable likelihood that, had, e.g., the victim communicated with
law enforcement officers, at least one relevant communication would have
been made to a federal law enforcement officer. That is to say, where the
defendant kills a person with an intent to prevent communication with law
enforcement officers generally, that intent includes an intent to prevent
communications with federal law enforcement officers only if it is
reasonably likely under the circumstances that (in the absence of the
killing) at least one of the relevant communications would have been made
to a federal officer.
. . . [T]he Government must show that the likelihood of
communication to a federal officer was more than remote, outlandish, or
simply hypothetical.
Fowler v. United States, 563 U.S. 668, 677-78 (2011). The trial court’s instruction
utilized this very same language.1 Consequently, the instruction explained the requisite
1
The jury instruction concluded with Fowler’s language:
[Y]ou must find that the government has proved a reasonable
likelihood that had Crystal K. Fisher communicated with law enforcement
officers, at least one relevant communication would have been made to a
federal law enforcement officer. That is to say, if you find that the
defendant killed Crystal K. Fisher with the intent to prevent communication
with law enforcement officers generally, that intent includes an intent to
prevent communications with federal law enforcement officers only if it is
reasonably likely under the circumstances that (in the absence of the
killing) at least one of the relevant communications would have been made
to a federal officer.
To that end, the Government must show that the likelihood of
communication to a federal officer was more than remote, outlandish, or
simply hypothetical.
R., Vol. I at 182 (emphasis in original).
7
federal nexus where, as here, “the defendant did not have federal law enforcement
officers (or any specific individuals) particularly in mind.” Id. at 670. We therefore
reject Roberson’s contention that the jury was able to convict him under § 1512(a)(1)(C)
only as to potential communications with local law enforcement officers. See United
States v. Almaraz, 306 F.3d 1031, 1037 (10th Cir. 2002) (“We presume jurors attend
closely to the language of the instructions in a criminal case and follow the instructions
given them.”).
II. Brady v. Maryland2
Roberson argues the prosecution violated Brady by not disclosing Cooper’s
involvement in a shooting that occurred thirteen years before trial. Apparently, in
January 2001, Cooper was in a Riley County, Kansas parking lot observing a drug deal.
The buyer and his friends became aggressive when the seller, Anthony Mitchell, decided
to “scratch the deal.” Mitchell v. State, No. 92,223, 2005 WL 1136872, at *1 (Kan. Ct.
App. May 13, 2005) (per curiam) (internal quotation marks omitted). After Mitchell was
hit with a board, his associate, Private Jeremy Ware, grabbed a gun and either gave it
directly to Mitchell, see id., or handed it to Cooper, who then gave it to Mitchell, see
United States v. Ware, No. 20010923, 2005 WL 6524258, at *1 (A. Ct. Crim. App. Mar.
10, 2005). Mitchell fired at his attackers, killing one and wounding another. Mitchell,
2005 WL 1136872, at *1; Ware, 2005 WL 6524258, at *1. Mitchell and Ware were
prosecuted by State and military authorities, respectively. Cooper was not charged.
Roberson asserts these facts show “that one of the government’s star witness[es] . . . had
2
373 U.S. 83 (1963).
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been involved in a similar homicide” and “would have provided the defense with
substantial evidence to undermine not only Mr. Cooper’s testimony, but also the
testimony of the other, similarly situated cooperating witnesses.” Aplt. Opening Br. at
29.
To establish a Brady violation, Roberson must prove that the government
suppressed evidence of the shooting that was in its possession or control, that the
evidence was favorable to Roberson as exculpatory or impeachment evidence, and that
the evidence was material. See United States v. Erickson, 561 F.3d 1150, 1163 (10th Cir.
2009). Our review is de novo. See id. (“While we ordinarily review a district court’s
denial of a motion for a new trial for an abuse of discretion, when the motion is based on
an alleged Brady violation, we review the district court’s decision de novo.” (internal
quotation marks omitted)).
Preliminarily, Roberson must show that the evidence of Cooper’s involvement in
the 2001 shooting was in the possession or control of the government. To meet that
burden, Roberson speculates that the law enforcement agencies involved in his case—the
Drug Enforcement Agency and the Junction City Police Department—“would have been
aware of the relevance of the information related to Mr. Cooper’s prior criminal
activities” because a Riley County detective assisted in interviewing Fisher. Aplt. Reply
Br. at 6. But Roberson does not explain how Fisher’s interview, which occurred in 2010,
would have revealed any information about Cooper’s activities in 2001. Speculation that
the government “should or could have learned of” purported Brady evidence is
insufficient to show the evidence was in the government’s possession or control. See
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United States v. Hoyle, 751 F.3d 1167, 1172 (10th Cir. 2014) (internal quotation marks
omitted).
Further, it is questionable whether the evidence would have been favorable to
Roberson at all. The evidence is clearly not exculpatory and it bears no resemblance to
Fisher’s murder. It is even unclear whether Cooper had any involvement, given that the
opinion of the Kansas Court of Appeals does not mention him.
