United States v. Heyward Sanders , 778 F.3d 1042 ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 26, 2014 Decided February 27, 2015
No. 11-3067
UNITED STATES OF AMERICA,
APPELLEE
v.
HEYWARD CARZELL SANDERS,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cr-00165-4)
Beverly G. Dyer, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A.J. Kramer,
Federal Public Defender. Neil H. Jaffee, Assistant Federal
Public Defender, entered an appearance.
Stephen F. Rickard, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Ronald C.
Machen Jr., U.S. Attorney, and Elizabeth Trosman, Suzanne
Grealy Curt, Kenneth F. Whitted, and David Kent, Assistant
U.S. Attorneys.
Before: GARLAND, Chief Judge, and WILLIAMS and
RANDOLPH, Senior Circuit Judges.
-2-
Opinion for the Court filed by Chief Judge GARLAND.
GARLAND, Chief Judge: Heyward Sanders appeals his
conviction for conspiracy to distribute heroin. He contends that
the trial court erred by foreclosing a request for hybrid legal
representation, by denying his request for a multiple
conspiracies jury instruction, and by failing to give an adequate
response to a note from the jury. For the reasons set forth
below, we affirm the judgment of the district court.
I
In November 2008, law enforcement authorities began to
investigate narcotics activity in and around Potomac Gardens, a
housing project in the District of Columbia. In August 2009,
agents obtained a wiretap on a telephone owned by Matthew
Joseph, a former Potomac Gardens resident known to his
associates as Fat Mack. The agents learned that Joseph
coordinated a network of people distributing heroin, suboxone
pills, and crack cocaine. Among his associates were
“lieutenants” who helped him procure narcotics and prepare
them for distribution, and “runners” who sold narcotics on the
street.1
In October 2009, a mutual acquaintance described appellant
Heyward Sanders to Joseph as a potential supplier of high-
quality heroin. Joseph received an initial test sample, which his
associates described as “some of the best heroin that they had
around that area in a long time.” 4/28 Trial Tr. 44. After a night
of gambling, Joseph asked his acquaintance to set up a deal with
Sanders, and the three of them met at a shopping center in
1
The facts recited in this and the following four paragraphs come
from wiretaps that were admitted into evidence, and/or Matthew
Joseph’s trial testimony.
-3-
Greenbelt, Maryland on October 10. Joseph purchased 200
grams of heroin from Sanders for $15,000.
After this first transaction, Joseph dealt directly with
Sanders. The following day, Sanders warned Joseph that he
(Sanders) had a “lot of eyes” on him, but he agreed to meet
Joseph in an alley behind a school near Potomac Gardens. App.
212-14; see 4/28 Trial Tr. 61-63. Joseph purchased heroin from
Sanders five more times. Twice, he purchased 100 grams from
Sanders at the Greenbelt shopping center, paying $7500 on the
first occasion and $7000 on the second. Later in October,
Sanders began obtaining heroin from a new source and provided
Joseph with test samples. On October 27, Joseph told Sanders
he was out of heroin, and the two agreed to meet near the same
school. There, Sanders sold Joseph six grams of heroin,
“fronting” the drugs on credit. 4/28 Trial Tr. 47. Joseph later
paid $100 per gram, higher than the usual price because the
drugs were from Sanders’ personal supply. That evening,
Joseph told Sanders that the heroin was weaker than the initial
batch.
The wiretap on Joseph’s telephone recorded a number of
conversations with Sanders in late October and November. On
an unknown date during that period, Joseph and Sanders again
met near Potomac Gardens, and Joseph bought another 50 grams
of heroin for $4000. In their final transaction in December
2009, Joseph purchased 25 grams for $2250. Joseph testified at
trial that the quality of Sanders’ heroin had been deteriorating
over time, and that he stopped purchasing heroin from Sanders
because Sanders no longer had any available.
