United States v. Chandler ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
MAR 1 2001
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 00-3130
v. (D. Kansas)
CECIL W. CHANDLER III, (D.C. No. CR-99-40044-01)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before EBEL, ANDERSON, and BALDOCK, Circuit Judges.
Cecil W. Chandler III, was convicted following a jury trial on two counts of
conspiracy to distribute in excess of 50 grams of cocaine base in violation of 21
U.S.C. §§ 846 and 841(b)(1)(A) and 18 U.S.C. § 2, and sentenced to concurrent
terms of 360 months in prison on each count. On appeal, Defendant argues that:
(1) a remark made by the district court disparaged his counsel to the point of
denying him a fair trial; (2) the district court violated his right to confront his
*
This order and judgment is not binding precedent, except under the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.
accusers by curtailing his counsel’s cross-examination of two key government
witnesses and did so in a way that further denigrated his counsel before the jury
thereby preventing him from receiving a fair trial; (3) the district court erred in
admitting a photograph because it was more prejudicial than probative and
contained a handwritten caption that was improperly authenticated; (4) a
statement made by the prosecutor in his closing argument incited and inflamed the
jury thereby denying him a fair trial; (5) the cumulative effect of the foregoing
errors, even if harmless when considered individually, was to violate his right to a
fair trial; (6) the evidence was insufficient to support his conviction, and, as a
result, the district court’s denial of his motion for acquittal on that basis was
error; and (7) the district court erred in applying the 100:1 crack cocaine
enhancement under U.S.S.G. §2D1.1(c) and the four level organizer/leader
enhancement under U.S.S.G. §3B1.1(a) because the evidence did not support the
application of either enhancement. We exercise jurisdiction pursuant to 28 U.S.C.
§ 1291, and affirm.
I. BACKGROUND
The defendant was indicted in a two count indictment on May 27, 1999.
Count I charged him with conspiring with David Seabury from approximately
January 1, 1997, to September 30, 1997, to distribute crack (the “Seabury
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conspiracy”). Count II charged Defendant with conspiring with Ronnie Jones
from approximately November 1, 1996, to May 31, 1997, to distribute crack (the
“Jones conspiracy”). The evidence, when viewed in the light most favorable to
the government, 1 establishes the following facts.
A. The Seabury Conspiracy
Defendant sold crack for a living. R. Vol. III at 8. Seabury and Defendant
began buying crack together in 1997. Id. at 8-9. Their first joint purchase
occurred in January, 1997. Defendant arranged to meet the seller, a person
unknown to Seabury, in a grocery story parking lot in Topeka, Kansas. Id.Seabury and Defendant then drove to Topeka, Kansas, where Defendant paged the
seller. Id. at 10. When the seller approached their car, Seabury gave Defendant
$500 which Defendant put together with his own $500 and handed to the seller in
exchange for one ounce of crack. Id. at 10-11. After purchasing crack in Topeka,
Defendant and Seabury divided it equally and then sold it separately. Id. at 12.
Defendant had others sell his crack for him. Id. Specifically, Seabury saw
Jermaine Archibald, a/k/a Bastard, sell drugs for Defendant. Id. at 14.
Defendant and Seabury made two additional joint purchases from the
Topeka seller in the same manner. The second joint purchase of crack occurred in
1
See United States v. Hanzlicek, 187 F.3d 1228, 1239 (10th Cir. 1999).
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May 1997, and differed from the first only in that two ounces were purchased for
$2000. The third and final joint purchase made by Seabury and Defendant took
place in July 1997. That time, four ounces of crack were purchased for $4000.
Seabury and Defendant had Seabury’s mother rent cars for them, generally for one
month at a time, which they used to drive to Topeka to buy crack and for other
purposes. Id. at 63-65. Defendant and Seabury each paid half of the rental
charge and they shared the use of the rental cars equally. Id.
During the period of time in which Defendant and Seabury were buying
crack in Topeka, they spent a significant amount of time together and even jointly
rented a home in Ogden, Kansas. Id. at 5-6. At trial, the government introduced
a photograph of Defendant and Seabury in which Defendant is displaying a large
amount of cash for the camera. See id. at 23-24, Govt’s Ex. No. 2. Seabury
confirmed that the money Defendant is holding in that photograph came from
selling crack. Id.