Nevertheless, Roberson suggests that evidence showing Cooper “had also been
involved in providing a weapon used in a drug homicide on at least a prior occasion”
would have undermined “his inherent attempts to limit his involvement in the instant
offense.” Aplt. Opening Br. at 28. But Cooper admitted on direct examination that he
had procured “a Glock 40” for Webb “weeks” before Crystal Fisher’s murder. R., Vol. I
at 1315, 1317. Thus, there would have been little impeachment value in showing the jury
that Cooper may have procured a gun for someone other than Webb years earlier.3
And as to materiality, Roberson has not shown “that the likelihood of [achieving]
a different result [through admission of the evidence] is great enough to undermine
confidence in the outcome of the trial.” Smith v. Cain, 132 S. Ct. 627, 630 (2012)
(alteration and internal quotation marks omitted). Indeed, evidence that only
“insignificantly impact[s] the degree of impeachment” will generally not satisfy the
materiality standard. Douglas v. Workman, 560 F.3d 1156, 1174 (10th Cir. 2009). Here,
3
Our discussion presupposes that evidence of the 2001 shooting would have
been admissible. We need not resolve this point here, and merely note that the
Federal Rules of Evidence generally “do not permit the introduction of evidence
regarding collateral matters solely for the purpose of impeaching the credibility of a
witness.” United States v. Velarde, 485 F.3d 553, 561 (10th Cir. 2007).
10
Cooper was impeached with evidence showing that he had been a drug dealer for twenty
years; had been convicted of being a felon in possession of a firearm and was hoping to
get a sentence reduction for his testimony; smoked marijuana daily; and had waited
several years to tell police he had handled the murder weapon and that Roberson had
confessed to him. The evidence of Cooper’s involvement in the 2001 shooting—which
has only minimal impeachment value, if any—would not have affected the weight of
impeachment evidence already offered against him.
Moreover, this is not a close case. The other evidence of Roberson’s guilt “is
strong enough to sustain confidence in the verdict.” See Cain, 132 S. Ct. at 630. In
particular, both Smith and Shaw testified that Roberson made comments indicating he
killed Fisher. Chism and Escobedo testified they picked up a nervous and out-of-breath
Roberson near the murder scene and drove him away until he asked them to dispose of an
item in a lake. And the murder weapon was ultimately found in a pond behind the
Wal-Mart that Roberson visited after the murder.
Roberson’s Brady claim lacks merit.
III. Sufficiency of the Evidence
Roberson argues insufficient evidence supports his § 1512(a)(1)(C) murder
conviction and his drug-conspiracy convictions. “We review sufficiency of the evidence
claims de novo” to determine “whether, 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.” United States v. Faust, 795 F.3d
1243, 1247-48 (10th Cir. 2015) (internal quotation marks omitted).
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In regard to the murder conviction, Roberson appears to contend there is
insufficient evidence he was the murderer. We disagree. In addition to the evidence
cited above in rejecting Roberson’s Brady claim, we note Cooper’s testimony that on the
night of Fisher’s murder, Webb said that Roberson had killed her. Cooper further
testified that several days after the murder, Roberson admitted he killed her.
Consequently, the jury’s finding that Roberson killed Fisher is well “within the bounds of
reason.” United States v. Triana, 477 F.3d 1189, 1195 (10th Cir. 2007) (internal
quotation marks omitted).
As for the drug-conspiracy convictions, Roberson argues the evidence shows that
he was merely “a small level drug distributor,” selling only “a few grams of crack
cocaine” with no involvement in Webb’s organization. Aplt. Opening Br. at 35-36.
Roberson’s argument is contradicted by overwhelming evidence of significant
involvement in Webb’s organization. The evidence showed that Roberson not only
distributed large amounts of powder and crack cocaine for the organization, he acquired
powder cocaine and was involved in converting it to crack cocaine for distribution by
other members. Further, he exercised authority over other members of the organization
and he murdered Fisher to protect the organization.
Substantial evidence supports Roberson’s murder and drug-conspiracy
convictions.
IV. Sentencing
Roberson argues that his prior felony drug convictions could not be used to
support a mandatory life sentence because the finality of those convictions was not
12
presented to the jury and proven beyond a reasonable doubt. This court has repeatedly
stressed, however, that “the ‘fact’ of a prior conviction may be found by a sentencing
judge rather than a jury.” United States v. Prince, 647 F.3d 1257, 1271 (10th Cir. 2011).
Roberson concedes his argument is foreclosed by circuit precedent, but he raises it “to
preserve the argument for review to the Supreme Court and/or to take advantage of a
favorable ruling from the Supreme Court.” Aplt. Opening Br. at 32. Accordingly, we
reject his argument.
CONCLUSION
We affirm Roberson’s convictions and sentence.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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