Joseph’s telephone conversations revealed that Sanders was
not his only heroin supplier. Around the same time, he was also
dealing with another supplier, Joseph Richardson. In a
December 10 transaction monitored by law enforcement, Joseph
-4-
purchased 50 grams of heroin from Richardson for $3500.
Police officers stopped Richardson after the sale and seized the
cash, prompting Richardson to call Joseph to complain.
In late December 2009, agents obtained a wiretap on
Sanders’ phone. On March 15, 2010, when he was no longer
selling heroin to Joseph, Sanders had a conversation with James
Leak, with whom Sanders had also made heroin deals. Leak
mentioned that a man named “Fat somebody” had been “doing
real good for the last two years” in Potomac Gardens. App. 165.
Sanders, aware of Joseph’s nickname, responded, “You talking
about Fat Mack?” Id. When Leak continued describing Fat
Mack’s success in Potomac Gardens, Sanders twice told Leak
that Fat Mack “use[d] to purchase from you.” Id. at 166.
Officers searched Sanders’ house on May 13, 2010. On
June 15, a grand jury returned an indictment against Sanders and
eight others. Sanders was named only in Count One, which
charged all nine codefendants with conspiring to distribute and
possess with intent to distribute cocaine, 50 grams or more of
crack cocaine, and 100 grams or more of heroin. All eight of
Sanders’ codefendants pled guilty, and Joseph testified as a
cooperating witness at Sanders’ trial. Sanders represented
himself at trial, with standby counsel available. He did not
testify and did not present evidence in his defense.
The jury convicted Sanders of conspiring to distribute and
possess with intent to distribute 100 grams or more of heroin; it
acquitted him as to cocaine and crack cocaine. Sanders raises
three principal challenges on appeal, to which we now turn.
II
Sanders first contends that the district court erred by sua
sponte instructing him that he did not have a right to hybrid
-5-
representation -- an arrangement in which he could represent
himself while also allowing his counsel to participate in the trial.
Shortly before trial, Sanders expressed a desire to represent
himself, and his pretrial counsel accordingly filed a motion to
withdraw. At the motions hearing, the district court “strongly
urge[d]” Sanders to allow his lawyer to continue representing
him, without success. Supp. App. 115. Among other things, the
court told Sanders that, if he represented himself, he could get
help from standby counsel. But under that arrangement, the
court said, such counsel “could not actively participate in the
trial,” and Sanders would be responsible for organizing his
defense, picking a jury, calling witnesses, and making
arguments. Id. at 94-95. After asking again whether Sanders
wished to waive his right to counsel, the court found that
Sanders had “knowingly and voluntarily” waived that right. Id.
at 117. It then reiterated to Sanders the responsibilities of self-
representation. It advised Sanders that his counsel would serve
on a “standby” basis, that Sanders would be able to consult with
his standby counsel on “basic courtroom mechanics and routine
clerical procedural matters,” but that Sanders would have to
make motions, argue issues, select the jury, question witnesses,
and make objections himself. Id. at 118-19. Addressing
Sanders, the district court said: “You do not have the right to a
hybrid representation by which you represent yourself and ask
[your counsel] also to represent you and make some arguments
for you. You cannot do that.” Id. at 118. Neither Sanders nor
his pretrial counsel objected during the hearing.
Sanders’ standby counsel remained available throughout the
trial, and, at least twice, the district court ensured that Sanders
had consulted with counsel on particular issues or advised him
to do so. See 4/28 Trial Tr. 187-88; 5/3 Trial Tr. 6-7. Sanders
never requested or expressed an interest in hybrid
representation. On appeal, Sanders claims that the district court
-6-
“erred in informing Sanders he had no right to request hybrid
representation under any circumstances” -- “no right even to ask
the district court in its discretion to allow counsel to represent
him in part.” Sanders Br. 26 (emphasis added).
Because Sanders did not object to the district court’s
statements, and never indicated an interest in hybrid
representation, we review his claim for plain error only. FED. R.
