United States v. Arrington ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
October 15, 2010
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 09-2151
v.
(D.C. No. 2:07-CR-00766-WJ-6)
(D.N.M.)
SAMUEL ZACHARY ARRINGTON,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY, BALDOCK, and HOLMES, Circuit Judges.
__________________________________
Samuel Zachary Arrington appeals from the district court’s denial of his
motion for a judgment of acquittal under Federal Rule of Criminal Procedure 29.
Mr. Arrington contends that the government presented insufficient evidence to
support the jury’s conclusion that he was guilty of (1) conspiracy to commit
murder in aid of racketeering, in violation of the Violent Crimes in Aid of
Racketeering Act (“VICAR”), 18 U.S.C. § 1959(a), and (2) conspiracy to
distribute fifty grams or more of methamphetamine, in violation of the Controlled
*
This order and judgment is not binding precedent, except under the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 Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
Substances Act, 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846. We exercise
jurisdiction under 28 U.S.C. § 1291 and affirm the district court’s denial of the
motion and resulting judgment.
BACKGROUND 1
On December 18, 2004, Otero County Deputy Sheriffs Billy Anders and
Robert Hedman responded to a report of domestic violence and gunfire at a rural
cabin between Mayhill and Cloudcroft, New Mexico. Earl Flippen lived in the
cabin, along with his girlfriend and a three-year-old girl. As the deputies
approached the cabin, they noticed blood on the front porch. The deputies
knocked on the front door. Mr. Flippen and the young girl answered. Mr.
Flippen was agitated and nervous, refused to leave the cabin to speak with the
deputies, and abruptly slammed and locked the door.
Deputy Anders returned to his vehicle to call for backup. While Deputy
Anders spoke to the dispatcher, he heard a gunshot from the vicinity of the cabin.
He unsuccessfully attempted to locate Deputy Hedman by calling out for him.
Deputy Anders noticed the young girl standing outside of the cabin. As Deputy
Anders approached the young girl to inquire into the whereabouts of her father,
Mr. Flippen ambushed him from behind a parked car. During the ensuing gun
1
When reviewing the denial of a motion for a judgment of acquittal,
we consider the evidence in the light most favorable to the government. United
States v. Vigil, 523 F.3d 1258, 1262 (10th Cir. 2008).
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battle, Deputy Anders shot and wounded Mr. Flippen. Deputy Anders radioed
again for backup, handcuffed Mr. Flippen, and removed Mr. Flippen’s firearm
from the immediate area. When Deputy Anders continued his investigation, he
found Deputy Hedman shot dead on the back porch. Deputy Anders returned to
the front of the cabin, instructed the young girl to go inside, and shot and killed
Mr. Flippen. For this transgression, Deputy Anders was convicted of voluntary
manslaughter and incarcerated for one year.
This tragic sequence of events implicated a white-supremacist organization
known as the Aryan Brotherhood. Mr. Flippen had been the leader of the New
Mexico subchapter of the Aryan Brotherhood of Texas. Aryan Brotherhood
members were outraged at what they perceived to be the murder of the
defenseless Mr. Flippen and wanted to exact their revenge on Mr. Anders. 2
In early 2005, the Aryan Brotherhood started to mobilize their membership.
On April 17, 2005, an Aryan Brotherhood leader ordered the murder of Mr.
Anders. In mid-2005, the leader of the New Mexico subchapter attempted to
implement the order, but was arrested when he hired an undercover law
2
Under the Aryan Brotherhood constitution, members must retaliate in
kind for any attack against another member. See R., Vol. III at 1070 (“If a bro
gets killed, whoever committed the murder . . . should be hit, should be taken out
. . . [should be] [k]illed.”); id. at 782 (“[A]n attack on one is an attack on all.”);
id. at 582 (quoting the Aryan Brotherhood constitution as providing that “a
threat/attack . . . against a made or prospective member will be considered a
threat to, or attack on, the family as a whole. Without exception, all members of
the family are required to come together and counter any such threat/attack.”).
