United States v. Alston Campbell, Jr. ( 2021 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 19-1127, 19-1491, 19-1523, 19-1897
___________________________
United States of America
Plaintiff - Appellee
v.
Alston Campbell, Jr., Alston Campbell, Sr., Willie Carter, and William Marcellus
Campbell
Defendants - Appellants
____________
Appeal from United States District Court
for the Northern District of Iowa - Waterloo
____________
Submitted: September 24, 2020
Filed: January 21, 2021
____________
Before LOKEN, SHEPHERD, and ERICKSON, Circuit Judges.
____________
SHEPHERD, Circuit Judge.
After a multi-year investigation featuring confidential informants, controlled
buys, wiretaps, and surveillance, a grand jury indicted William Marcellus Campbell
(William), Alston Campbell, Jr. (Junior), Willie Junior Carter (Carter), Alston
Campbell, Sr. (Senior), “A.M.”, “J.P.”, and “D.S.” on various drug trafficking
charges. The government moved to sever J.P.’s and Carter’s trials for a separate
joint trial to precede that of the remaining co-defendants, and the district court
granted that motion. The grand jury then returned a superseding indictment. A.M.,
J.P., and D.S. entered guilty pleas, and a jury convicted the four remaining
defendants (William, Junior, Carter, and Senior). William, Junior, Carter, and
Senior now appeal. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. 1
I.
In 2016, a task force began investigating illegal drug trafficking activities
within Eastern Iowa. Specifically, the task force began investigating the Campbell
family organization after confidential sources provided information that the
organization was trafficking narcotics throughout the Waterloo, Iowa area. The
Assistant United States Attorney (AUSA) for the Northern District of Iowa
submitted a wiretap application for the surveillance of target cell phones belonging
to William. The wiretap application was supported by an affidavit containing sworn
testimony from an investigator with the City of Cedar Rapids Drug Enforcement
Task Force, Officer Bryan Furman. Officer Furman stated that the wiretap would
intercept communications between William, Junior, Senior, A.M., J.P., and “others
yet unknown.” R. Doc. 127-1, at 18. Officer Furman identified William as a “retail
level” crack cocaine distributor within a distribution operation led by Junior. R.
Doc. 127-1, at 26. Officer Furman testified that intercepted communications from
the target cell phones would likely identify the leadership of the distribution network
and the location(s) of narcotics and provide evidence concerning the target offenses;
drug supply; transporters; financiers; manufacturers; distributors; and customers. In
his affidavit, Officer Furman further testified that because the affidavit served the
“limited purpose of securing authorization for the interception of wire and electronic
communications,” he included only those facts that he believed were “necessary to
establish the foundation for an order authorizing” that interception. R. Doc. 127-1,
at 21-22. Officer Furman also testified that “[n]ormal investigative procedures have
1
The Honorable Linda R. Reade, United States District Court for the Northern
District of Iowa, adopting in part the reports and recommendations of the Honorable
C.J. Williams, United States Magistrate Judge for the Northern District of Iowa.
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been tried and have failed, appear unlikely to succeed if tried, or are too dangerous
to employ.” R. Doc. 127-1, at 19.
In the wiretap application, Officer Furman testified that investigators had
previously engaged two members of the organization as cooperators, and those
cooperators participated in controlled narcotics purchases. However, these
cooperators continued participating in uncontrolled criminal activity, and
investigators quit engaging with them to protect the investigation’s secrecy. In
addition to relying on cooperators, investigators had employed surveillance, cell site
location tracing, pen registers, trash searches, and search warrants. Although these
investigative techniques provided some helpful information—revealing the identity
of retail-level distributors and the patterns of individuals’ movements and resulting
in the seizure of small amounts of narcotics—investigators were still unable to
uncover information such as supply sources, organizational hierarchy, and major
inventory locations. In the application, Officer Furman also discussed investigative
techniques that the task force had not employed but that would likely prove
unfruitful or too dangerous: financial investigations using subpoenas and search
warrants; undercover agents; field interviews; or grand-jury subpoenas of persons
associated with the organization. The district court issued a wiretap order
authorizing surveillance of the cell phones on October 24, 2016.
On July 10, 2017, a grand jury indicted William, Junior, Carter, Senior, A.M.,
J.P., and D.S. on various drug-trafficking charges. William and Junior each filed a
motion to suppress the government’s wiretap evidence. In their motions, William
and Junior both argued that the government, in its Title III application, did not
provide the magistrate judge with a “full and complete” statement of facts. R. Doc.
117, at 2; R. Doc. 115, at 2. Instead, they argued, Officer Furman provided only
those facts that he found pertinent to the district court’s evaluation of necessity rather
than allowing the court to make an independent finding of necessity from all
available facts. Junior separately argued that the government failed to properly
minimize intercepted communications.
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On January 22, 2018, the magistrate judge issued a report and
recommendation, recommending that the district court deny Junior’s and William’s
motions to suppress as to the issue of necessity. Junior then filed a supplemental
brief addressing alleged minimization violations, which the government opposed.
On January 30, 2018, the magistrate judge issued a second report and
recommendation, recommending that the district court deny Junior’s motion
asserting minimization violations. The district court adopted the magistrate judge’s
report and recommendations in part.2
On February 22, 2018, a grand jury issued a superseding indictment. This
indictment included fourteen total counts, but only six of those counts charged
Appellants. In Count 1, the grand jury charged all defendants with conspiracy to
distribute cocaine and cocaine base. In Counts 3 and 4, the grand jury charged Senior
(Count 3) and William (Count 4) each with distribution of cocaine base. In Count
12, it charged William with distribution of cocaine. In Count 13, the grand jury
charged Carter with possession with intent to distribute cocaine base. Finally, in
Count 14, the grand jury charged Junior with possession with intent to distribute
cocaine. Ultimately, a jury convicted: Junior of Counts 1 and 14; Senior of Counts
1 and 3; William of Counts 1, 4, and 12; and Carter of Counts 1 and 13.
II.
A. William’s Appeal
A jury convicted William of conspiracy to distribute cocaine and cocaine base
(Count 1), distribution of cocaine base (Count 4), and distribution of cocaine (Count
2
In his first report and recommendation, the magistrate judge opined that, even
if the application did not establish necessity, the Leon good-faith exception, United
States v. Leon, 468 U.S. 897 (1984), would save the fruits of the Title III order from
suppression. However, because the district court was “satisfied” that the necessity
requirement had been met, the court did not decide whether Leon would apply and
therefore did not adopt that portion of the magistrate judge’s report and
recommendation.
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12). On appeal, William alleges that the district court erred by: (1) denying his
motion to suppress the wiretap evidence; (2) limiting cross-examination; (3) denying
his request for a multiple conspiracies jury instruction; and (4) applying witness
intimidation and aggravated role enhancements.
1.
William first argues that the district court erred by denying his motion to
suppress the wiretap evidence. “We review the denial of a motion to suppress de
novo but review underlying factual determinations for clear error, giving due weight
to the inferences of the district court and law enforcement officials.” United States
v. Milliner, 765 F.3d 836, 839 (8th Cir. 2014) (quoting United States v. Thompson,
690 F.3d 977, 984 (8th Cir. 2012)).
“Title III of the Omnibus Crime Control and Safe Streets Act of 1968
[(codified as amended at 18 U.S.C. §§ 2510-23) (Title III)] prescribes the procedure
for securing judicial authority to intercept wire communications in the investigation
of specified serious offenses.” United States v. Giordano, 416 U.S. 505, 507 (1974).