CRIM. P. 52(b). This means that Sanders has the burden of
showing there is “‘(1) error, (2) that is plain, and (3) that
affect[s] substantial rights. If all three conditions are met, an
appellate court may then exercise its discretion to notice a
forfeited error, but only if (4) the error seriously affect[s] the
fairness, integrity, or public reputation of judicial proceedings.’”
United States v. Simpson, 430 F.3d 1177, 1183 (D.C. Cir. 2005)
(quoting Johnson v. United States, 520 U.S. 461, 467 (1997)
(internal citations and quotation marks omitted)). In most cases,
to affect the defendant’s substantial rights, “‘the error must have
been prejudicial: It must have affected the outcome of the
district court proceedings.’” Id. at 1183-84 (quoting United
States v. Olano, 507 U.S. 725, 734 (1993)); see United States v.
Williams, 773 F.3d 98, 105 (D.C. Cir. 2014).
But the standard of review does not matter here because
Sanders’ claim fails at the first step: there was no error at all.
The district court did not instruct Sanders that he had no right
“even to ask” for hybrid representation. Instead, it simply told
him that he did “not have the right to a hybrid representation.”
Supp. App. 118. That instruction correctly stated the law. See
McKaskle v. Wiggins, 465 U.S. 168, 183 (1984) (“Faretta [v.
California, 422 U.S. 806 (1975), the case establishing the right
of a defendant to conduct his own defense,] does not require a
trial judge to permit ‘hybrid’ representation . . . .”); United
States v. Washington, 353 F.3d 42, 46 (D.C. Cir. 2004) (“A
defendant does not have a right to combine self-representation
-7-
with representation by counsel.”); United States v. Tarantino,
846 F.2d 1384, 1419-20 (D.C. Cir. 1988) (holding that there is
no constitutional right to hybrid representation, and affirming a
conviction where the trial court told the defendant “that he had
to choose between representing himself and being represented
by appointed counsel” (emphasis added)).
III
Sanders next contends that the district court erred in
denying his request for a multiple conspiracies jury instruction.
Before Sanders’ pretrial counsel withdrew from representation,
he had requested a conspiracy charge that would have instructed
the jurors to acquit if they found “that the defendant was only a
member of some other conspiracy, and not a member of the
conspiracy charged in the indictment.” App. 143. At the close
of all the evidence, Sanders verbally renewed this request. The
district court denied the request, finding that the testimony did
not support the existence of other conspiracies. 4/29 PM Trial
Tr. 6. Sanders acknowledges that, at the time he made his
request, he did not identify for the court the other conspiracies
that he believed were supported by the evidence. Oral Arg.
Recording at 41:40-43:14.
A district court must, if requested, give a multiple
conspiracies instruction when the “record evidence supports the
existence of multiple conspiracies.” United States v. Graham,
83 F.3d 1466, 1472 (D.C. Cir. 1996). The factors relevant to
determining whether there was a single conspiracy rather than
multiple conspiracies include “‘whether the participants shared
a common goal, were dependent upon one another, and were
involved together in carrying out at least some parts of the
plan.’” United States v. Lopesierra-Gutierrez, 708 F.3d 193,
207 (D.C. Cir. 2013) (quoting United States v. Brockenborrugh,
575 F.3d 726, 737 (D.C. Cir. 2009)). On appeal, Sanders argues
-8-
that the record evidence supported a finding of four separate
and independent conspiracies: (1) a solely Joseph-Sanders
conspiracy, (2) a Joseph-Richardson conspiracy, (3) a Sanders-
Leak conspiracy, and (4) a conspiracy among Joseph and his
associates in Potomac Gardens.
For purposes of argument, we will assume that Sanders is
correct that the district court was required to give a multiple
conspiracies instruction in this case. We will also assume, again
for argument’s sake, that there was a variance between the
single conspiracy charged in the indictment and evidence at trial
that supported a finding of multiple conspiracies. See Berger v.
