United States v. Temple ( 2011 )


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  •                                                                               FILED
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS                       May 24, 2011
    Elisabeth A. Shumaker
    TENTH CIRCUIT                           Clerk of Court
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.                                               No. 09-3289
    (D. Ct. No. 07-CR-20168-JWL-20)
    LATYSHA TEMPLE,                                              (D. Kan.)
    Defendant - Appellant.
    ORDER AND JUDGMENT *
    Before O’BRIEN, Circuit Judge, and SEYMOUR and TACHA, Senior Circuit
    Judges.
    In 2009, a jury found defendant-appellant Latysha Temple guilty of
    conspiracy to possess with intent to distribute fifty grams or more of cocaine base
    in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), (b)(1)(A)(iii), and 846. On
    appeal, Ms. Temple challenges various aspects of her conviction and sentence.
    We take jurisdiction under 28 U.S.C. § 1291 and AFFIRM.
    *
    This order and judgment is not binding precedent except under the doctrines of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.
    I. BACKGROUND
    Ms. Temple’s conviction stems from her participation in a vast conspiracy
    to distribute cocaine and cocaine base in and around Kansas City, Kansas and
    Kansas City, Missouri from January 2006 to November 2007. The Drug
    Enforcement Administration began investigating the conspiracy in 2006 at the
    request of the Leavenworth, Kansas police department. After attempting various
    traditional investigative techniques (e.g., surveillance, confidential informants,
    and search warrants) and finding them to be ineffective means of uncovering the
    size and scope of the conspiracy, federal law enforcement officers decided to seek
    wiretaps.
    From August to October 2007, officers submitted applications for wiretaps
    and for extensions of wiretaps on the phones of multiple suspected conspirators.
    One of the phones ultimately tapped by the officers belonged to Monterial
    Wesley, a man who was conducting a large-scale drug trafficking operation from
    his home in Leavenworth, Kansas. Officers soon learned that Mr. Wesley and
    Ms. Temple were engaged in a romantic relationship, and several calls intercepted
    from Mr. Wesley’s phone suggested that Ms. Temple permitted him to store drugs
    and money at her home. For example, in one intercepted conversation, Mr.
    Wesley and a co-conspirator, Keith McDaniel, discussed how much cocaine Mr.
    McDaniel had left from what he purchased “the other day over at Tysha’s house.”
    In another intercepted conversation, co-conspirator Shevel Foy explained to Mr.
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    Wesley that he gave Mr. Wesley’s “girl” “size 40 engines.” Officers believed this
    was coded language meaning that Mr. Foy had given Ms. Temple $40,000 for two
    kilograms of cocaine. And in yet another conversation, Ms. Temple asked Mr.
    Wesley for money and he told her to take some out of what she took home the day
    before.
    In addition, several intercepted calls suggested that Ms. Temple also
    engaged in reconnaissance and counter-surveillance on behalf of the conspiracy.
    For instance, officers intercepted a call in which Ms. Temple explained to Mr.
    Wesley that she had obtained information regarding the identity of people who
    had attempted to break into Mr. Foy’s home to steal drug profits. In a subsequent
    intercepted call, Mr. Wesley and Ms. Temple expressed concern that Ms.
    Temple’s home could be similarly burglarized, and Ms. Temple explained that she
    had found a better place for Mr. Wesley to keep his “bag.” 1 And in another call,
    Mr. Wesley explained to Ms. Temple that he had a firearm in his car and therefore
    he wanted her to drive by another co-conspirator’s home to see if the police were
    there.
    On November 27, 2007, officers arrested Mr. Wesley while he was
    attempting to purchase five kilograms of cocaine at a car wash. During the arrest,
    officers seized a firearm from Mr. Wesley’s vehicle.
    1
    Throughout the investigation, the officers intercepted multiple calls in which
    various conspirators referred to “bags.” The officers concluded that “bags” was coded
    language for large amounts of money.
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    On February 1, 2008, Ms. Temple was charged, along with twenty-three
    other individuals, with conspiracy to possess with intent to distribute fifty grams
    or more of cocaine base and five kilograms or more of cocaine. Prior to trial, a
    number of Ms. Temple’s co-defendants filed motions to suppress the evidence
    obtained from the wiretaps. Ms. Temple joined in several of these motions. The
    district court denied the motions to suppress on February 18, 2009, concluding
    that the wiretaps were lawful.
    At trial, several government witnesses testified regarding Ms. Temple’s
    role in the conspiracy. First, Officer Eric Jones described the numerous phone
    calls intercepted during the conspiracy investigation, including those implicating
    Ms. Temple. As discussed above, these calls suggested that Ms. Temple’s
    primary role in the conspiracy was to store Mr. Wesley’s drugs and money at her
    home. Next, Mr. Wesley’s drug source, Thomas Humphrey, testified that Ms.