Each wiretap application must include a “full and complete statement of the facts
and circumstances relied upon by the applicant, to justify his belief that an order
should be issued . . . .” 18 U.S.C. § 2518(1)(b). Similarly, applicants must include
“a full and complete statement as to whether or not other investigative procedures
have been tried and failed or why they reasonably appear to be unlikely to succeed
if tried or to be too dangerous.” Id. § 2518(1)(c). Before authorizing a wiretap, a
judge must determine, based on the facts submitted by the applicant, that a wiretap
is necessary. Id. § 2518(3). Suppression of wiretap evidence is appropriate where
any one of Title III’s statutory requirements is unsatisfied. Giordano, 416 U.S. at
527.
Here, William argues that the government failed to establish necessity. He
maintains that investigators chose to target his phones—rather than those of other
retail-level dealers in the organization—because of his familial relationship with
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Senior and Junior, and by not disclosing this motivation to the district court, Officer
Furman did not provide the district court with a “full and complete statement of the
facts and circumstances.” 18 U.S.C. § 2518(1)(c). Further, William asserts that by
omitting this information, Officer Furman evaluated necessity using the facts that he
found pertinent (rather than providing the district court with all available facts),
improperly stripping the court of its fact-finding function. We disagree.
A district court’s finding of necessity is a finding of fact, which we review for
clear error. United States v. Jackson, 345 F.3d 638, 644 (8th Cir. 2003). As a
reviewing court, we must “accord broad discretion” to the district court’s
authorization of a wiretap. United States v. Garcia, 785 F.2d 214, 221-22 (8th Cir.
1986). Wiretaps should be authorized only when necessary, but in drafting an
affidavit in support of a wiretap application, investigators “need not explain away
all possible alternative techniques.” Id. at 223. “If law enforcement officers are able
to establish that conventional investigatory techniques have not been successful in
exposing the full extent of the conspiracy and the identity of each coconspirator, the
necessity requirement is satisfied.” United States v. Turner, 781 F.3d 374, 382 (8th
Cir. 2015) (citation omitted).
Here, Officer Furman’s affidavit was exhaustive. He detailed each technique
that investigators had tried and explained why those techniques had failed to achieve
the investigation’s goals. Similarly, he discussed outstanding investigative methods
and explained why those methods either would be unhelpful or inordinately
dangerous. Officer Furman’s failure to expressly state that the application was
motivated, in part, by William’s familial relationship with Senior and Junior does
not invalidate the district court’s finding of necessity. Further, any potential
advantage to be garnered from William’s familial relationships was apparent from
the extensive facts Officer Furman offered. Finally, Officer Furman dedicated much
of his affidavit to explaining why “conventional investigatory techniques” had not
been successful, and why other, unattempted techniques would not be successful, in
exposing the full extent of the conspiracy. Id. We find that the district court did not
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clearly err in finding that the wiretaps were necessary and ultimately did not err in
denying William’s motion to suppress the wiretap evidence.3
2.
William next claims that the district court erred by limiting his cross-
examination of the government’s cooperating witnesses at trial. When reviewing a
district court’s limitations on cross-examination, we apply an abuse of discretion
standard; we will reverse only if a clear abuse of discretion occurred and if that error
prejudiced the defendant. United States v. Wright, 866 F.3d 899, 905 (8th Cir.
2017). “If the record establishes a violation of the rights secured by the
Confrontation Clause of the Sixth Amendment, we must determine whether the error
was harmless in the context of the trial as a whole.” Id. (citation omitted).
The Sixth Amendment’s Confrontation Clause affords criminal defendants
the right to be “confronted with the witnesses against him.” U.S. Const. amend. VI.
At the heart of the Clause is a defendant’s opportunity to cross-examine. Delaware
v. Van Arsdall, 475 U.S. 673, 678 (1986); see also United States v. Wright, 866 F.3d
899, 906 (8th Cir. 2017) (“The primary purpose of this right is to guarantee the
opportunity for effective cross-examination, particularly with respect to a witness’s
potential bias.” (citation omitted)). Yet, this right is not without limit. “[T]rial
judges retain wide latitude insofar as the Confrontation Clause is concerned to
impose reasonable limits on such cross-examination based on concerns about,
among other things, harassment, prejudice, confusion of the issues, the witness’
safety, or interrogation that is repetitive or only marginally relevant.” Van Arsdall,
475 U.S. at 679. “A limitation on cross-examination does not violate the Sixth
Amendment unless the defendant shows that a reasonable jury might have received
a significantly different impression of the witness’s credibility had defense counsel
3
Because we find that the necessity requirement was met, we need not reach
the government’s argument that the Leon good faith exception applies.
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been permitted to pursue his proposed line of cross-examination.” United States v.
Dunn, 723 F.3d 919, 934 (8th Cir. 2013) (citation omitted).
Here, the district court allowed defense counsel to cross-examine the
government’s cooperating witnesses about looming mandatory minimum or
“substantial” sentences they faced, the possibility of receiving an increased sentence
based on prior criminal history, and their hopes of earning a reduced sentence
through their cooperation. However, the court did not allow cross-examination that
would reveal the precise amount of incarceration, in years, that any witness was
facing.
Although this Court has recognized the sanctity of a defendant’s ability to
expose witness bias, see, e.g., United States v. Walley, 567 F.3d 354, 358 (8th Cir.
2009), here William has not shown that the district court abused its discretion. Our
analysis in Walley is instructive. Id. at 358-60. There, we found no error where the
district court prevented defense counsel from asking about the witness’s potential
five-year minimum sentence but instead allowed questioning about the witness’s
potential “significant sentence.” Id. Important to our analysis was the fact that while
the cooperating witness hoped for a reduction in his sentence, the government had
not yet granted him leniency in exchange for his cooperation. Id. Because this
leniency had not yet been granted, the degree of leniency—and, more significantly,
the consideration granted to the witness for his cooperation—was unascertainable at
the time of cross-examination.
William cites cases like United States v. Caldwell, 88 F.3d 522 (8th Cir.
1996)—and Junior, as discussed below, cites United States v. Roan Eagle, 867 F.2d
436 (8th Cir. 1989)—in which we found that a district court’s limitation on cross-
examination was an abuse of discretion. However, in Caldwell and Roan Eagle, we
found that the district court had erred by forbidding cross-examination concerning
potential minimum and maximum sentences because the government had already
extended leniency to the cooperating witnesses. “Our decisions in Roan Eagle and
Caldwell, therefore, emphasized that the accused should have been able to contrast
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the original punishment faced by the witness with the more lenient punishment
contemplated by the plea agreement—not merely that the original punishment alone
was evidence of bias.” Walley, 567 F.3d at 360. Roan Eagle and Caldwell are
distinguishable from cases like Walley—and from William’s case. Stated simply,
where a cooperating witness simply hopes that his cooperation will manifest into
some undefined degree of leniency, a district court does not abuse its discretion by
limiting cross-examination to generalized phraseology like “significant sentence.”
Walley, 567 F.3d at 358-60.