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enforcement agent as the “hit man.” In May 2006, Owen Puckett, the new leader
of the New Mexico subchapter, hatched a new plan to murder Mr. Anders. He
solicited the assistance of D.W., a high-ranking member of the New Mexico
subchapter, who also happened to be a federal informant. D.W. introduced
“Pete,” an undercover agent with the U.S. Bureau of Alcohol, Tobacco, Firearms,
and Explosives (“ATF”), as a candidate to carry out the murder of Mr. Anders.
On May 13, 2006, Mr. Puckett, D.W., and Pete held a “church meeting” 3 to
plan the murder. In a wide-ranging conversation, they discussed the plan for
murdering Mr. Anders, along with one of his family members, after Mr. Anders
was released from prison. They also discussed weapons, a getaway car, and a
safe house for Pete. Mr. Puckett subsequently sought concurrence for the murder
plan from the Aryan Brotherhood leadership.
On August 26, 2006, the Aryan Brotherhood held a church meeting in Las
Cruces, New Mexico, to refine the plan for murdering Mr. Anders. Robert Cook
and Mr. Arrington, high-ranking members of the Aryan Brotherhood of Texas,
attended the church meeting. Also in attendance were D.W., Pete, and several
undercover ATF agents posing as prospective members of the Aryan Brotherhood.
At the outset of the church meeting, D.W. mentioned the Flippen incident and
3
“Church meeting is what the Aryan Brotherhood calls their meetings
to . . . discuss criminal activities and their plans to further the Aryan
Brotherhood.” R., Vol. III at 867.
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ominously noted that it soon would bring a lot of heat on the Aryan Brotherhood.
After addressing some general housekeeping matters, D.W. dismissed the
prospective Aryan Brotherhood members, except for Pete, to enable the ranking
members to discuss sensitive material. Mr. Arrington remained in the room for
this sensitive discussion.
Once the prospective members had left the room, D.W. began speaking in
general terms about the existence of a direct order. He also noted that Pete soon
would complete a “blood tie,” Gov’t Ex. 41 at 26:16–26:33, which means “killing
somebody or hurting them very badly.” R., Vol. III at 753. Throughout the
meeting, Mr. Arrington leafed through informational materials regarding Mr.
Anders’s killing of Mr. Flippen. When D.W. repeated the Aryan Brotherhood’s
constitutional tenet that “a threat to one is a threat to all,” Mr. Arrington
emphatically nodded his head in agreement. Gov’t Ex. 41 at 30:03–30:26.
A little more than a month after the Las Cruces church meeting, on
September 29, 2006, D.W. called Mr. Arrington on the telephone. Although Mr.
Arrington was too busy to talk at the time, he returned the telephone call soon
thereafter. During this telephone conversation, Mr. Arrington expressly agreed
with the decision to kill Mr. Anders. Mr. Arrington stated that Mr. Anders
deserved to be killed for meddling with the Aryan Brotherhood, even though he
noted that the proposed time and place of the murder were “a hard one to fall on.”
Gov’t Ex. 43A2 at 3:52–4:01. When D.W. stated that the murder would draw
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unwelcome attention to the Aryan Brotherhood, Mr. Arrington reiterated his
agreement with the decision. Mr. Arrington also readily agreed that Pete could
stay with him after the murder, renewing this offer on two other occasions during
the telephone conversation. Finally, Mr. Arrington agreed to “look into”
procuring some methamphetamine to help finance the murder of Mr. Anders.
Gov’t Ex. 43A2 at 9:34–9:55.
On October 1, 2006, Mr. Arrington contacted D.W. and told him that he
could obtain three pounds of methamphetamine at a price of $15,000 per pound.
When D.W. expressed surprise at this price, Mr. Arrington offered to negotiate it
down to $8,000 or $10,000 per pound. Mr. Arrington also stated that his drug
supplier wanted to sell one pound at a time. D.W. suggested that he would not
pay more than $10,000 per pound. Mr. Arrington promised to try to reduce the
price and stated that he would call D.W. again.