    Temple had accompanied Mr. Wesley to several drug transactions. Finally,
    Chauncey Anderson testified that he had seen Mr. Wesley hide cocaine in a closet
    at Ms. Temple’s home.
    Ms. Temple testified in her own defense, claiming that she never knowingly
    participated or assisted in any illegal activity. Specifically, Ms. Temple testified
    that she was not aware that Mr. Wesley routinely kept illicit profits at her home
    or that he was engaged in drug trafficking. She also stated that her conversation
    with Mr. Wesley regarding “bags” actually pertained to bags of Mr. Wesley’s
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    clothes. Finally, Ms. Temple testified that she never participated in any cocaine
    transactions and that Mr. Wesley never stored cocaine at her home.
    At the conclusion of the evidence, Ms. Temple moved for a judgment of
    acquittal, challenging both venue and the sufficiency of the government’s
    evidence. The district court denied the motion and proceeded to instruct the jury
    on the multiple charges against the various defendants. With respect to the
    conspiracy charge, the district court instructed the jury that it could convict the
    defendants as either principals or as aiders and abettors to the conspiracy. Ms.
    Temple did not object to this or any other jury instruction.
    The jury ultimately found Ms. Temple guilty of conspiracy. The court then
    sentenced her to 151 months’ imprisonment based in part on sentence
    enhancements for possession of a firearm and obstruction of justice. This appeal
    followed.
    II. DISCUSSION
    A.    Legality of the Wiretaps
    On appeal, Ms. Temple first argues that the district court erred in refusing
    to suppress the wiretap evidence because: (1) the officers failed to properly
    establish authorization in their wiretap applications; and (2) the affidavits in
    support of the wiretaps did not establish necessity. These wiretap challenges are
    identical to those raised by Mr. Foy in Case No. 09-3314, United States v. Foy.
    Furthermore, Ms. Temple’s arguments target the very same wiretap applications
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    as those at issue in Foy. Accordingly, we adopt our analysis from Foy and affirm
    the district court’s refusal to suppress the wiretap evidence for the reasons stated
    in that opinion.
    B.    Venue
    Ms. Temple next contends that the government failed to establish that
    venue was proper in the District of Kansas for the conspiracy charge against her.
    Specifically, Ms. Temple argues that there was no evidence that she ever
    committed a criminal act in Kansas.
    Although Ms. Temple is correct that the government failed to produce
    evidence that she ever committed a criminal act in Kansas, she incorrectly
    suggests that the government was required to produce such evidence in order to
    establish the District of Kansas as a proper venue for the conspiracy charge.
    Indeed, we have long held that when the crime charged is conspiracy, “venue as
    to prosecution of all members of the conspiracy lies either in the jurisdiction in
    which the conspiratorial agreement was formed or in any jurisdiction in which an
    overt act in furtherance of the conspiracy was committed by any of the
    conspirators.” United States v. Rinke, 
    778 F.2d 581
    , 584–85 (10th Cir. 1985)
    (quotations and alterations omitted) (emphasis added).
    Here, the government produced ample evidence that various conspirators,
    namely Mr. Wesley, committed acts in furtherance of the conspiracy in the
    District of Kansas. Indeed, there is substantial evidence in the record, including
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    Mr. Wesley’s guilty plea to the conspiracy charge, which demonstrates that Mr.
    Wesley kept a residence in Kansas and that he coordinated numerous drug
    transactions from that residence. Accordingly, venue was proper in the District of
    Kansas with respect to the conspiracy charge against Ms. Temple.
    C.    Aiding and Abetting Jury Instruction
    Ms. Temple next argues that the district court erred in instructing the jury
    that she could be convicted of conspiracy either as a principal actor or as an aider
    and abettor to the conspiracy. She does not, however, challenge the specific
    instruction provided by the district court, nor does she challenge whether the
    evidence presented by the government supported an aiding and abetting
    instruction. Rather, she contends that as a general rule “[o]ne cannot aid and abet
    a conspiracy.”
    Ms. Temple did not object to the aiding and abetting instruction below;
    therefore, we review her argument on appeal for plain error. United States v.
    Bedford, 
    536 F.3d 1148
    , 1153 (10th Cir. 2008). “Plain error exists only where (1)
    there was error, (2) that is plain, (3) that affects substantial rights, and (4) that
    seriously affects the fairness, integrity or public reputation of judicial
    proceedings.” 
    Id. (quotations omitted).
    We have held that aiding and abetting is not a separate criminal offense; it
    is an alternative charge in every substantive count regardless of whether it is
    alleged in the indictment. See United States v. Lewis, 
    594 F.3d 1270
    , 1286 (10th
    -7-
    Cir. 2010). Furthermore, we have expressly upheld both a jury instruction
    charging a defendant with aiding and abetting a conspiracy, United States v.