B. The Jones Conspiracy
In November 1996, Defendant approached Ronnie Jones about buying
drugs. Id. at 132. Jones bought two ounces of crack from Defendant that month,
and one ounce a month thereafter until May 1997. Id. at 132-36. In these
purchases Jones acted as a middleman, purchasing the crack from Defendant for a
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person named “Beedy-bump” Id. at 135. Beedy-bump gave Jones the money he
used to make the purchases and paid him approximately $200 for completing each
transaction. 2 Id. at 135-36.
C. Other Evidence of the Charged Conspiracies
Jurlene Lucas a/k/a Jurlene Jackson, the mother of one of Defendant’s
girlfriends, heard Defendant discuss his sale of drugs numerous times during the
nine years that she has known him. Id. at 78. In 1997, Defendant told Lucas that
he was buying his crack cocaine in Topeka and also bragged that he had fifteen
people working for him in his drug operation. Id. at 78-79. Lucas identified
Keisha Green, Tamika Moore, a woman named “Lum,” and Archibald as some of
the people that worked in Defendant’s drug ring. Id. at 80. She often saw
Defendant with Seabury, and heard both Seabury and Archibald brag about selling
drugs. Id. at 81.
Sometime during the summer of 1997, Defendant asked Lucas to keep
$4000 for him. Id. at 77-78. In September of 1997, after he had retrieved the
original $4000, Defendant asked Lucas to hold an additional $8,500 for him. Id.
2
Defendant states in his brief that Jones had purchased crack in the past
from Beedy-bump. Appellant’s Br. at 28. Defendant misreads the trial testimony.
Beedy-bump gave Jones money to buy crack from Defendant for him. When
Jones states, “[a]t that time I was getting it from a guy named Beedy-bump,” the
“it” refers to the purchase money, not crack. R. Vol. III at 135.
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at 86. Later, he asked her to hold another $3000. Id. at 89-90. Police eventually
seized $10,960 of that money and found that most of it was in $20 bills. R. Vol.
IV at 184.
At the time of the alleged conspiracies, crack was commonly sold in one-hit
$20 pieces. Id. at 186, R. Vol. III at 18-19. Those one-hit pieces of crack are
commonly packaged by dropping them in the corner of a sandwich baggie, tying a
knot, and cutting the corner off above the knot. Id. at 12. Brandon Grubs, a
police officer, found small empty plastic bags and $230 in cash in Defendant’s
shoes when he searched Defendant following his arrest in December of 1996. R.
Vol. IV at 209. When Grubs asked him what the baggies were for, Defendant
replied that sometimes his stuff is not packaged and he has to do it himself. Id.
In June 1998, police executed a search warrant at the home of Natasha
Moore, Seabury’s sister and another girlfriend of Defendant. Over $3000 worth
of rental car agreements in Seabury’s mother’s name, from the first six months of
1997, were found. Id. at 198-99. One of the agreements listed Defendant as a
driver and Defendant had been stopped by police in the rental car covered by that
particular agreement. Id. at 199-200. Several letters from Defendant to Moore
were also recovered. One of the letters contained a photograph of Defendant
taken while he was incarcerated. The photograph shows Defendant in the center
surrounded by approximately six other men. The handwritten caption on the
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photo reads: “I keep a Firm no matter where I’m at, baby.” Id. 200-04. Ron
Espy, a police officer, stated that the handwritten caption appeared to match the
handwriting of the other letters from Defendant to Moore which were recovered
during the search. Id. at 200-01. Seabury, Lucas, and Espy all testified that
Defendant referred to his drug distribution organization as “The Firm.” Id. at
202-03, R. Vol. III at 22, 83.
In March or April of 1997, Defendant and Jones were both confined at the
federal pretrial detention facility in Leavenworth, Kansas. Jones and Defendant
had a conversation there in which Defendant told Jones that Archibald was
running his drug business while he was incarcerated. Id. at 141-42. After Jones
had stopped purchasing crack from Defendant, Jones saw Defendant packaging
crack in August 1997 at his Ogden, Kansas, home. Id. at 136-37.
Jones and Seabury both claimed to be very familiar with the appearance of
crack, Seabury claiming to have seen it over 500 times and Jones, over 100 times.