United States, 295 U.S. 78, 81 (1935); United States v. Cross,
766 F.3d 1, 5 (D.C. Cir. 2013).
Nonetheless, neither of these related (assumed) errors
warrants automatic reversal. When a district court erroneously
rejects a request for a jury instruction, the “harmless error rule
provides that any error that ‘does not affect substantial rights
must be disregarded.’” Cross, 766 F.3d at 4 (quoting FED. R.
CRIM. P. 52(a)). The same standard governs our determination
of whether a variance in proof is fatal to the defendant’s
conviction. See Berger, 295 U.S. at 82 (“The true inquiry . . . is
not whether there has been a variance in proof, but whether there
has been such a variance as to ‘affect the substantial rights’ of
the accused.”). Although Sanders advances several theories of
prejudice, we are ultimately unconvinced.
A
One type of prejudice that may arise in variance cases is the
possibility that, although the evidence showed the existence of
multiple conspiracies, it was insufficient to convict the
defendant of the conspiracy charged in the indictment. See
Cross, 766 F.3d at 5. But in this case, even assuming that the
-9-
evidence supported a finding of multiple conspiracies, it was
also “sufficient to permit the jury to find beyond any reasonable
doubt that the defendant was a member of the single conspiracy
alleged,” United States v. Thompson, 76 F.3d 442, 454 (2d Cir.
1996); see Cross, 766 F.3d at 5.
As Sanders notes, “[t]he government sought to prove the
existence of a single conspiracy, centered in Potomac Gardens
. . . and headed by Matthew Joseph.” Sanders Br. 28. The
government provided more than enough evidence for the jury to
conclude that Sanders agreed to join that conspiracy. In six
transactions over a period of three months, Sanders supplied
Joseph with significant quantities of heroin -- a total of
approximately 481 grams -- in exchange for a total of $36,350.
Because that was far more than a single person would use for his
own consumption over that period,2 the jury could reasonably
infer Sanders understood that the drugs would be redistributed
and that those subsequent sales were what generated the demand
for his product. See United States v. Childress, 58 F.3d 693, 712
n.4, 714 (D.C. Cir. 1995) (holding that the large quantity of
drugs involved supported the jury’s conclusion that defendants
knew the scope of the conspiracy); see also United States v.
Baugham, 449 F.3d 167, 171-73 (D.C. Cir. 2006); United States
v. Gaviria, 116 F.3d 1498, 1517 (D.C. Cir. 1997).
Sanders also supplied Joseph with test samples of the heroin
before requiring payment -- another fact “indicat[ing] his
comprehension that resale might have been contemplated.”
United States v. Sobamowo, 892 F.2d 90, 94 (D.C. Cir. 1989);
see Gaviria, 116 F.3d at 1517 n.20. In addition, Sanders sold six
grams of heroin to Joseph on credit, suggesting a “level of
mutual trust” consistent with a conspiracy, Baugham, 449 F.3d
2One trial exhibit suggested that a single gram of heroin could be
broken up into 40 individual servings. See App. 161.
-10-
at 173. The jury could also have interpreted Sanders’ comment
to Joseph, that Sanders had a “lot of eyes” on him, App. 213, as
a warning to Joseph about the presence of police surveillance --
another indication of shared trust. See Graham, 83 F.3d at
1471-72. Finally, a jury could have understood Sanders’
subsequent telephone conversation with Leak, in which Sanders
told Leak that Fat Mack (Joseph) “use[d] to purchase from you”
for his Potomac Gardens operation, App. 166, as evidence that
Sanders had always understood that heroin he obtained from
Leak and supplied to Joseph was being distributed in Potomac
Gardens by Joseph’s crew. Together, this evidence was more
than sufficient to permit the jury to conclude that Sanders “had
the ‘specific intent to further the . . . objective’” of the Potomac
Gardens conspiracy and therefore was a member of that
conspiracy, United States v. Gaskins, 690 F.3d 569, 577 (D.C.