    Willis, 
    890 F.2d 1099
    , 1104–05 (10th Cir. 1989), and a defendant’s actual
    conviction for aiding and abetting a conspiracy. United States v. Langston, 
    970 F.2d 692
    , 708 (10th Cir. 1992) (“[T]he evidence concerning Langston’s
    conviction on the charge of conspiracy to manufacture amphetamine is not strong.
    Nevertheless, we feel it is sufficient to hold, as we do, that . . . it supports
    Langston’s conviction as one who aided and abetted in the conspiracy.”). In light
    of this precedent, we cannot say that the district court committed any error, let
    alone plain error, in instructing the jury on aiding and abetting the conspiracy.
    See also United States v. Oreto, 
    37 F.3d 739
    , 751 (1st Cir. 1994) (“[I]t appears
    that most if not all courts to consider the issue have held that a defendant may be
    convicted of aiding and abetting a conspiracy.”).
    D.    Sufficiency of the Evidence
    Ms. Temple next argues that she should have been granted a judgment of
    acquittal because the government failed to produce sufficient evidence to convict
    her of conspiracy. We review the sufficiency of the evidence de novo. 
    Lewis, 594 F.3d at 1274
    . The critical inquiry is whether, viewing the evidence in the
    light most favorable to the government, any reasonable jury could have found the
    defendant guilty beyond a reasonable doubt. 
    Id. In conducting
    this inquiry, “we
    may neither weigh conflicting evidence nor consider the credibility of witnesses.”
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    United States v. Pappert, 
    112 F.3d 1073
    , 1077 (10th Cir. 1997) (quotations
    omitted).
    In order to convict a defendant as a principal actor in a conspiracy, the
    government must prove: (1) an agreement by two or more persons to violate the
    law; (2) knowledge of the objectives of the conspiracy; (3) knowing and voluntary
    involvement in the conspiracy; and (4) interdependence among co-conspirators.
    United States v. Hutchinson, 
    573 F.3d 1011
    , 1035 (10th Cir. 2009). To obtain a
    conviction for aiding and abetting a conspiracy, however, the government must
    prove: (1) the existence of a conspiracy; (2) the defendant associated herself with
    the conspiracy; and (3) the defendant acted with the intent to bring about the
    success of the conspiracy. See 
    Langston, 970 F.2d at 705
    . When, as is the case
    here, the jury is instructed on both a principal and an aiding and abetting theory,
    we must affirm the conviction if the government presented sufficient proof that
    the defendant was either a principal or an aider and abettor. 
    Id. at 706.
    Following our comprehensive review of the record, we are satisfied that the
    government presented sufficient evidence to, at the very least, convict Ms.
    Temple of aiding and abetting the conspiracy. First, it is not disputed that the
    government established the existence of a conspiracy. Second, the government
    produced significant evidence of Ms. Temple’s association with the conspiracy,
    including evidence that Ms. Temple: (1) accompanied Mr. Wesley on drug
    transactions; (2) stored drugs and drug profits at her home; (3) conducted at least
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    one drug transaction on Mr. Wesley’s behalf; and (4) conducted reconnaissance
    and counter-surveillance on behalf of the conspiracy. Third, despite Ms.
    Temple’s testimony to the contrary, the jury could reasonably infer from this
    evidence that Ms. Temple undertook these actions with the intent to bring about
    the conspiracy’s success. Accordingly, we conclude that there was ample
    evidence on which a reasonable jury could convict Ms. Temple of aiding and
    abetting the conspiracy.
    E.    Sentence
    Ms. Temple’s final arguments on appeal relate to her 151-month prison
    sentence. Specifically, she contends that the district court erred in applying
    enhancements for possession of a firearm and obstruction of justice. We review
    the sentencing court’s legal conclusions de novo and its factual findings for clear
    error. United States v. Cherry, 
    572 F.3d 829
    , 831 (10th Cir. 2009).
    1.     Firearm Enhancement
    Section 2D1.1(b)(1) of the Guidelines provides for a two-level
    enhancement “[i]f a dangerous weapon (including a firearm) was possessed.” The
    Application Notes explain that “[t]he enhancement should be applied if the
    weapon was present, unless it is clearly improbable that the weapon was
    connected with the offense.” U.S.S.G. § 2D1.1, cmt. n.3; see also United States
    v. Heckard, 
    238 F.3d 1222
    , 1233 (10th Cir. 2001). The enhancement applies
    when a co-defendant possessed a firearm, so long as possession was reasonably
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    foreseeable to the defendant. See United States v. Underwood, 
    938 F.2d 1086
    ,
    1090 (10th Cir. 1991) (holding that under §§ 1B1.3(a)(1)(B) and 2D1.1(b)(1), a
    defendant may be held accountable for reasonably foreseeable weapons
    possession by a co-defendant). But see United States v. Goddard, 
    929 F.2d 546
    ,
    548 (10th Cir. 1991) (approving of “reasonably foreseeable” approach but
    suggesting that foreseeablity is not required in conspiracy cases).