At trial, the government revealed that it had cooperating witnesses and that
four of those witnesses had plea agreements. William has provided “no offer of
proof that [the witnesses] expected that a particular benefit would flow from [their]
cooperation.” Id. at 360. Instead, the record shows only that the witnesses “hoped
through [their] assistance to reduce by an undefined degree the sentence that [they]
otherwise faced.” Id. Therefore, because William’s requested line of questioning
would have shown only that the cooperating witnesses hoped to reduce their
sentences by an undefined degree through their cooperation, the district court did not
abuse its discretion in limiting cross-examination to, among other things, the
potential “substantial sentences” they faced. Because we find no error, we do not
reach the prejudice inquiry.
William also contends that the district court erred by prohibiting his
introduction of the government witnesses’ plea agreements. However, whether to
admit a cooperator’s written plea agreement into evidence is “an issue committed to
the district court’s discretion.” United States v. Morris, 327 F.3d 760, 762 (8th Cir.
2003). Here, as in Morris, the jury was aware of the plea agreements’ existence, that
the witnesses faced “substantial sentences,” and that those witnesses hoped to
receive a reduction in those sentences through their cooperation. Therefore, the
district court did not abuse its discretion in limiting William’s cross-examination of
the government’s cooperating witnesses.
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3.
Prior to trial, William, Junior, and Senior jointly requested that the district
court give a multiple conspiracies jury instruction. The district court, finding that
such instruction was not supported by the evidence, denied their request. Post-
conviction, William moved for a new trial and argued that the evidence supported a
multiple conspiracies instruction because it revealed a second, separate conspiracy
between Junior and N.S.
“A defendant is entitled to an instruction explaining his defense theory if the
request is timely, the proffered instruction is supported by the evidence, and the
instruction correctly states the law.” United States v. Faulkner, 636 F.3d 1009, 1020
(8th Cir. 2011) (citation omitted). “[A]lthough district courts exercise wide
discretion in formulating jury instructions, when the refusal of a proffered instruction
simultaneously denies a legal defense, the correct standard of review is de novo.”
United States v. Bruguier, 735 F.3d 754, 757 (8th Cir. 2013) (en banc) (alteration in
original) (emphasis omitted) (quoting United States v. Young, 613 F.3d 735, 744
(8th Cir. 2010)).
William (and Junior and Senior) moved for a multiple conspiracies instruction
that mirrored Eighth Circuit Model Criminal Jury Instruction 5.06B. The proffered
instruction read:
The indictment charges that the defendants were members of one
single conspiracy to commit the crime of Conspiracy to Distribute
Cocaine and Cocaine Base.
The government must convince you beyond a reasonable doubt
that each defendant was a member of the conspiracy to commit the
crime of (insert name of crime), as charged in the indictment. If the
government fails to prove this as to a defendant, then you must [find]
that defendant not guilty of the conspiracy charge, even if you [find]
that he was a member of some other conspiracy. Proof that a defendant
was a member of some other conspiracy is not enough to convict.
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But proof that a defendant was a member of some other
conspiracy would not prevent you from returning a guilty verdict, if the
government also proved that he was a member of the conspiracy to
commit the crime of Conspiracy to Distribute Cocaine and Cocaine
Base, as charged in the indictment.
[A single conspiracy may exist even if all the members did not
know each other, or never met together, or did not know what roles all
the other members played. And a single conspiracy may exist even if
different members joined at different times, or the membership of the
group changed. Similarly, just because there were different subgroups
operating in different places, or many different criminal acts committed
over a long period of time, does not necessarily mean that there was
more than one conspiracy. These are factors you may consider in
determining whether more than one conspiracy existed.]
R. Doc. 249, at 48-49 (bracketed paragraph in original). This proffered instruction
was timely offered and correctly states the law. Therefore, the only issue we must
decide is whether this instruction was supported by the evidence. We find that it
was not.
“Whether a given case involves single or multiple conspiracies depends on
‘whether there was “one overall agreement” to perform various functions to achieve
the objectives of the conspiracy.’” United States v. Radtke, 415 F.3d 826, 838 (8th
Cir. 2005) (quoting United States v. Massa, 740 F.2d 629, 636 (8th Cir. 1984)).
To determine whether multiple conspiracies exist when a single large
conspiracy has been charged by the government, this Court considers
the totality of the circumstances, “including the nature of the activities
involved, the location where the alleged events of the conspiracy took
place, the identity of the conspirators involved, and the time frame in
which the acts occurred.”
United States v. McCarthy, 97 F.3d 1562, 1571 (8th Cir. 1996) (citation omitted).
“A single conspiracy may be found when the defendants share a common overall
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goal and the same method is used to achieve that goal, even if the actors are not
always the same.” United States v. Gilbert, 721 F.3d 1000, 1005 (8th Cir. 2013)
(quoting United States v. Bascope-Zurita, 68 F.3d 1057, 1061 (8th Cir. 1995)).
Additionally, “[t]he fact ‘that a number of separate transactions may have been
involved . . . does not establish the existence of a number of separate conspiracies.’”
United States v. Spector, 793 F.2d 932, 935 (8th Cir. 1986) (second alteration in
original) (quoting United States v. Brewer, 630 F.2d 795, 799 (10th Cir. 1980)).
At trial, an agent involved in the investigation testified for the government.
That agent explained that he wiretapped N.S.’s phone and discovered that Junior was
N.S.’s supplier. N.S. also testified for the government. During his testimony, N.S.
explained that he would buy cocaine from William when he was unable to reach
Junior. Although William alleges that this indicates the existence of a separate
conspiracy between Junior and N.S., we disagree. Junior’s distributions to N.S.
occurred in the same location—Waterloo, Iowa—during the same time period as the
distributions for which William is charged. In fact, N.S.’s testimony establishes that
Junior and William were interchangeable: N.S. could get the same product from
William as he could from Junior when Junior was unavailable. And although
William’s identity as Junior’s brother is not dispositive to our analysis, his familial
relationship to Junior—a co-defendant in this case—is something we may consider.
McCarthy, 97 F.3d at 1571. Because the location and time of the transactions
between N.S. and Junior—as well as the identity of the persons involved and the
product being sold—support the government’s theory of a single conspiracy, we find
that the district court did not err in denying a multiple conspiracies instruction.
4.
Finally, William challenges the district court’s application of witness
intimidation and aggravated role enhancements to his United States Sentencing
Guidelines offense level. He also challenges the substantive reasonableness of his
sentence.
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First, William argues that the evidence did not support an aggravating role
enhancement because he was a low-level, occasional drug dealer. “We review de
novo the district court’s construction and application of the Sentencing Guidelines,
and we review for clear error its factual findings regarding enhancements.” United
States v. Wintermute, 443 F.3d 993, 1004 (8th Cir. 2006). The Guidelines allow for
a four-level sentence enhancement “[i]f the defendant was an organizer or leader of
a criminal activity that involved five or more participants or was otherwise
extensive . . . .” USSG § 3B1.1(a).
To distinguish an organizer or leader from a manager or supervisor, the
court may consider: (1) the exercise of decision[-]making authority, (2)
the nature of participation in the commission of the offense, (3) the
recruitment of accomplices, (4) the claimed right to a larger share of the
fruits of the crime, (5) the degree of participation in planning or
organizing the offense, (6) the nature and scope of the illegal activity,
and (7) the degree of control and authority exercised over others.
United States v. Gaye, 902 F.3d 780, 790 (8th Cir. 2018).