Cir. 2012) (quoting Childress, 58 F.3d at 708).
Sanders’ principal challenge to this conclusion is that he did
not know the other members of the conspiracy. The Leak
conversation casts doubt on that claim, but even if it were true,
it would not be dispositive: participants in a drug-distribution
chain are generally considered coconspirators “even if they do
not all know one another, so long as each knows that his own
role in the distribution of drugs and the benefits he derives from
his participation depend on the activities of the others.”
Childress, 58 F.3d at 709-10; see Lopesierra-Gutierrez, 708
F.3d at 207 (“‘[T]here is no requirement that each conspirator
[even] know the identity of every other conspirator.’” (quoting
United States v. Jenkins, 928 F.2d 1175, 1178 (D.C. Cir.
1991))). As we have repeatedly explained:
Under the chain analysis, the government need not
prove a direct connection between all the conspirators.
A single conspiracy may be established when each
conspirator knows of the existence of the larger
-11-
conspiracy and the necessity for other participants,
even if he is ignorant of their precise identities. When
the conspirators form a chain, each is likely to know
that other conspirators are required. . . . The existence
of a chain helps us determine both the unlawful
objective and the conspirators’ intent. . . . [E]ach link
in the chain may rely upon the other links in
furtherance of the common interest. The street dealer
relies upon his supplier; the supplier relies upon his
supplier; and so on. The existence of such a vertically
integrated, loose-knit combination may raise the
inference that each conspirator has agreed with the
others (some whose specific identity may be unknown)
to further a common unlawful objective, e.g., the
distribution of narcotics.
Cross, 766 F.3d at 6 (quoting Tarantino, 846 F.3d at 1392); see,
e.g., Gaviria, 116 F.3d at 1516; Childress, 58 F.3d at 709-10. In
this case, the government presented sufficient evidence to show
that Sanders was, understood he was, and intended to be, part of
the Potomac Gardens conspiracy.
B
Sanders argues that another form of prejudice arising from
the court’s failure to provide a multiple conspiracies instruction
was the risk that the jury was not unanimous as to whether he
joined the particular conspiracy charged in the indictment.
Although some jurors might have found him liable based on the
Potomac Gardens conspiracy, Sanders speculates that others
might have found him liable for an independent Joseph-
Richardson conspiracy, an independent Sanders-Leak
conspiracy, or an independent Sanders-Joseph conspiracy. See
Sanders Br. 38.
-12-
As the government notes, the jury’s unanimous finding on
the verdict form -- that Sanders was responsible (and only
responsible) for conspiring to distribute 100 grams or more of
heroin, see infra Part IV -- makes it implausible that some jurors
found him liable for a Sanders-Leak conspiracy. Because there
was no evidence at all about the quantity of heroin that Leak
sold to Sanders, see Oral Arg. Recording at 5:48-6:06 (statement
of Sanders’ counsel), there is no reason to believe that the jury
convicted Sanders of a separate conspiracy with Leak alone. Cf.
Sanders Br. 38 (acknowledging that, “[i]f some jurors found
Sanders liable for conspiring with Leak and not Joseph, they had
no evidence to support a finding that the offense involved more
than 100 grams of heroin”). Similarly, there is no reason to
believe that the jury found Sanders liable for a separate Joseph-
Richardson conspiracy, as there was no evidence that Sanders
played any role in any Joseph-Richardson transactions (except
to the extent that all three were members of the larger Potomac
Gardens conspiracy).
That leaves only the possibility that some jurors convicted
Sanders of a conspiracy solely with Joseph, rather than the
Potomac Gardens conspiracy charged in the indictment. But
even if jurors had found a Sanders-Joseph conspiracy, that
conspiracy would merely have been a subset of the larger
charged conspiracy. And it is well settled that there is generally
no prejudice when the government proves a narrower conspiracy
that is within the scope of the conspiracy charged in the
indictment. The Supreme Court made this point in Berger v.