On October 1 and 2, 2006, D.W. and Mr. Arrington had several more
telephone conversations regarding the proposed drug transaction. Within an hour
after the initial conversation, Mr. Arrington called D.W. and told him that he had
negotiated the price down to $12,500 per pound. Mr. Arrington also reiterated
that his drug supplier would deliver the methamphetamine in one-pound
increments over a three-month period. When D.W. stated that he would think
about it, Mr. Arrington offered to try to lower the price further. A few minutes
later, Mr. Arrington called to announce that he had negotiated the price down to
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$10,000 per pound. Mr. Arrington also offered to have the drug supplier “squat
on,” or reserve, the drugs for D.W. Apparently explaining why the drug supplier
would be willing to make such an accommodation, Mr. Arrington noted that the
supplier was “a brother.” Gov’t Ex. 44A3 at 00:08–00:11. In a final telephone
conversation, D.W. asked Mr. Arrington for a few days to acquire the money to
purchase the methamphetamine. Mr. Arrington replied that the drugs would be
available whenever he was ready to purchase them. D.W. never consummated the
drug transaction.
On March 18, 2008, Mr. Arrington and eleven codefendants were indicted
in a nine-count second superseding indictment in the U.S. District Court for the
District of New Mexico. Count 1 of the indictment charged Mr. Arrington with
conspiring to commit a violent crime in aid of racketeering—viz., conspiring to
murder former Otero County Deputy Sheriff Billy Anders, in violation of
18 U.S.C. § 1959(a)(5). Count 8 of the indictment charged Mr. Arrington with
conspiring to distribute fifty grams or more of methamphetamine, in violation of
21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846. Mr. Arrington and two codefendants
were tried before a jury. On October 7, 2008, the jury found Mr. Arrington guilty
on both counts. 4
4
The jury found one of Mr. Arrington’s codefendants, Robert Cook,
guilty of the charges that were lodged against him in the Second Superseding
Indictment. We previously affirmed the district court’s judgment sustaining that
(continued...)
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The district court denied Mr. Arrington’s written motion for judgment of
acquittal, pursuant to Federal Rule of Criminal Procedure 29(a), on both counts in
a memorandum opinion and order dated February 11, 2009. On June 5, 2009, the
district court entered a judgment sentencing Mr. Arrington to concurrent terms of
(1) 120 months of imprisonment and three years of supervised release on the
murder-conspiracy count; and (2) 132 months of imprisonment and four years of
supervised release on the drug-conspiracy count. Mr. Arrington timely appeals.
DISCUSSION
On appeal, Mr. Arrington challenges the sufficiency of the evidence
underlying his convictions. He argues that the evidence adduced at trial was
insufficient to sustain the jury’s verdict on the (1) conspiracy to commit murder
in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5); and (2) conspiracy
to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B),
and 846.
“We review the sufficiency of the evidence to support a jury’s verdict and
the denial of [a] motion for judgment of acquittal de novo.” Vigil, 523 F.3d
at 1262. In conducting this review, “[w]e ask whether a reasonable jury could
4
(...continued)
verdict in a separate order and judgment. See United States v. Cook, No. 09-
2152, 2010 WL 2473859, at * 1 (10th Cir. June 18, 2010). The jury could not
reach a verdict concerning the other codefendant.
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find a defendant guilty beyond a reasonable doubt, viewing the evidence in the
light most favorable to the government and drawing reasonable inferences
therefrom.” Id.; accord United States v. Hamilton, 413 F.3d 1138, 1143 (10th
Cir. 2005). We neither “weigh conflicting evidence nor consider the credibility
of witnesses.” United States v. Delgado-Uribe, 363 F.3d 1077, 1081 (10th Cir.
2004). We “simply determine whether [the] evidence, if believed, would
establish each element of the crime.” United States v. Vallo, 238 F.3d 1242, 1248
(10th Cir. 2001) (quoting United States v. Evans, 42 F.3d 586, 589 (10th Cir.
1994)) (internal quotation marks omitted). “[R]eversal is only appropriate if no
rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.” United States v. Burkley, 513 F.3d 1183, 1190 (10th Cir.)
(quoting United States v. Austin, 231 F.3d 1278, 1283 (10th Cir. 2000)) (internal
quotation marks omitted), cert. denied, 128 S. Ct. 2979 (2008).
I. Conspiracy to Commit Murder in Aid of Racketeering
Mr. Arrington contends that the district court erred in denying his motion
for judgment of acquittal on the murder-conspiracy count. In particular, Mr.