William’s Presentence Investigation Report (PSR) noted that officers
intercepted a phone call in which William discussed not only who worked for him,
but also how much he paid those that worked for him. William objected, stating,
“[William] notes that he does not recall the intercepted phone calls being played
during the jury trial and that his discussions regarding paying workers may have
been in regards to the employees who were paid for their work at his [construction]
business . . . .” R. Doc. 429, at 7. William again objected to this at his sentencing
hearing, stating, “[W]e disagree with the witness intimidation, the two levels there,
and with the four levels for aggravating role.” R. Doc. 539, at 2. At this time, the
court recognized William’s objection, stating, “The defense objects to the witness
intimidation and role in the offense. Both of those enhancements are the
government’s burden by a preponderance of the evidence.” R. Doc. 539, at 2.
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Where a defendant objects to facts included in his PSR, the court has an
obligation to make a factual finding on the disputed issue. United States v. Camacho,
348 F.3d 696, 700 (8th Cir. 2003). “In making its finding, the district court is bound
to do so on the basis of the evidence and not the presentence report because the
presentence report is not evidence and not a legally sufficient basis for making
findings on contested issues of fact.” Id. (quoting United States v. Stapleton, 268
F.3d 597, 598 (8th Cir. 2001)). “We recognize that the Sentencing Guidelines do
not mandate a full evidentiary hearing when a defendant disputes a PSR’s factual
representation. But some investigation and verification of the disputed statements
in the PSR is required.” Stapleton, 268 F.3d at 598 (citation omitted). Further, the
court may make “its findings with respect to the disputed [facts] based on the
evidence at trial.” United States v. Theimer, 557 F.3d 576, 578 (8th Cir. 2009).
At William’s sentencing hearing, an officer with the Waterloo Police
Department testified that Carter “had been middling crack cocaine for William
Campbell a little over a year and up to four times a month and anywhere from one
to four ounces each trip.” R. Doc. 539, at 6. The government also called Officer
Furman as a witness. Officer Furman testified that the organizational structure of
the Campbell family business, ascertained via wiretapped communications,
consisted of Junior and Senior “at the top” with William operating as a retail
distributor to others. R. Doc. 539, at 4. Officer Furman also testified that, through
wiretapped calls, investigators learned that individuals would call William to find
crack cocaine.
One audio recording (a government exhibit played at William’s sentencing
hearing) depicted an unidentified individual calling William “looking for work.” R.
Doc. 539, at 4. Although this could support William’s claim that he was simply a
leader within a legitimate construction business, the government presented evidence
disputing this claim. Government counsel asked Officer Furman, “[A]s part of this
investigation, have you seen any evidence indicating that [William] was operating a
construction business?” to which Officer Furman replied, “No.” R. Doc. 539, at 4.
Government counsel specifically asked Officer Furman whether, during
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surveillance, the investigators saw William “meeting with others that looked like
they were doing construction work” or “with either a vehicle or construction related
items” to which Officer Furman replied, “No.” R. Doc. 539, at 4. On cross-
examination, defense counsel asked Officer Furman, “So when [William] talks about
people working for him and talks about jobs, is that in reference to his business?”
R. Doc. 539, at 5. Counsel clarified, stating, “His rehabilitation business that worked
on houses and so forth.” R. Doc. 539, at 5. Officer Furman responded, “We didn’t
see any evidence of that while we were doing the investigation.” R. Doc. 539, at 5.
At trial, the government introduced as exhibits intercepted text messages
between William and a supply source in Chicago, Illinois, in which William
negotiated the purchase price for a pound of cocaine. Officer Furman also testified
to these messages’ content. Intercepted phone conversations showed that William
was the supply source for Carter and others. Further, the government introduced
wiretapped calls in which William used coded language to discuss “cuts” of profits
between him, Junior, and Senior. This trial evidence demonstrates that William had
decision-making authority in the narcotics’ distribution and purchase price and that
he claimed a right to a “cut” of the profits to be shared between him, his brother, and
his father. It is also apparent (through William’s discussions with the Chicago
supplier, specifically) that he facilitated the transport of out-of-state narcotics to the
Waterloo area for distribution. He then directed that distribution by employing other
members of the organization—like Carter—to distribute the narcotics on his behalf.
After carefully considering this evidence, we find that the district court did not
clearly err in finding that William served as an organizer or leader of the
organization. Gaye, 902 F.3d at 790.
Next, William argues the district court’s two-level witness intimidation
enhancement was unsupported by the evidence. USSG § 2D1.1(b)(16) provides, in
part, “If the defendant receives an adjustment under § 3B1.1 (Aggravating Role) and
the offense involved . . . witness intimidation . . . increase by 2 levels.” As discussed
above, William did receive an adjustment under § 3B1.1 and was therefore eligible
for an enhancement under § 2D1.1(b)(16).
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At trial, A.M. (a government witness) testified that William threatened him
for wearing a wire. When cross-examined about this threat, A.M. was unable to
recall the exact date of the threat but testified that it occurred sometime in 2018.
William argues that A.M.’s testimony was not credible, but any assessment of a
witness’s credibility is within the “province of the trial court” and, on appeal, that
credibility finding is “virtually unreviewable.” United States v. Heath, 58 F.3d 1271,
1275 (8th Cir. 1995). The district court heard A.M.’s testimony and found it to be
credible, and we do not disturb that finding. And, because the district court found
that William had intimidated a witness, it did not err by applying a two-level
enhancement under § 2D1.1(b)(16).
Finally, William asserts that his sentence is substantively unreasonable
because the district court did not properly consider the sentencing factors under 18
U.S.C. § 3553(a). Specifically, referring to the sentence imposed on Junior and
Senior, William claims the district court did not properly consider § 3553(a)(6),
which requires courts to consider “the need to avoid unwarranted sentence
disparities among defendants with similar records who have been found guilty of
similar conduct.”
“This [C]ourt reviews the substantive reasonableness of a sentence for abuse
of discretion.” United States v. Funke, 846 F.3d 998, 1000 (8th Cir. 2017). A district
court abuses its discretion where it “fails to consider a relevant factor that should
have received significant weight”; “gives significant weight to an improper or
irrelevant factor”; or “considers only the appropriate factors but in weighing them
commits a clear error of judgment.” Id. (quoting United States v. Farmer, 647 F.3d
1175, 1179 (8th Cir. 2011)).
While William received a four-level enhancement, Junior and Senior received
a three-level enhancement and no enhancement, respectively, for their roles in the
criminal activity. However, “[t]he statutory direction to avoid unwarranted
disparities among defendants, 18 U.S.C. § 3553(a)(6), refers to national disparities,
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not differences among co-conspirators.” United States v. Pierre, 870 F.3d 845, 850
(8th Cir. 2017).
Further, any broader claim of substantive unreasonableness William presents
also must fail. “Where, as here, a sentence imposed is within the advisory guideline
range, we typically accord it a presumption of reasonableness.” United States v.
Scales, 735 F.3d 1048, 1052 (8th Cir. 2013) (quoting United States v. Deegan, 605
F.3d 625, 634 (8th Cir. 2010)). “[I]t will be the unusual case when [this Court]
reverse[s] a district court sentence—whether within, above, or below the applicable
Guidelines range—as substantively unreasonable.” United States v. Feemster, 572
F.3d 455, 464 (8th Cir. 2009) (en banc). Further, “[t]he district court has wide
latitude to weigh the § 3553(a) factors in each case and assign some factors greater
weight than others in determining an appropriate sentence,” United States v.