United States, noting that there is no fatal variance when “an
indictment charges a conspiracy involving several persons and
the proof establishes the conspiracy against some of them only.”
295 U.S. at 81. Subsequent cases have reached the same
conclusion. See United States v. Carnagie, 533 F.3d 1231, 1241
(10th Cir. 2008) (“When a narrower scheme than the one alleged
is fully included within the indictment and proved, we have
-13-
repeatedly held that a defendant’s substantial rights are not
prejudiced.”); see also United States v. Mansoori, 304 F.3d 635,
656-57 (7th Cir. 2002) (“Even if the jurors were of different
minds as to the precise parameters of the conspiracy, the
instruction required them all to agree that the defendant joined
a conspiracy that was within the ambit of the conspiracy alleged
in the indictment.”).
In this case, the court told the jury that the indictment
contained the charges against the defendant, and then went on to
read the indictment, which charged Sanders with conspiring
with the other members of the Potomac Gardens crew. 4/27
Trial Tr. 13-16. In its arguments, the government likewise only
asked the jury to convict Sanders of the Potomac Gardens
conspiracy. Indeed, as Sanders acknowledges, “[i]n both
opening and closing arguments, the government focused on ‘the
drug trafficking network operated by Matthew Joseph in and
around the area of Potomac Gardens.’” Sanders Br. 20 (quoting
4/29 PM Trial Tr. 47 (government’s closing argument), and
citing 4/27 Trial Tr. 28-40 (government’s opening argument));
see Sanders Br. 20-21 (“‘[T]he conspiracy involved distributing
large quantities of heroin and other drugs in Potomac Gardens.’”
(quoting 4/29 PM Trial Tr. 49 (government’s closing
argument))). It is more than reasonable to conclude that the jury
focused its attention on the conspiracy that the court and the
government said was at issue. The government has therefore
carried its burden of demonstrating that prejudice with respect
to a non-unanimous jury did not result from the (assumed) error.
Simpson, 430 F.3d at 1184.
C
Finally, other forms of prejudice that may stem from a
variance between the charged conspiracy and the evidence
proven at trial were also absent in this case. First, Sanders had
-14-
ample notice of the scope of the evidence that would be used
against him at trial. All of the relevant conspirators were named
in the indictment, and the government disclosed all of the
recorded telephone calls before trial. See Cross, 766 F.3d at 7
(noting that “there rarely (if ever) will be [a notice problem] if
the trial proof ‘supports only a significantly narrower and more
limited’ charge than that stated in the indictment” (quoting
United States v. Miller, 471 U.S. 130, 131 (1985))). Second, the
risk of “transference of guilt from one [defendant] to another
across the line separating conspiracies,” Kotteakos v. United
States, 328 U.S. 750, 774 (1946), was minimal. Sanders was
tried alone, and much of the evidence against him consisted of
his own words on the wiretaps. See Cross, 766 F.3d at 7-8 &
n.4; United States v. Mathis, 216 F.3d 18, 25 (D.C. Cir. 2000);
see also Gaviria, 116 F.3d at 1533.3
***
In sum, even assuming that the district court erred in failing
to give a multiple conspiracies instruction, the error did not
prejudice Sanders and does not warrant reversal.
IV
Sanders also challenges the district court’s instructions on
drug quantity, as well as its response to a note from the jury
regarding the verdict form. Sanders did not object to either at
trial. We therefore review the court’s statements for plain error
only.
The district court initially charged the jury that:
3
Sanders contends that various other pieces of evidence created
prejudicial spillover. We have considered that evidence and conclude
that the contention is without merit.
-15-
[T]he specific amount of any controlled substance
involved is not an element of the offense of conspiracy.
So first you have to determine the conspiracy.
However, if you find the defendant guilty of the
offense of conspiracy to distribute or possess with
intent to distribute a controlled substance as charged in
the indictment, you must then determine whether the
government has proved the quantity of the controlled
substance was[:] . . . a detectable amount of cocaine; or
50 grams or more of . . . cocaine base, that is crack; or
100 grams or more of . . . heroin.