Arrington claims that the evidence was insufficient to prove beyond a reasonable
doubt that he agreed to join the conspiracy to murder Mr. Anders.
“VICAR was enacted by Congress in 1984 as a violent crime corollary to
the RICO statute.” United States v. Jones, 566 F.3d 353, 361 (3d Cir.),
cert. denied, 130 S. Ct. 528 (2009). “Congress enacted VICAR to complement
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RICO” and intended for VICAR “to be liberally construed to effectuate its
remedial purposes.” United States v. Banks, 514 F.3d 959, 967 (9th Cir. 2008)
(quoting United States v. Concepcion, 983 F.2d 369, 381 (2d Cir. 1992)) (internal
quotation marks omitted); accord United States v. Dhinsa, 243 F.3d 635, 671 (2d
Cir. 2001). In pertinent part, VICAR provides as follows:
(a) Whoever, as consideration for the receipt of, or as
consideration for a promise or agreement to pay, anything of
pecuniary value from an enterprise engaged in racketeering
activity, or for the purpose of gaining entrance to or maintaining
or increasing position in an enterprise engaged in racketeering
activity, murders, kidnaps, maims, assaults with a dangerous
weapon, commits assault resulting in serious bodily injury upon,
or threatens to commit a crime of violence against any individual
in violation of the laws of any State or the United States, or
attempts or conspires so to do, shall be punished—
(5) for attempting or conspiring to commit
murder . . ., by imprisonment for not more than ten years or
a fine under this title, or both . . . .
18 U.S.C. § 1959(a)(5).
To prove a conspiracy to murder in aid of racketeering in violation of
18 U.S.C. § 1959(a)(5), the government had to establish beyond a reasonable
doubt that (1) the Aryan Brotherhood was an “enterprise” under 18 U.S.C.
§ 1959(b)(2); (2) the Aryan Brotherhood was engaged in “racketeering activity”
under 18 U.S.C. § 1961(1); (3) Mr. Arrington was a member of the Aryan
Brotherhood; (4) Mr. Arrington conspired to murder Mr. Anders; and (5) Mr.
Arrington’s general purpose in doing so was “as consideration for the receipt of,
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or as consideration for a promise or agreement to pay, anything of pecuniary
value from an enterprise engaged in racketeering activity, or for the purpose of
gaining entrance to or maintaining or increasing [his] position in an enterprise
engaged in racketeering activity.” Id.; see United States v. Smith, 413 F.3d 1253,
1277 (10th Cir. 2005), abrogated on other grounds by United States v.
Hutchinson, 573 F.3d 1011 (10th Cir. 2009).
Mr. Arrington challenges only the fourth element—viz., whether he was a
member of the conspiracy to murder Mr. Anders. Under 18 U.S.C. § 1959(a), the
government must satisfy each element of the predicate offense under state or
federal law. See 18 U.S.C. § 1959(a) (prohibiting certain acts as well as the
“attempt[] or conspir[acy]” to commit acts that are “in violation of the laws of
any State or the United States” (emphasis added)); United States v. Marino, 277
F.3d 11, 30 (1st Cir. 2002) (“[F]or a crime to be chargeable under state law, it
must at least exist under state law.”); see also United States v. Pimental, 346
F.3d 285, 302 (2d Cir. 2003) (“[VICAR] and RICO seem to require of a
predicate act based on state law that the act include the essential elements of the
state crime.” (quoting United States v. Carillo, 229 F.3d 177, 186 (2d Cir. 2000))
(internal quotation marks omitted)). Although we have not previously addressed
the need to establish the elements of the predicate offense under VICAR, we
have indicated that “‘predicate acts[]’ must be violations of certain statutes,”
such as a state statute, under the analogous RICO statute. Hall v. Witteman, 584
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F.3d 859, 867 (10th Cir. 2009); see 18 U.S.C. § 1961(1) (defining prohibited
racketeering activity only as those acts prohibited by enumerated federal statutes
or “any act or threat involving murder . . . which is chargeable under State law”
(emphasis added)).