Bridges, 569 F.3d 374, 379 (8th Cir. 2009), and a defendant’s disagreement with the
district court’s balancing of relevant considerations does not show that the court
abused its discretion, United States v. Ruiz-Salazar, 785 F.3d 1270, 1273 (8th Cir.
2015).
The district court sentenced William to 360 months, and his advisory
guideline range was 360 months to life imprisonment. Because the district court
imposed the minimum possible sentence within William’s advisory guideline range,
we presume that the sentence was substantively reasonable. Scales, 735 F.3d at
1052. William presents no evidence to overcome this presumption. The court noted
William’s criminal history; his status as a recidivist or career offender; his threat to
a co-defendant and witness; and his status as a leader, organizer, and recruiter for
the organization. It opined that the mitigating factors were “far outweighed” by the
aggravating factors. R. Doc. 555, at 8. It engaged in a thorough discussion of
William’s history and characteristics and noted his mental health issues, substance
abuse issues, financial stressors, and regular gambling habits. Finally, the court—
twice—expressly recognized the § 3553(a) factors and their application, stating first,
“The Court finds no basis for a downward variance and no basis for a downward
departure. I have analyzed the case using the 3553(a) factors of Title 18.” R. Doc.
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555, at 8. Then, later, “The 3553(a) factors of Title 18 were analyzed by this Court,
remembering, of course, that I was the trial judge and I had the benefit of additional
evidence at the sentencing hearing back in March.” R. Doc. 555, at 8-9. Therefore,
the district court did not abuse its discretion in applying the § 3553(a) factors or in
imposing the within-guidelines sentence.
B. Junior’s Appeal
A jury convicted Junior of conspiracy to distribute cocaine and cocaine base
(Count 1) and possession with intent to distribute cocaine (Count 14). Junior asserts
four claims on appeal: (1) that the district court erred in denying his motion to
suppress the wiretap evidence; (2) that the district court erred by granting the
government’s motion to sever; (3) that the evidence was insufficient to sustain his
convictions; and (4) that the district court erred by limiting cross-examination.
1.
Junior first argues that the district court erred in denying his motion to
suppress the wiretap evidence because the government did not properly minimize
irrelevant communications. The issue of whether the government properly
minimized intercepted communications “is one of fact, and we review the district
court’s determination under the clearly erroneous standard.” United States v.
O’Connell, 841 F.2d 1408, 1417 (8th Cir. 1988).
Investigators must conduct surveillance “in such a way as to minimize the
interception of communications not otherwise subject to interception.” 18 U.S.C.
§ 2518(5). Under this statute, investigators must properly minimize
communications which do not “concern the offense under investigation.” United
States v. Macklin, 902 F.2d 1320, 1328 (8th Cir. 1990). “This provision is nothing
more than a command to limit surveillance as much as possible.” United States v.
Daly, 535 F.2d 434, 441 (8th Cir. 1976).
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When determining whether the government complied with 18 U.S.C.
§ 2518(5)’s minimization mandate, we ask whether its conduct was reasonable by
applying an objective reasonableness standard. Id. Our inquiry looks to several
factors, including the criminal activity’s scope, the investigating agents’ reasonable
expectations of the communications’ content, the authorizing judge’s continuing
judicial supervision, the communications’ length and origin, and whether the
speakers relied on coded or ambiguous language. Macklin, 902 F.2d at 1328; see
also Daly, 535 F.2d at 441-42.4 In Scott v. United States, 436 U.S. 128, 139-40
(1978), the Supreme Court emphasized the flexibility of this inquiry:
Because of the necessarily ad hoc nature of any determination of
reasonableness, there can be no inflexible rule of law which will decide
every case. The statute does not forbid the interception of all
nonrelevant conversations, but rather instructs the agents to conduct the
surveillance in such a manner as to “minimize” the interception of such
conversations. Whether the agents have in fact conducted the wiretap
in such a manner will depend on the facts and circumstances of each
case.
Here, the district court included in its wiretap order instructions to
investigators to minimize the number of communications intercepted that did not
relate to the investigation. Officer Furman testified that, to comply with the court’s
minimization instructions, the AUSA created a team of investigators responsible for
minimization. This minimization team was responsible for monitoring the voice and
text communications from the target cell phones, and no investigator could
participate as a member of this team until receiving these instructions. This team
intercepted phone calls in real time and determined their relevance; it ceased
listening to and recording irrelevant calls. When the team believed a call might be
relevant, it would forward that call to the drug task force which would then listen
and independently determine its relevance. If a drug task force investigator deemed
the call irrelevant, the investigator would stop listening to the call and instead
4
In Daly, we explained that although these factors are instructive, “[w]e do
not imply that a trial or reviewing court should not consider other factors in cases
presenting different circumstances.” 535 F.2d at 441.
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intermittently spot check the call to determine whether the call had become relevant.
The minimization team also employed procedures specific to their interception of
text communications: if the team found that an intercepted text message was
irrelevant to the investigation, it did not forward that message to drug task force
investigators.
After reviewing this record, we agree with the district court that the
government properly complied with 18 U.S.C. § 2518(5)’s minimization mandate.
The surveilled criminal activity was expansive, stretching from April 2015 to March
2017, involving multiple individuals and numerous drug transactions. Drug task
force agents were not privy to irrelevant communications except for those that they
spot-checked. In Daly, this Court found that investigators substantially complied
with § 2518 where their only exposure to irrelevant communications was through
spot-checking. 535 F.2d at 441-42 (“We recognize that monitoring agents are not
gifted with prescience. . . . Because even innocent conversations often times turn to
criminal matters, spot-checking of such conversations is permissible especially in a
case such as this involving a broad scope of criminal activity and a sophisticated
criminal element.” (citation omitted)). Additionally, the district court was apprised
of the investigation and its minimization: The government asked for an extension of
the court’s wiretap order four times and each time presented evidence of the
communications that they had intercepted. These minimization techniques were
objectively reasonable, and because of this, the district court did not err in denying
Junior’s motion to suppress.
2.
Junior next argues that the district court erred by granting the government’s
motion to sever the trial of co-defendants J.P. and Carter from that of Junior and the
other defendants because it did so only one month prior to the scheduled trial date
and because the government did not show that actual prejudice, sufficient to
outweigh the strong preference for a joint trial, would occur absent severance. Rule
14 of the Federal Rules of Criminal Procedure permits severance of defendants’
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trials where the moving party would be prejudiced by a joint trial. “The general rule
is that persons charged in a conspiracy should be tried together, particularly where
proof of the charges against the defendants is based upon the same evidence and
acts.” United States v. Lee, 743 F.2d 1240, 1248 (8th Cir. 1984). However, “[a]
motion to sever rests within a district court’s sound discretion, and we will not
reverse that decision absent a showing of clear prejudice indicating an abuse of
discretion.” United States v. Garcia, 785 F.2d 214, 220 (8th Cir. 1986).
The government argued that it would incur prejudice if J.P. and Carter were
tried with the other defendants. J.P.’s and Carter’s statements implicated Junior,
Senior, and William, and because Junior, Senior, and William would not have been
able to cross-examine J.P. and Carter—their co-defendants—the statements could
not have been admitted in full. Further, the government argued, the statements could
not have been redacted in a way that would have comported with the standard set
out in Bruton v. United States, 391 U.S. 123 (1968). Because the statements were
important in proving that a conspiracy existed, the government argued, severance
was necessary.