4/29 Trial Tr. 37-38. As this court has previously noted, 21
U.S.C. § 841, the federal drug distribution offense, “‘is a
tripartite statute that [effectively] establishes separate offenses
based on drug quantity” and type. United States v. Gibson, 353
F.3d 21, 29 (D.C. Cir. 2003) (citing United States v. Webb, 255
F.3d 890, 898 (D.C. Cir. 2001)). “[D]rug quantity is an element
of the offense under § 841(b)(1)(A) and (b)(1)(B) and must be
submitted to the jury.” Gibson, 353 F.3d at 29. It is not,
however, an element of the base offense of distributing a
controlled substance, 21 U.S.C. § 841(b)(1)(C), or of conspiring
to do so, id. § 846. See Webb, 255 F.3d at 897.
Consistent with the jury instruction, the district court
provided a verdict form that first asked the jury to indicate
whether it found Sanders guilty or not guilty of the base charge
of conspiracy to distribute and possess with intent to distribute
a controlled substance -- “Cocaine, or Cocaine Base, also known
as Crack, or Heroin.” App. 277. “If you find Mr. Sanders ‘not
guilty’” of that charge, the form went on, “then your
deliberations are complete.” Id. “If, however, you find Mr.
Sanders ‘guilty’ of [that charge], then you must determine
. . . whether the government has proven beyond a reasonable
-16-
doubt” that the conspiracy involved Sanders’ agreement to
distribute or possess with intent to distribute one or more of the
following: (i) a detectable amount of cocaine; (ii) 50 grams or
more of crack cocaine; or (iii) 100 grams or more of heroin.
App. 277. On page 2 of the form, the jury was given yes or no
options for each of those three. App. 278.
After deliberations began, the jurors sent the district court
a note asking whether, if they found Sanders guilty of
conspiracy, they also had to “answer yes to at least 1 of the
questions on page 2 of the verdict form.” App. 274. The district
court discussed the note with Sanders and the prosecutor.
Sanders pointed the court to the paragraph in the initial
instructions stating that a specific amount of drugs is not an
element of the conspiracy offense. See 5/3 Trial Tr. 9. The
court then summoned the jury and responded to its question as
we will soon describe.
At bottom, Sanders complains that the district court’s
response left “the jury unsure as to whether a complete verdict
required answering ‘yes’ to at least one of the identified drug
quantities.” Sanders Br. 59. The verdict form -- by providing
yes or no options for each of the identified quantities -- made it
clear that the jury did not have to answer “yes” to complete the
verdict. And we do not think that the court’s response to the
jury’s note muddied the waters.
First, the district court reminded the jurors that, as it had
told them in its initial instructions, “the specific amount of any
controlled substance involved is not an element of the offense of
conspiracy. ” 5/3 Trial Tr. 11. Only “if you find the defendant
guilty of the offense of conspiracy to distribute . . . a controlled
substance,” the court said, “must [you] then determine whether
the government has proved the quantity of controlled
substance.” Id. at 12 (emphasis added); see id. at 13. “And
-17-
then,” the court continued, “you answer yes or no on the
[second] page, and if you cannot agree, then you cannot agree on
that part of the verdict.” Id. at 13 (emphasis added). Finally, the
court told the jury that its verdict as to each quantity had to be
unanimous: “[T]o answer yes or no to any one of [the
quantities,] you have to have a unanimous verdict.” Id.
(emphasis added). This response clearly and accurately
reiterated the earlier instructions and did not confuse the jury.
V
In this Part, we address a number of Sanders’ miscellaneous
claims of error that he did not raise in the district court.
Although he attempts to trace these claims to the absence of the
multiple conspiracies jury instruction that he did request in that
court, see supra Part III, we are unable to connect the dots. We
therefore briefly review them as stand-alone claims subject to
plain error review.