Id. at 18, 138. Both Seabury and Jones testified that the substance purchased
from and with Defendant was crack. Finally, in June 1997, during the period of
the alleged Seabury Conspiracy, Defendant was arrested for possession of crack.
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R. Vol. IV at 225-26. Defendant pled to possession of crack and a journal entry
of his conviction was entered into evidence. 3 Id. at 226-28.
Seabury, Lucas and Jones all entered into agreements to testify with the
federal prosecutor hoping to avoid indictment or to obtain lenient sentences.
D. Sentencing
The district court’s application of the 100:1 crack cocaine enhancement
under U.S.S.G. §2D1.1(c)(2) together with the organizer/leader enhancement
pursuant to U.S.S.G. §3B1.1(a) resulted in a total offense level of 40. The district
court determined Defendant’s criminal history category to be VI. The resulting
guideline sentence range was 360 months to life imprisonment. Defendant was
sentenced to concurrent terms of 360 months imprisonment and ten years
supervised release on each count.
It is not clear from the Record whether Defendant pled guilty or nolo
3
contendere.
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II. DISCUSSION
A. Alleged Judicial Misconduct
1. The District Court’s Statement
The district court was forced to delay the start of Defendant’s trial because
defense counsel was at another hearing in the same courthouse, and that hearing
had run late. When defense counsel finally arrived, the district court stated:
All right, the jurors are all present. Ladies and gentlemen, I
apologize to you, I had no idea that hearing would last that long and I
almost sent the U.S. Marshals to drag the attorney out, but I – I am
disappointed. All right, I think we’re ready to proceed. You may
call your first witness.
R. Vol. III at 3. Defendant contends that this statement irreparably denigrated his
counsel in the eyes of the jury and made it impossible for him to obtain a fair
trial. Counsel, however, made no objection at the time.
Before we can correct an error not raised at trial, we must be satisfied that
there was a plain error that affected Defendant’s substantial rights. Johnson v.
United States, 520 U.S. 461, 466-67 (1997). For an error to impact Defendant’s
substantial rights, “[i]t must have affected the outcome of the district court
proceedings.” United States v. Olano, 507 U.S. 725, 734 (1993). After reviewing
the statement, we conclude that it does not even begin to approach the plain error
threshold, or, for that matter, error under any other standard of review.
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2. Limitation of Cross-Examination
The district court intervened during defense counsel’s cross-examination of
Seabury and Lucas. Defense counsel had asked Seabury repeatedly about a pro se
motion he filed, each time getting the same response. When defense counsel
began questioning Seabury about the matter again, the district court stated,
“[w]ell, let’s leave that. We’ve been with that – over that about six times. Move
on to – something else.” R. Vol. III at 60. In his cross-examination of Lucas,
defense counsel was attempting to discover when she stopped using marijuana.
Lucas responded three times to three different questions that she did not
remember when she quit. When defense counsel began a fourth question again
asking Lucas when she quit using marijuana, the district court intervened, stating,
“[a]ccept her – she said she doesn’t remember. Accept what she’s saying.” Id. at
120.
Defendant first claims that the district court used a “caustic” tone of voice
during the interventions, the effect of which was to further denigrate his counsel
in the eyes of the jury and further jeopardize his right to a fair trial. Appellant’s
Br. at 17-18. We disagree and conclude that the court’s comments did not
constitute error.
Defendant also argues that these interventions by the district court violated
his right to confront his accusers. We review the district court’s limitations on
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cross-examination of a witness for an abuse of discretion and we will reverse
“only if any error affected the substantial rights of the accused.” United States v.
Begay, 144 F.3d 1336, 1339 (10th Cir. 1998).
Defendant’s right to cross-examine is not absolute or unlimited. United
States v. Bindley, 157 F.3d 1235, 1240 (10th Cir. 1998). The district court has
broad discretion to limit cross-examination in order to prevent, among other
things, unfair prejudice, confusion, delay and presentation of cumulative
evidence. See United States v. Gault, 141 F.3d 1399, 1403 (10th Cir. 1998);
Miranda v. Cooper, 967 F.2d 392, 402 (10th Cir. 1992). The crucial question is
“whether the jury had sufficient information to make a discriminating appraisal of
the witness’ motives and bias.” Bindley, 157 F.3d at 1240.