In Bruton, the Supreme Court demarcated the proper function of limiting
instructions in joint trials, explaining that even “clear” instructions are not “adequate
substitute[s]” for a defendant’s right to cross-examination. Id. at 137. The Eighth
Circuit later explained:
[A] defendant’s constitutional rights are violated when the court admits
the out-of-court statements of a codefendant, which, “despite redaction,
obviously refer directly to someone, often obviously the defendant, and
which involve inferences that a jury ordinarily could make
immediately, even were the confession the very first item introduced at
trial.”
United States v. Gayekpar, 678 F.3d 629, 636-37 (8th Cir. 2012) (quoting Gray v.
Maryland, 523 U.S. 185, 196 (1998)); see also United States v. Long, 900 F.2d 1270,
1280 (8th Cir. 1990) (“We [have] distinguished cases where presentation of the
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redacted statement draws the jury’s attention to the fact that a name was omitted and
invites the jury to fill in the blank, and cases where the redacted statement does not
invite speculation.”).
J.P. and Carter both gave detailed statements to Waterloo police. After Carter
was arrested, he stated that he did not sell drugs but acted as a middleman, delivering
cocaine from a distributor (who he then identified as “T.R.”) to retail-level dealers.
R. Doc. 191, at 3. However, in a later proffer interview, Carter identified William
as his distributor. In his interview, Carter characterized the Campbell family as a
major source of cocaine in the Waterloo area and stated that Senior had provided
him with “a lot” of cocaine. R. Doc. 191, at 3. After J.P. was arrested, he made
post-Miranda5 statements to Waterloo police, admitting his involvement in a drug-
trafficking organization and naming some of his suppliers and customers. R. Doc.
191, at 3. He then worked as a cooperator for the government and made several
controlled payments to Junior to pay off his drug debts. In a proffer interview, J.P.
named Junior, Senior, and William as members of the organization, stated that he
had first discussed joining the organization with Junior, and described purchasing
large amounts of cocaine from Junior on several occasions (which he then distributed
for retail sale). R. Doc. 191, at 4.
The district court was tasked with deciding whether the government could
redact J.P.’s and Carter’s statements in a way that would not “invite[] the jury to fill
in the blank” or “invite speculation.” Long, 900 F.2d at 1280. The court found that
the statements “[could not] be sufficiently redacted to comply with the dictates of
Bruton without substantially compromising their evidentiary value.” R. Doc. 191,
at 5. We agree. J.P.’s and Carter’s statements were crucial to the government’s case
because those statements were strong evidence of the men’s involvement in the
larger conspiracy. Even when redacted, Carter’s description of a family prominent
in the Waterloo drug trade and J.P.’s description of his supplier and the controlled
payments he made to that supplier would “invite[] the jury to fill in the blank” in
5
Miranda v. Arizona, 384 U.S. 436 (1966).
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violation of Bruton. Long, 900 F.2d at 1280. As the district court explained: “The
statements would inevitably ‘le[ad] the jury straight to’ the other Defendants. The
government would be forced to omit them entirely to avoid running afoul of Bruton.
The inability to use the statements, however, would be a substantial blow to the
government’s case, creating severe prejudice.” R. Doc. 191, at 5-6 (alteration in
original) (citation omitted). The government met its burden of establishing that it
would suffer prejudice if the severance was not granted. Therefore, we affirm the
district court’s severance of J.P. and Carter from Junior and the other defendants for
trial.
3.
Junior also contends that there was insufficient evidence to sustain his
convictions for conspiracy to distribute cocaine and cocaine base and possession
with intent to distribute cocaine. At the conclusion of trial, Junior moved for
judgment of acquittal or in the alternative, a new trial. We therefore “review the
sufficiency of the evidence to sustain [this] conviction de novo, viewing the evidence
in the light most favorable to the jury’s verdict and reversing only [where] no
reasonable jury could have found the defendant guilty beyond a reasonable doubt.”
United States v. Ramos, 852 F.3d 747, 753 (8th Cir. 2017) (citation omitted). After
reviewing the record, we find that there was sufficient evidence to sustain Junior’s
convictions.
On appeal, Junior argues that the government failed to present evidence that
he was knowingly involved in a conspiracy to distribute cocaine and cocaine base.
“To establish that a defendant conspired to distribute drugs, the government must
show that there was an agreement to distribute drugs, that the defendant knew of the
conspiracy, and that the defendant intentionally joined the conspiracy.” United
States v. Davis, 826 F.3d 1078, 1081 (8th Cir. 2016). “The government [does] not
need to show a formal agreement; showing a tacit agreement by understanding
proven wholly by circumstantial evidence or by inferences from the parties’ actions
is sufficient.” United States v. Casas, 999 F.2d 1225, 1229 (8th Cir. 1993) (quoting
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United States v. Searing, 984 F.2d 960, 964 (8th Cir. 1993)). Merely showing the
defendants’ knowledge of the conspiracy is insufficient, however; instead, the
government must establish “knowing involvement and cooperation.” Id.
Three different cooperators, who later testified at trial, arranged to purchase
cocaine from Junior. J.P. made four controlled cash payments to Junior, which were
each captured on an audio recording device and later played at trial, and at trial, J.P.
testified that these payments were reimbursements for narcotics that Junior had
advanced to J.P. for retail sale. N.S. testified that he purchased cocaine and cocaine
base from Junior on multiple occasions. Finally, A.M. testified that he observed
Junior delivering a kilogram of cocaine to another retail dealer. When testifying
about the government’s wiretap of Junior’s phone, Officer Furman stated that Junior
spoke in coded language—frequently used by narcotics traffickers—when speaking
to co-defendants William and Senior. Additionally, this wiretap revealed Junior’s
conversations with a narcotics supplier in Texas. In these intercepted
communications, Junior discussed sending $63,000 to the Texas supplier for
cocaine. Junior then met with an associate assigned to transport money to Texas.
Officers stopped this associate and, after searching her car, seized $19,600 in cash.
Investigators later intercepted communications between Junior and the Texas
supplier in which they discussed the loss of this seized cash. Finally, after executing
several search warrants on Junior’s residence and Junior’s storage unit, officers
recovered firearms; ammunition; equipment to convert cocaine into cocaine base
with cocaine residue on it; materials for packaging cocaine for retail sale and
chemicals commonly used as cocaine cutting agents; and a coffee can with a false
bottom containing approximately 37 grams of cocaine base, four grams of powder
cocaine, and cutting agents.
We have explained that a jury’s determination of witness credibility should
not be disturbed absent a showing that the testimony was implausible on its face.
See Ramos, 852 F.3d at 753 (“[A]ccomplice testimony need not be corroborated to
support a conviction. Unless the testimony is implausible on its face . . . we defer to
the jury’s determination of whether an accomplice is credible.” (citation omitted));
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see also United States v. Mallett, 751 F.3d 907, 916 (8th Cir. 2014) (“‘[W]e do not
consider attacks on witnesses’ credibility when we are evaluating an appeal based
upon the sufficiency of evidence.’ And ‘[w]e have repeatedly upheld jury verdicts
based solely on the testimony of co-conspirators and cooperating witnesses, noting
that it is within the province of the jury to make credibility assessments and resolve
conflicting testimony.’” (second alteration in the original) (citations omitted)).