    The government bears the initial burden of showing possession by a
    preponderance of the evidence. 
    Heckard, 238 F.3d at 1233
    . “The government’s
    initial burden is met when it shows that a weapon was located near the general
    location where at least part of a drug transaction occurred.” 
    Id. (quotations omitted).
    If the government meets its initial burden, the defendant must
    demonstrate that it is clearly improbable that the weapon was connected with the
    offense. 
    Id. In this
    case, it is undisputed that Mr. Wesley was arrested as he attempted
    to purchase five kilograms of cocaine and that officers seized a firearm from Mr.
    Wesley’s vehicle at the time of his arrest. Thus, the government met its initial
    burden of establishing possession by a preponderance of the evidence. Ms.
    Temple, however, does not point to anything in the record which would suggest
    that it was clearly improbable that the firearm discovered in Mr. Wesley’s vehicle
    was connected with the drug trafficking conspiracy. Rather, Ms. Temple argues
    that she did not actually know that he possessed them in connection with drug
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    trafficking. Ms. Temple’s subjective knowledge (or lack thereof) is insufficient
    to meet her burden of “clear improbability.” Indeed, we have observed that “guns
    are ‘tools of the trade’ in the distribution of illegal drugs,” and we have noted that
    “it is highly unlikely the presence of [a] handgun in a car containing a large
    amount of crack cocaine was merely coincidental.” United States v. McKissick,
    
    204 F.3d 1282
    , 1293 (10th Cir. 2000).
    Moreover, Ms. Temple concedes that she was aware Mr. Wesley sometimes
    possessed firearms; thus, as a matter of law, she may be held accountable at
    sentencing for Mr. Wesley’s firearm possession. See 
    Underwood, 938 F.2d at 1090
    . Accordingly, we conclude that the district court did not err in enhancing
    Ms. Temple’s sentence pursuant to § 2D1.1(b)(1).
    2.     Obstruction Enhancement
    Section 3C1.1 of the Guidelines provides for a two-level enhancement of a
    defendant’s offense level when “the defendant willfully obstructed or impeded, or
    attempted to obstruct or impede, the administration of justice with respect to the
    investigation, prosecution, or sentencing of the instant offense of conviction, and
    [] the obstructive conduct related to [] the defendant’s offense of conviction . . . .”
    This enhancement accounts for perjured testimony offered by a defendant at trial,
    which we have defined as “false testimony concerning a material matter with the
    willful intent to provide false testimony.” United States v. Anderson, 
    189 F.3d 1201
    , 1213 (10th Cir. 1999) (quotations omitted).
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    “The mere fact that a defendant testifies to his or her innocence and is later
    found guilty by the jury does not automatically warrant a finding of perjury.”
    United States v. Markum, 
    4 F.3d 891
    , 897 (10th Cir. 1993). Rather, “in order to
    apply the § 3C1.1 enhancement, it is well-settled that a sentencing court must
    make a specific finding—that is, one which is independent of the jury verdict—
    that the defendant has perjured herself.” 
    Anderson, 189 F.3d at 1213
    (quotations
    omitted). In other words, “the trial court must specify which portion of the
    defendant’s testimony it considers to be false.” 
    Markum, 4 F.3d at 897
    .
    Here, in applying the obstruction enhancement, the sentencing court stated:
    I believe that Ms. Temple perjured herself at trial, that she
    intentionally testified falsely on material matters in order to affect
    the outcome of the case. Ms. Temple denied that . . . she knew that
    Mr. Wesley was involved in drug dealing and [testified] that she
    didn’t help him in any way with his drug dealing. I believe that was
    false when she said it at trial . . . I’m satisfied that Ms. Temple was
    well aware of what Mr. Wesley was doing and that she was
    participating in it herself by way of assisting him by driving him to
    transactions, loaning a car, or storing things at her house . . . .
    Given the significant amount of evidence against Ms. Temple, which is
    summarized above, we cannot say that the district court clearly erred in finding
    that Ms. Temple committed perjury by testifying that she was completely
    oblivious to Mr. Wesley’s drug trafficking activities. Accordingly, we affirm the
    district court’s application of § 3C1.1.
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    III. CONCLUSION
    For the foregoing reasons, we AFFIRM Ms. Temple’s conviction and
    sentence.
    ENTERED FOR THE COURT,
    Deanell Reece Tacha
    Circuit Judge
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