As the predicate offense for this particular prosecution, the government
claims that Mr. Arrington conspired to murder Mr. Anders in violation of New
Mexico Statutes Annotated §§ 30-2-1 (conspiracy) and 30-28-2 (willful and
deliberate murder). 5 To prove that Mr. Arrington conspired to kill Mr. Anders
under New Mexico law, the government must establish beyond a reasonable
doubt that (1) Mr. Arrington and another person by words or acts agreed together
to commit the willful and deliberate murder of Mr. Anders; (2) Mr. Arrington
and the other person intended to commit the willful and deliberate murder of Mr.
Anders; and (3) this happened in New Mexico and elsewhere beginning on or
about April 17, 2005, and continued through March 18, 2008. See N.M. Stat.
Ann. §§ 30-2-1(A)(1), 30-28-2(A); State v. Apodaca, 887 P.2d 756, 763 (N.M.
1994); N.M. Unif. Jury Instruction Criminal 14-2810. The elements of willful
5
Courts have not definitively determined whether state or federal law
applies to “conspiracies” under 18 U.S.C. § 1959(a). Compare, e.g., United
States v. Desena, 287 F.3d 170, 177 n.1 (2d Cir. 2002) (noting that it “is unclear
whether § 1959 imports state law of attempt and conspiracy or whether federal
law governs”), with Carrillo, 229 F.3d at 186 (noting that the “attempt[] or
conspiracy” must be “in violation of state or federal law”). We need not address
this issue, however, because neither party objected to the application of New
Mexico law before the district court or on appeal.
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and deliberate murder are (1) the defendant killed the victim; (2) the killing was
with the deliberate intention to take away the life of the victim; and (3) the
killing happened in New Mexico or elsewhere on or about the alleged dates. See
§ 30-2-1(A)(1); Apodaca, 887 P.2d at 761; N.M. Unif. Jury Instruction Criminal
14-201.
In this appeal, the district court did not err in denying the motion because
the government proffered substantial evidence at trial from which a jury could
find beyond a reasonable doubt that Mr. Arrington had agreed to conspire with
other members of the Aryan Brotherhood, including Cook, to murder Mr. Anders.
On August 26, 2006, Mr. Arrington attended the Las Cruces church meeting at
which the Aryan Brotherhood discussed the planned murder. At the outset of the
church meeting, D.W. mentioned the Flippen incident and ominously noted that
it soon would bring a lot of heat on the Aryan Brotherhood. Mr. Arrington also
received and perused informational materials regarding Mr. Anders’s killing of
Mr. Flippen. With this knowledge, Mr. Arrington emphatically nodded his head
in agreement when D.W. repeated the Aryan Brotherhood’s constitutional tenet
that “a threat to one is a threat to all,” which means that a member must retaliate
in kind for any attack on another member.
On September 29, 2006, Mr. Arrington confirmed his agreement with the
murder conspiracy discussed at the church meeting during a telephone
conversation with D.W. Mr. Arrington repeatedly asserted that Mr. Anders
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deserved to be killed, even though the murder would draw unwelcome attention
to the Aryan Brotherhood and he was uncertain about the logistics of the
operation. Mr. Arrington also readily agreed to harbor the purported hit man
after the murder. Finally, Mr. Arrington agreed to procure methamphetamine to
help finance the murder of Mr. Anders.
Although Mr. Arrington concedes the existence of a conspiracy to murder
Mr. Anders, he claims that he never actually agreed to join the conspiracy. Mr.
Arrington asserts that he was merely present at a meeting where the government
informant, the undercover agent, and Mr. Cook discussed the planned murder.
He also claims that he never made any statement during the meeting in support of
the conspiracy and never engaged in any conduct to further the conspiracy,
noting that his sympathy for or approval of the conspiracy was not enough to
constitute an agreement. Although Mr. Arrington never spoke at the meeting, the
record demonstrates that he nodded his head in agreement when D.W. stated that
“a threat to one is a threat to all.” This non-verbal assent followed his receipt of
information describing Mr. Anders’s killing of Mr. Flippen—viz., after he
obtained information concerning Mr. Anders’s fatal attack on a fellow member of
the Aryan Brotherhood. Furthermore, during a series of telephone conversations,
Mr. Arrington also made express oral statements in which he agreed with the
conspiracy; agreed to take the facilitative action of harboring Pete after the
murder; and agreed to procure methamphetamine to help finance the murder
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conspiracy. Mr. Arrington subsequently engaged in conduct in furtherance of the
conspiracy when he negotiated the purchase and delivery of the
methamphetamine.