Junior presents no evidence that the cooperators’ testimony was implausible on its
face, and we therefore defer to the jury’s determination of credibility.
As to Junior’s possession conviction, he claims that the government failed to
produce sufficient evidence of his knowledge of the controlled substance to support
a theory of constructive possession. Specifically, Junior asserts that the government
failed to present evidence that he knew of the coffee can (with a false bottom
containing approximately 37 grams of cocaine base, 4 grams of powder cocaine, and
cutting agents) or that he used the storage unit from which officers seized the can.
Constructive possession exists where a person has knowledge of the presence
of contraband and control over that contraband. United States v. Wright, 739 F.3d
1160, 1168 (8th Cir. 2014). “Evidence showing a person has ‘dominion over the
premises in which the contraband is concealed’ establishes constructive possession.”
Id. (quoting United States v. Ojeda, 23 F.3d 1473, 1475 (8th Cir. 1994)). At trial,
the government presented evidence that Junior had rented the storage unit, that
officers found mail addressed to Junior inside the unit, and that officers found a
receipt for the unit in Junior’s residence. Further, one of Junior’s own witnesses
testified that she gave Junior the coffee can. Finally, the cutting agents found in the
can’s false bottom were the same kind of cutting agents recovered from the search
of Junior’s residence. In light of this evidence, we cannot say that no reasonable
jury could find Junior guilty under a theory of constructive possession. Ramos, 852
F.3d at 753. Therefore, after reviewing the government’s evidence presented, we
conclude that Junior’s convictions are supported by sufficient evidence.
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4.
Finally, Junior claims that the district court erred by limiting cross-
examination of the government’s cooperating witnesses. For the reasons discussed
above, see supra Section II.A.2, we find that the district court did not err.
C. Carter’s Appeal
A jury convicted Carter of conspiracy to distribute cocaine and cocaine base
(Count 1) and possession with intent to distribute cocaine base (Count 13). Carter
presents three claims on appeal: (1) the district court erred by denying his request
for a buyer-seller instruction; (2) there was insufficient evidence to sustain his
convictions; and (3) his sentence is substantively unreasonable.
1.
First, Carter claims that the district court erred by denying his request for a
buyer-seller jury instruction because, contrary to the government’s theory, only a
buyer-seller relationship existed between him and the Campbell family. As
explained above, see supra Section II.A.3, we apply a de novo standard where the
district court’s refusal of a proffered jury instruction simultaneously denies a legal
defense. Bruguier, 735 F.3d at 757. After reviewing de novo the government’s
evidence, we find that the district court did not err in denying Carter’s request for a
buyer-seller instruction.
This Court recently emphasized that a buyer-seller instruction is only
appropriate in limited circumstances. See United States v. Harris, 966 F.3d 755, 761
(8th Cir. 2020) (“But we have emphasized that such buyer-seller cases involve only
evidence of a single transient sales agreement and small amounts of drugs consistent
with personal use.” (quoting United States v. Shelledy, 961 F.3d 1014, 1019 (8th
Cir. 2020)). Where there is evidence that a defendant engaged in multiple sales of
large quantities of narcotics, a buyer-seller instruction is inappropriate. Id.; see also
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United States v. Conway, 754 F.3d 580, 592 (8th Cir. 2014) (“Where the conspiracy
involves large quantities of drugs and significant interaction between dealers and
users over an extended period of time, the instruction is inappropriate.”).
In January 2017, law enforcement conducted a traffic stop of Carter after he
left William’s residence. During that stop, officers seized 12.94 grams of crack
cocaine; a government witness testified at trial that this amount of cocaine is not
consistent with a drug-user but rather, a drug-trafficker “just by the sheer volume of
it.” R. Doc. 549, at 107-108. Further, at Carter’s trial, the government presented a
cooperating witness who testified that he first bought crack cocaine from Carter in
2015 or 2016 and continued buying from him until Carter’s 2017 traffic stop and
arrest. The witness explained that he purchased crack cocaine from Carter almost
every day—sometimes twice a day. That witness further testified that Carter acted
as a middleman: Carter obtained cocaine from William, which he then sold to the
witness. The government also presented an investigator who testified that a search
of Carter’s residence uncovered items consistent with drug trafficking: a scale and a
large number of baggies. Most telling, perhaps, is the multitude of phone
conversations and text messages exchanged between Carter and William and
introduced by the government at trial: in them, the two men discussed the availability
of cocaine; disruptions in the narcotics supply chain; a third, unidentified person
who owed Carter money; and William offering Carter a decreased price because of
his bulk cocaine purchase. Further, these exhibits revealed that Carter had his own
customers.
This evidence does not support a buyer-seller instruction. Instead, the
evidence portrays multiple drug sales spanning an extended period of time and
involving multiple transactions of drug amounts much larger than those required for
personal use. Harris, 966 F.3d at 761; Conway, 754 F.3d at 592. Carter maintains
that the 93 text messages and 92 phone calls exchanged between him and the
Campbells and intercepted via wiretap were not indicative of his involvement in the
conspiracy, but rather, were indicative of his familial relationship to the Campbell
family: one of Carter’s children is married to one of the Campbell children.
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However, the phone calls and text messages introduced do not support this claim
because, in each, the two men discuss narcotics sales. However, even if we assume
that Carter is correct, a buyer-seller instruction would still be inappropriate in light
of the other evidence presented at trial. Therefore, we find that the district court did
not err in denying a buyer-seller instruction.
2.
Carter next alleges that there was insufficient evidence to support his
convictions for conspiracy to distribute cocaine and cocaine base and possession
with intent to distribute cocaine base. Because Carter did not move for acquittal at
the close of the government’s case, at the close of all evidence, or after the jury’s
verdict, “we reverse only if the district court, in not sua sponte granting judgment of
acquittal, committed plain error.” United States v. Calhoun, 721 F.3d 596, 600 (8th
Cir. 2013). Plain error only exists where the district court’s error affected the
defendant’s substantial rights and “seriously affect[ed] the fairness, integrity, or
public reputation of judicial proceedings.” Id.
Carter cannot meet that high standard here. The government “must [only]
show that there was an agreement to distribute drugs, that the defendant knew of the
conspiracy, and that the defendant intentionally joined the conspiracy.” Davis, 826
F.3d at 1081. As we explained supra Section II.B.3, the government need not show
a formal agreement to sustain a conspiracy conviction. Casas, 999 F.2d at 1229.
Carter argues that the evidence was insufficient to support a conspiracy conviction
because only a buyer-seller relationship existed between him and the Campbells.
However, as we discussed above, see supra Section II.C.1, the evidence supports the
finding that his relationship with the Campbells exceeded that of a buyer-seller, and
therefore, this argument fails.
Further, Carter argues that the government’s evidence was insufficient to
support his conviction for possession with intent to distribute cocaine base. To
convict a defendant of possession with intent to distribute a controlled substance, the
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government must prove beyond a reasonable doubt that the defendant “both
knowingly possessed and intended to distribute the drugs.” United States v.
Morales, 813 F.3d 1058, 1065 (8th Cir. 2016) (citation omitted). When explaining
why the evidence was insufficient to support his conviction for possession with
intent to distribute cocaine base, Carter simply argues that evidence presented at trial
on Count 13 is “inextricably intertwined” with the evidence for Count 1. Again,
because his relationship with the Campbells was much more extensive than that of
a buyer-seller, this argument fails. We conclude that the evidence was sufficient to
support Carter’s conviction.