The district court’s intervention during defense counsel’s cross-
examination of both Seabury and Lucas occurred only after the same basic
question had been asked and answered numerous times. No new information
would have resulted from asking the same questions yet again. Moreover, our
review of defense counsel’s cross-examination of both Seabury and Lucas reveals
that he more than adequately brought out the agreements each had with the
prosecutor and the alleged perverse motives and bias each might have had as a
result. The jury, therefore, had enough information with which to judge the
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motive and bias of each witness. Accordingly, we conclude that the district court
did not abuse its discretion in this matter.
B. Evidentiary Issues
Defendant claims that the district court erred in admitting into evidence a
photograph taken while Defendant was incarcerated (the “CCA Photograph”) and
a journal entry of a conviction for possession of crack cocaine in June 1997. We
review a trial court’s decision to admit evidence for an abuse of discretion.
United States v. McVeigh, 153 F.3d 1166, 1188 (10th Cir. 1998).
1. CCA Photograph
As indicated above, the CCA Photograph shows Defendant in the middle of
six other people, all of whom are dressed in prison garb and at least one of whom
was identified as a drug offender by Ron Espy. The handwritten caption reads “I
keep a Firm no matter where I’m at, baby.” Defendant raises two claims of error
as to the admission of the CCA Photograph. First, he contends that the
handwritten caption on the CCA Photograph was not properly authenticated and
should not have been admitted.
At trial, Espy, a lay witness with respect to handwriting analysis, testified
that the handwritten caption appeared to match the handwriting in Defendant’s
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letters to Moore. A lay witness may opine as to the genuineness of handwriting if
that opinion is based on a familiarity with the handwriting that was acquired other
than for purposes of the litigation. Fed. R. Evid. 901(b)(2). There is nothing in
the record indicating that Espy was familiar with Defendant’s handwriting outside
of his preparation for the instant case; thus Espy’s purported authentication is
questionable under Rule 901(b)(2).
However, the rules provide for other means of authentication. The
“[a]ppearance, contents, substance, internal patterns, or other distinctive
characteristics, taken in conjunction with circumstances,” can be used to
authenticate the handwritten caption. Fed. R. Evid. 901(b)(4). Authentication
under Rule 901(b)(4) is proper if the appearance, contents, distinctive
characteristics and circumstances of discovery of the CCA Photograph “support a
finding that the matter in question is what its proponent claims.” United States v.
Gutierrez, 576 F.2d 269, 275 (10th Cir. 1978).
The evidence supporting a finding that the handwritten caption was a
statement of Defendant includes the following: (1) Defendant is prominently
depicted in the CCA Photograph; (2) the caption referred to “The Firm,” a term
three government witnesses said was used by Defendant as a name for his drug
distribution organization; (3) the CCA Photograph was found in a letter from
Defendant to Natasha Moore, his girlfriend; and (4) the CCA Photograph was
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discovered in the master bedroom of Moore’s home along with other letters from
Defendant to Moore. These facts provided the district court with an adequate
basis for finding that the caption was what the government claimed it to be–a
statement written by Defendant. As a result, admission was proper under Rule
901(b)(4).
Defendant also challenges the admission of the CCA Photograph under Fed.
R. Evid. 403, claiming that a picture depicting him in prison garb was highly
prejudicial and that the probativeness of the reference in the caption to “The
Firm” was slight since three witnesses had already testified as to its existence.
We agree that showing the jury a picture of a defendant in prison clothing may be
highly prejudicial in some cases. But, any prejudice to Defendant in this case was
mitigated by the fact that the jury was fully aware from other evidence that
Defendant was incarcerated prior to his trial. Moreover, the CCA Photograph was
highly probative. The caption’s reference to “The Firm” corroborated the
disputed testimony of three key government witnesses.
Because a sufficient basis for authenticating the handwritten caption exists
and no basis for exclusion under Rule 403 has been demonstrated, we conclude
that the district court did not abuse its discretion by admitting the CCA
Photograph.
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2. Past Conviction
At trial, the government introduced a journal entry of Defendant’s June,
1997, conviction for possession of crack as evidence of the alleged Seabury
Conspiracy. Defendant argues that the evidence of this conviction should be
excluded under Fed. R. Evid. 404(b) and under Huddleston v. United States, 485
U.S. 681 (1988), on the grounds that it was more prejudicial than probative and
conveyed to the jury only Defendant’s propensity to commit crime.