Thus, based on this evidence, a jury reasonably could find Mr. Arrington
guilty beyond a reasonable doubt of conspiring to murder Mr. Anders.
II. Conspiracy to Distribute Methamphetamine
Mr. Arrington also contends that the district court erred in denying his
motion for judgment of acquittal on the drug-conspiracy count. In particular,
Mr. Arrington claims that the evidence was insufficient to prove beyond a
reasonable doubt that he agreed to join the conspiracy to distribute
methamphetamine.
To prove a conspiracy in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B),
and 846, the government must establish beyond a reasonable doubt that (1) Mr.
Arrington agreed with one or more persons to distribute fifty grams or more of
methamphetamine; (2) Mr. Arrington knew at least the essential objectives of the
conspiracy; (3) Mr. Arrington knowingly and voluntarily took part in the
conspiracy; and (4) the conspirators were interdependent. See United States v.
Hernandez, 509 F.3d 1290, 1295 (10th Cir. 2007).
Mr. Arrington challenges only the first element—viz., whether he agreed
with one or more persons to distribute fifty grams or more of methamphetamine.
“[A] jury can infer an agreement constituting a conspiracy from the acts of the
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parties and other circumstantial evidence indicating concert of action for the
accomplishment of a common purpose.” United States v. Scull, 321 F.3d 1270,
1282 (10th Cir. 2003) (quoting United States v. Carter, 130 F.3d 1432, 1439
(10th Cir. 1997)) (internal quotation marks omitted). “[A] defendant need not
have knowledge of all the details or all the members of the conspiracy . . . .”
United States v. Small, 423 F.3d 1164, 1182 (10th Cir. 2005) (quoting United
States v. Mendoza-Salgado, 964 F.2d 993, 1005 (10th Cir. 1992)) (internal
quotation marks omitted).
“[T]he connection of the defendant to the conspiracy need only be slight,
if there is sufficient evidence to establish that connection beyond a reasonable
doubt.” United States v. Hamilton, 587 F.3d 1199, 1207 (10th Cir. 2009)
(quoting United States v. Tranakos, 911 F.2d 1422, 1430 (10th Cir. 1990))
(internal quotation marks omitted) (“Even a single overt act by the defendant can
be sufficient to connect him to the conspiracy if that act leads to a reasonable
inference of intent to participate in an unlawful agreement or criminal
enterprise.” (quoting United States v. Pack, 773 F.2d 261, 266 (10th Cir. 1985))
(internal quotation marks omitted)), cert. denied, 130 S. Ct. 3443 (2010).
However, a court “cannot sustain a conspiracy conviction if the evidence does no
more than create a suspicion of guilt or amounts to a conviction resulting from
piling inference on top of inference.” Hernandez, 509 F.3d at 1295 (quoting
United States v. Horn, 946 F.2d 738, 741 (10th Cir. 1991)) (internal quotation
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marks omitted). “[T]he inference of an agreement must be more than mere
speculation or conjecture.” Delgado-Uribe, 363 F.3d at 1083. “A defendant’s
activities are interdependent if they facilitated the endeavors of other alleged
conspirators or facilitated the venture as a whole.” United States v. Ivy, 83 F.3d
1266, 1286 (10th Cir. 1996) (quoting Horn, 946 F.2d at 740–41) (internal
quotation marks omitted).
In this appeal, the government offered substantial evidence at trial from
which a jury could find beyond a reasonable doubt that Mr. Arrington conspired
with his supplier to distribute more than fifty grams of methamphetamine. On
September 29, 2006, D.W. asked for Mr. Arrington’s assistance in obtaining
methamphetamine. Mr. Arrington subsequently called D.W. and told him that he
could procure three pounds of methamphetamine (i.e., approximately 1360
grams) at $15,000 per pound. Mr. Arrington continued to negotiate with his
supplier, frequently calling D.W. to update him on changes to the price and the
terms of delivery. After much wrangling, Mr. Arrington negotiated a price of
$10,000 per pound to be delivered one pound at a time in three monthly
installments. When D.W. asked for a few days to gather the funds necessary for
the transaction, Mr. Arrington replied that the drugs would be available
whenever he was ready to purchase them.