3.
Finally, Carter argues that his sentence is substantively unreasonable.
Specifically, Carter argues that the district court erred in denying his motion for a
downward variance and that the court failed to adequately consider mitigating
factors. As explained above, see supra Section II.A.4, we review substantive
reasonableness under an abuse of discretion standard. Funke, 846 F.3d at 1000.
The district court sentenced Carter to a within-guidelines sentence of 360
months. Because this sentence is within the advisory guideline range, we presume
it to be reasonable. Scales, 735 F.3d at 1052. Carter alleges the district court did
not adequately consider mitigating factors and, as a result, incorrectly denied
Carter’s motion for a downward variance. However, the district court specifically
explained that a downward variance was inappropriate because the “aggravating
factors far outweigh[ed] the mitigating factors.” R. Doc. 565, at 12. The district
court looked at Carter’s “many” state court drug convictions and noted that he is a
“recidivist drug dealer.” R. Doc. 565, at 12. Carter suggests that the court did not
consider his battle with substance abuse issues, but the court noted its “hope” that
Carter would request assistance with his “serious substance abuse history.” R. Doc.
565, at 13. As we have previously explained, “[s]imply because the district court
weighed relevant factors . . . more heavily than [the defendant] would prefer does
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not mean the district court abused its discretion.” Farmer, 647 F.3d at 1179. The
district court exercised its wide latitude, Goodson, 569 F.3d at 379, and found that
360 months was appropriate after “considering each and every factor under 18
United States Code Section 3553(a),” R. Doc. 565, at 13. We conclude that the
district court did not abuse its discretion in sentencing Carter.
D. Senior’s Appeal
A jury convicted Senior of conspiracy to distribute cocaine and cocaine base
(Count 1) and distribution of cocaine base (Count 3). Senior asks this Court to
consider three contentions on appeal. First, he contends the district court erred in
denying his requests for a multiple conspiracies and a buyer-seller instruction.
Second, he argues there was insufficient evidence to support his convictions.
Finally, Senior claims the district court erred in denying his motion for a new trial.
1.
First, Senior argues the district court erred in denying his requests for a
multiple conspiracies jury instruction and for a buyer-seller jury instruction.
Because above, see supra Sections II.A.3 and II.C.1, we discussed the applicable law
in great detail, we do not engage in that analysis again, here. Rather, we look only
to the facts unique to Senior’s trial, applying de novo review. Bruguier, 735 F.3d at
757.
Like William, Senior argues that N.S.’s testimony evidences a separate
conspiracy between N.S. and Junior. Again, we disagree. At trial, the government
presented robust evidence indicating that Senior was a member of the same
conspiracy as N.S. and Junior. A cooperator for the Waterloo police, using a
cooperating witness and $200 of preserialized bills, purchased cocaine base from
Senior while wearing a recording device. At trial, that cooperator identified Senior
as the supplier who sold cocaine base to him during the controlled buy. A different
cooperator testified that he had observed Senior and Junior delivering a kilogram of
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cocaine to another member of the organization. Further, wiretap evidence revealed
that Senior was aware that he was under investigation; during intercepted
communications between Junior and Senior, the two men referred to the “task” and
its surveillance of Junior. The nature of Senior’s activities—i.e., the sale of cocaine
and cocaine base—are identical to that of the other co-conspirators charged. Like
N.S., Junior, William, and Carter, Senior operated within the Waterloo area. Further,
he frequently communicated—in coded language—with the other conspirators.
Because the nature of his activities, the location in which he operated, and the
identity of the persons involved are virtually identical to that in Junior’s case, the
evidence supports the government’s single-conspiracy theory.
Senior also claims that he and N.S. did not know one another. Even if this is
true, it does not defeat the government’s single conspiracy theory. “Furthermore,
‘[a] conspirator . . . need not know all of the conspirators or be aware of all the details
of the conspiracy, so long as the evidence is sufficient to show knowing contribution
to the furtherance of the conspiracy.’” United States v. Johnson, 719 F.3d 660, 666
(8th Cir. 2013) (alterations in original) (citation omitted); see also United States v.
Benford, 360 F.3d 913, 914 (8th Cir. 2004) (“A single conspiracy may exist even if
the participants and their activities change over time, and even if many participants
are unaware of, or uninvolved in, some of the transactions.” (emphasis added)).
Therefore, we affirm the district court’s denial of Senior’s request for a multiple
conspiracies instruction. Additionally, because the evidence evinces Senior’s role—
one involving multiple transactions and a large quantity of narcotics sold—a buyer-
seller instruction was also inappropriate, and the district court did not err in denying
the proffered instruction. Harris, 966 F.3d at 761.
2.
Senior next argues that the evidence presented at trial was insufficient to
support his convictions for conspiracy to distribute cocaine and cocaine base and
distribution of cocaine base. Senior moved for acquittal after the close of the
government’s evidence—and renewed that motion at the close of Junior’s
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evidence—but the district court denied it. We therefore conduct de novo review.
Ramos, 852 F.3d at 753.
We have previously discussed the government’s burden to sustain a
conspiracy conviction, supra Section II.B.3, and we do not reiterate that here. To
sustain a conviction for the distribution of a controlled substance, the government
must prove beyond a reasonable doubt that the defendant “intentionally transferred
cocaine base to another person” and that, at the time of the transfer, the defendant
knew he was dealing a controlled substance. See, e.g., United States v. Thompson,
686 F.3d 575, 582 (8th Cir. 2012).
Senior claims that because the controlled buy, previously discussed supra
Section II.D.1, was not observed, videoed, or photographed, and because the
preserialized money was never recovered, it cannot support his convictions. We
disagree. Although officers observed the wrong car during the controlled buy, the
cooperator wore an audio recording device, an officer testified at trial that the voice
on the recording was that of Senior, and the cooperator who participated in the buy
also identified Senior (at trial) as the supplier during that buy.
Senior also challenges the credibility of the government’s witnesses. For
example, he challenges Officer Furman’s credibility and asserts Officer Furman’s
interpretation of Senior, Junior, and William’s coded language is “speculative.”
However, as we discussed supra Section II.B.3, we do not consider attacks on
witness credibility when evaluating the sufficiency of the evidence, and the jury’s
credibility determinations of cooperating witnesses will not be disturbed absent
evidence that the testimony was implausible on its face. Mallett, 751 F.3d at 916;
Ramos, 852 F.3d at 753. Senior presents no evidence indicating that the cooperator’s
testimony was implausible on its face, and therefore, we leave the jury’s credibility
determination undisturbed. Further, the abundance of evidence against Senior,
which we outlined in our discussion of the district court’s denial of Senior’s
requested multiple conspiracies instruction, is also relevant here. See supra Section
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II.D.1. After reviewing the record, we find that the government presented sufficient
evidence to support Senior’s conspiracy and distribution convictions.
3.
Finally, Senior argues that the district court erred in denying his motion for a
new trial. “We review the denial of a motion for a new trial for an abuse of
discretion.” Southland Metals, Inc. v. Am. Castings, LLC, 800 F.3d 452, 461 (8th
Cir. 2015). In light of our finding that there was sufficient evidence to sustain
Senior’s convictions, supra Section II.D.2, we similarly find that the district court
did not abuse its discretion in denying Senior’s motion for a new trial.
III.
For the above-stated reasons, we affirm the district court in full.
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