Rule 404(b) “does not apply to other act evidence that is intrinsic to the
crime charged.” United States v. O’Brien, 131 F.3d 1428, 1432 (10th Cir. 1997).
With respect to conspiracies, the Eighth Circuit has stated, and we agree, that
“[a]ny drug activity by a conspirator during the conspiracy is relevant evidence of
the existence of the conspiracy.” United States v. Roulette, 75 F.3d 418, 424 (8th
Cir. 1996). In other words, drug activity that occurs during the period of an
alleged drug conspiracy may be relevant evidence of that conspiracy and thus not
Rule 404(b) evidence. Here, that was the case.
Defendant was arrested and convicted for possession of crack cocaine
during the period of the Seabury Conspiracy. That conviction is not unrelated to
the instant case as Defendant claims. Rather, it provides direct evidence of the
existence of the Seabury Conspiracy because it shows that Defendant, as one
would expect of a person involved in a crack distribution conspiracy, had crack
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cocaine in his possession. His conviction for possession is, therefore, direct
evidence of the alleged conspiracy to distribute crack and not Rule 404(b)
evidence. Accordingly, we hold that the district court did not abuse its discretion
by admitting evidence of that conviction.
C. Alleged Prosecutorial Misconduct
In his closing argument, the prosecutor made the following statement: “It’s
your country, it’s your community, it’s your decision. You folks are the ones that
have to make that decision here.” R. Vol. V at 315. Defendant argues that this
statement was an impermissible attempt to inflame the jury and incite societal
alarm, and constituted reversible error. Because Defendant failed to object to the
statement at trial, we review only for plain error. United States v. Lonedog, 929
F.2d 568, 570 (10th Cir. 1991).
After reviewing the statement in context, we agree with the government
that it was intended only to emphasize the jury’s responsibility in deciding the
case. The prosecutor’s inclusion of that statement in his closing argument,
therefore, did not amount to plain error with respect to Defendant’s right to a fair
trial.
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D. Cumulative Effect of Errors on Defendant’s Right to a Fair Trial
We need not engage in a cumulative error analysis as requested by
Defendant. When reviewing a case for cumulative error, only actual errors are
considered in determining whether the defendant’s right to a fair trial was
violated. See United States v. Rivera, 900 F.2d 1462, 1470-71 (10th Cir. 1990)
(en banc). Because we have found no errors, harmless or otherwise, resulting
from the alleged judicial and prosecutorial misconduct and disputed evidentiary
rulings, the cumulative error doctrine does not apply.
E. Sufficiency of the Evidence
Defendant next claims that the evidence was insufficient to support his
conviction. We review the record de novo, “and ask only whether taking the
evidence–both direct and circumstantial, together with the reasonable inferences
to be drawn therefrom–in the light most favorable to the government, a reasonable
jury could find the defendant guilty beyond a reasonable doubt.” United States v.
Hanzlicek, 187 F.3d 1228, 1239 (10th Cir. 1999) (quotation omitted).
In order to prove a conspiracy beyond reasonable doubt, the government
“must show (1) that two or more persons agreed to violate the law, (2) that the
Defendant knew at least the essential objectives of the conspiracy, . . . (3) that the
Defendant knowingly and voluntarily became a part of it, and (4) that the alleged
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co-conspirators were interdependent.” United States v. Ivy, 83 F.3d 1266, 1285
(10th Cir. 1996) (quotations omitted). The defendant must be generally aware of
his co-conspirators, but need not know all of the co-conspirators or all the details
of the conspiracy. United States v. Horn, 946 F.2d 738, 741 (10th Cir. 1991).
Knowing participation in a conspiracy may be presumed when it is shown that the
defendant acted in furtherance of the objective of the conspiracy. United States v.
Brown, 995 F.2d 1493, 1502 (10th Cir. 1993).
The conduct of the co-conspirators must be interdependent in some way for
a conspiracy to be shown. Horn, 946 F.2d at 740. “[I]f the activities of a
defendant charged with conspiracy facilitated the endeavors of other alleged
coconspirators or facilitated the venture as a whole, evidence of interdependence
is present.” Id. at 740-41.