Mr. Arrington makes several unavailing arguments in an attempt to claim
that he never agreed to join the drug conspiracy. First, Mr. Arrington argues that
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he was merely present during the telephone conversation with D.W. “[T]he fact
of defendant’s presence at the crime scene is material and probative, but mere
presence is not sufficient in and of itself.” Id. at 1285 (quoting United States v.
Nicholson, 983 F.2d 983, 989 (10th Cir. 1993)) (internal quotation marks
omitted). Although D.W. appears to have initiated the discussion about the
proposed drug transaction in a telephone conversation, the record reveals that
Mr. Arrington called D.W. on several occasions to update him on the status of
the negotiations with his drug supplier.
Second, Mr. Arrington claims that during the telephone conversation he
never made any statement or engaged in any conduct to further the drug
conspiracy. As discussed supra, after the initial telephone conversation, Mr.
Arrington contacted his drug supplier, haggled over the price and other details of
the transaction, and frequently updated D.W. on the status of the transaction.
Through his own extensive contributions, Mr. Arrington brought the drug
transaction to the brink of consummation; the supplier had the drugs and was
ready to sell them.
Third, Mr. Arrington argues that any telephonic statements to D.W. in
furtherance of the proposed drug deal were insufficient to join the conspiracy
because D.W. was a governmental agent. Although “there can be no indictable
conspiracy involving only the defendant and government agents or informers,”
United States v. Barboa, 777 F.2d 1420, 1422 (10th Cir. 1985); accord United
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States v. Reyes, 979 F.2d 1406, 1408 n.4 (10th Cir. 1992), the indictment charged
Mr. Arrington with conspiring “with other persons whose names are known and
unknown to the grand jury” rather than with D.W. R., Vol. I at 46. “[A]
conspiracy conviction will stand if there is sufficient evidence from which the
jury could have concluded that an unknown or unnamed coconspirator existed
and that defendant and the unknown or unnamed coconspirator agreed to violate
the drug laws.” United States v. Howard, 966 F.2d 1362, 1364 (10th Cir. 1992);
accord United States v. Nichols, 374 F.3d 959, 969 (10th Cir. 2004).
In this case, the record indicates that Mr. Arrington engaged in multiple
conversations with an unnamed drug supplier. These conversations covered the
price, quantity, and delivery of methamphetamine for distribution. Nothing in
the record indicates that Mr. Arrington’s drug supplier was a governmental
agent. Indeed, there is significant record evidence that affirmatively speaks to
the contrary. In apparently offering an explanation for why his supplier would
be willing to “squat” on the drugs for D.W., Mr. Arrington described him as “a
brother.” A reasonable jury could infer that Mr. Arrington intended for this
description to convey to D.W. that his supplier was a member of the Aryan
Brotherhood. Notably, Mr. Arrington does not even suggest here, much less
argue, that his supplier was a governmental agent. Accordingly, the evidence
was sufficient for a jury to determine, beyond a reasonable doubt, that an
unknown, non-governmental coconspirator existed and that this conspirator and
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Mr. Arrington agreed to violate the law by distributing methamphetamine to
D.W.
Finally, Mr. Arrington argues that the evidence against him is too
ambiguous to constitute an agreement because he never directly answered D.W.’s
requests for drugs. As stated supra, however, the record contains ample,
unambiguous evidence that Mr. Arrington agreed to procure methamphetamine
for distribution and took several actions to further that goal.
Thus, based on this evidence, a jury reasonably could find Mr. Arrington
guilty beyond a reasonable doubt of conspiring to distribute fifty grams or more
of methamphetamine.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s order denying
Mr. Arrington’s motion for acquittal and its resulting judgment.
ENTERED FOR THE COURT
Jerome A. Holmes
Circuit Judge
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