After reviewing the record, we conclude that the evidence, outlined above,
is clearly sufficient to support the verdict as to each element–including
interdependence, the element with respect to which the Defendant directs most of
his argument.
As to the element of interdependence, Defendant argues that the evidence
merely shows that he and Seabury went together to buy drugs. Appellant’s Br. at
28. As indicated above, however, Defendant’s actions made the joint crack
purchases from the Topeka seller possible. Thus, Defendant facilitated Seabury’s
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endeavors and the object of the Seabury conspiracy as a whole to possess and
distribute crack. That is enough to show interdependence between Defendant and
Seabury. See Horn, 946 F.2d at 740-41.
Defendant argues that his only relationship with Jones was that of buyer-
seller and that interdependence does not exist in buyer-seller relationships. See
United States v. Fox, 902 F.2d 1508, 1514 (10th Cir. 1990) (“[p]roof of the
existence of a buyer-seller relationship, without more, is inadequate to tie the
buyer to a larger conspiracy.”) (quotation omitted). However, the buyer-seller
rule does not trump the general rule that interdependence exists where “each co-
conspirator’s activities constituted essential and integral steps toward the
realization of a common, illicit goal.” Id. (quotation omitted). The very purpose
of the buyer-seller rule “is to separate consumers, who do not plan to redistribute
drugs for profit, from street-level, mid-level, and other distributors, who do
intend to redistribute drugs for profit, thereby furthering the objective of the
conspiracy.” Ivy, 83 F.3d at 1285-86.
The buyer-seller rule does not apply here. The evidence establishes that
Jones was not the end user of the crack he bought from Defendant. Jones
purchased the crack for “Beedy-bump” and received a $200 commission from him
for each completed purchase. Jones, therefore, was just another link in the
distribution chain who shared Defendant’s distribution objective. Defendant’s
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procurement and sale of crack to Jones facilitated the Jones’ distribution
endeavors and the distribution objective of the Jones conspiracy as a whole. That
is sufficient to prove interdependence between Defendant and Jones.
Because we conclude that the evidence provided a sufficient basis from
which a reasonable jury could find Defendant guilty beyond a reasonable doubt, it
follows that the district court did not err in denying his motion for acquittal.
F. Sentencing
At sentencing, the district court found that the government had
demonstrated that the substance involved in the conspiracies was crack cocaine.
As a result, the court determined Defendant’s base offense level to be a 36 under
U.S.S.G. §2D1.1(c). The district court also found that Defendant “organized and
led a criminal enterprise.” R. Vol. VI at 24. Accordingly, the court increased
Defendant’s base offense level by four levels pursuant to U.S.S.G. §3B1.1(a).
Defendant contends that the district court erred in both matters because the
evidence did not adequately prove that the substance involved in the conspiracies
was crack or that he was an organizer or leader. We review the district court’s
factual findings for clear error and its overall application of the guidelines de
novo. United States v. Cantley, 130 F.3d 1371, 1378 (10th Cir. 1997).
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1. Crack Cocaine Enhancement
The 100:1 crack cocaine enhancement refers to the fact that under U.S.S.G.
§2D1.1(c)(2), Defendant’s base offense level of 36 for committing an offense
involving .5 to 1.5 kilograms of crack is the same as the base offense level for
committing an offense involving 50 to 150 kilograms of “regular” cocaine.
The evidence offered by the government need only prove the enhancement
factor by a preponderance of the evidence. United States v. Beaulieu, 893 F.2d
1177, 1181 n.7 (10th Cir. 1990). The district court may consider relevant
information not admissible at trial “so long as the information relied upon has
some basis of support in the facts of the particular case and bears sufficient
indicia of reliability.” United States v. Wacker, 72 F.3d 1453, 1477 (10th Cir.
1995) (quotations omitted); see also, U.S.S.G. §2D1.1, comment. (n.12).
At sentencing, the district court noted that even though Seabury and Jones
did not use crack, they were both very familiar with it and both confident that the
substance involved was crack. They stated that it was bought, packaged and sold
as crack. The court also relied on Defendant’s conviction for possession of crack
in June 1997. Lastly, on October 2, 1997, police found 156 grams of crack at
Defendant’s residence. The district court was entitled to take that fact into
consideration even though the evidence was inadmissible at trial. See Wacker, 72
F.3d at 1477. After reviewing the record, we conclude that the court did not err
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in finding that the substance involved in the charged conspiracies was crack
cocaine.
2. Organizer/Leader Enhancement
U.S.S.G. §3B1.1(a) provides that “[i]f the defendant was an organizer or
leader of a criminal activity that involved five or more participants or was
otherwise extensive, increase [the offense level] by 4 levels.” Factors to be
considered in evaluating whether or not Defendant is a leader or organizer
include:
the exercise of decision making authority, the nature of participation
in the commission of the offense, the recruitment of accomplices, the
claimed right to a larger share of the fruits of the crime, the degree of
participation in planning or organizing the offense, the nature and
scope of the illegal activity, and the degree of control and authority
exercised over others.
U.S.S.G. §3B1.1(a) comment. (n.4). The guidelines do not require that all of
these factors be present for the enhancement to apply. United States v. Bernaugh,
969 F.2d 858, 863 (10th Cir. 1992). The government must prove that the
defendant was either a leader or an organizer by a preponderance of the evidence.
See United States v. Torres, 53 F.3d 1129, 1142 (10th Cir. 1995).
An organizer under §3B1.1(a) is someone who is “responsible for
organizing others for the purpose of carrying out the crime.” Bernaugh, 969 F.2d
at 862-63 (quotation omitted). The government does not need to show that
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Defendant exercised control over other participants in order to prove that he was
an organizer. United States v. Valdez-Arieta, 127 F.3d 1267, 1272 (10th Cir.
1997). In order to be classified as a leader under §3B1.1(a), Defendant must have
exercised some control over at least one person involved in a criminal activity
involving five or more people. United States v. Cruz Camacho, 137 F.3d 1220,
1224 (10th Cir. 1998); Bernaugh, 969 F.2d at 862.
The evidence shows that at least Defendant, Seabury, Jones, Lucas, Tamika
Moore, Lakeisha Green, Jermaine Archibald and Louisa Seabury (Seabury’s
mother) were involved in a common criminal activity. Thus, the five or more
persons requirement is met.
Defendant was an organizer of criminal activity. At a minimum, the
evidence shows that Defendant recruited Lucas to hold his drug proceeds and
Jones to purchase crack from him. Defendant also organized drug purchases and
sales. He arranged the joint purchases from the Topeka seller for himself and
Seabury. As Jones’ supplier, he had to arrange for sales to Jones and obtain
adequate inventory. In addition, because the evidence indicates that Defendant
had others selling crack for him, we can presume that he had to supply them with
crack and possibly define territories and set selling prices and commissions.
Defendant can also be deemed a leader in this drug organization because
the evidence supports a finding of control. It is clear that Defendant exercised
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control over Lucas. He directed her to hold money for him and was able to
retrieve it when he wanted. He had to exert some control to ensure that Lucas
would not spend his money. Defendant had to exert some control over the people
who sold his drugs for him, or they could abscond with the proceeds. In addition,
the transcript 4 of Tamika Moore’s grand jury testimony admitted at sentencing
shows that Defendant directed her to hide 156 grams of crack in his Ogden,
Kansas, home. Defendant’s instruction together with Tamika Moore’s compliance
shows that he exerted control over her.
After reviewing the record and the transcript of the sentencing hearing, we
hold that the district court did not err in finding that Defendant was both an
organizer and a leader of a criminal activity involving five or more persons or in
applying the organizer/leader enhancement to Defendant.
4
Defendant objects to the admission of the transcript at sentencing on the
theory that since the search which revealed the cocaine was found to be improper
and the evidence resulting therefrom was suppressed at trial, nothing connected to
that search should be admissible at sentencing. However, we have held that the
exclusionary rule generally does not apply at sentencing so long as there is no
indication that the evidence was illegally obtained for the purpose of increasing a
defendant’s sentence. United States v. Jessup, 966 F.2d 1354, 1356-57 (10th Cir.
1992). Because there was no indication that the search was conducted in order to
increase Defendant’s sentence, the transcript of Tamika Moore’s grand jury
testimony was properly considered by the district court at sentencing.
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III. CONCLUSION
For the reasons stated above, Defendant’s conviction and sentence are
AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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