A
In addition to failing to give the multiple conspiracies
instruction, Sanders maintains that the district court erred in
failing to give two additional conspiracy-related instructions that
he did not request. First, he objects that the district court’s
instructions did not adequately define the crime of conspiracy.
He recognizes, however, that the instructions were consistent
with circuit precedent describing the elements of conspiracy.
See Sanders Reply Br. 21 (acknowledging consistency with
descriptions in Graham, 83 F.3d at 1471, and United States v.
Lam Kwong-Wah, 924 F.2d 298, 303 (D.C. Cir. 1991)). The
fact that the district court did not sua sponte “adopt[] a more
-18-
comprehensive set of elements for showing drug conspiracy,”
Sanders Br. 36, did not constitute plain error.4
Second, Sanders contends that the district court should have
instructed the jury that a simple buyer-seller relationship alone
does not constitute a conspiracy.5 Although such an instruction
would have added clarity to the general conspiracy instruction,
the government would then have been entitled to a further
instruction that a buyer-seller relationship, combined with other
evidence, can prove knowing participation in a conspiracy, see
United States v. White, 116 F.3d 903, 928 n.11 (D.C. Cir. 1997)
(citing United States v. Baylor, 97 F.3d 542, 547 (D.C. Cir.
1996)). That is, a jury may properly find a conspiracy, rather
than a buy-sell agreement, “where the evidence shows that a
buyer procured [or a seller sold] drugs with knowledge of the
overall existence of the conspiracy.” United States v. Thomas,
114 F.3d 228, 241 (D.C. Cir. 1997). Among the factors
demonstrating such knowledge are the existence of repeated,
regular deals; drug quantities consistent with redistribution; and
the extension of credit to the buyer. See Cross, 766 F.3d at 4;
4
Sanders argues that this issue should not be reviewed for plain
error because his counsel had proposed a conspiracy charge with more
elements than the district court listed. See Sanders Reply Br. 22 n.4.
But the additional element that he proposed is not the one he argues
for here. Compare App. 140 (proposed charge), with Sanders Br. 36-
37 (citing Third Circuit and Tenth Circuit definitions of conspiracy,
but not indicating which he would prefer).
5
Although he acknowledges that he did not request such an
instruction, Sanders contends that, “had the district court recognized
the need” for the multiple conspiracies instruction that he did request,
“it would have understood that a ‘buy/sell’ one was also required.”
Sanders Br. 43. Sanders offers no support for this contention, and it
does not suffice to change the standard of review from plain to
harmless error.
-19-
Baugham, 449 F.3d at 171-72; Baylor, 97 F.3d at 547; see also
United States v. Medina, 944 F.2d 60, 65-66 (2d Cir. 1991)
(stating that the “rationale for holding a buyer and a seller not to
be conspirators” does not apply when “there is advanced
planning among the alleged co-conspirators to deal in wholesale
quantities of drugs obviously not intended for personal use”).
As we set out in Part I and discussed in Part III, all of these
factors were present in this case. As a consequence, Sanders has
not satisfied his burden of showing that the absence of a buyer-
seller instruction “affected the outcome of the district court
proceedings,” Simpson, 430 F.3d at 1183-84 (quoting Olano,
507 U.S. at 734). See United States v. Hoyte, 330 F. App’x 248,
250 (2d Cir. 2009) (holding that “[n]o plain error can be found”
in the failure to give a buyer-seller instruction where “the
government presented ample evidence beyond a mere buyer-
seller relationship and demonstrated that defendant engaged in
more than a single transaction”).
B
Sanders also contends that the court erred in sending back
to the jury a compact disc that contained some unplayed
recordings of wiretapped telephone calls “not in evidence.”
Sanders Br. 48. But there was no such error. The parties had
entered into a stipulation permitting all of the calls to be
admitted into evidence subject to subsequent, specific objections
about particular calls. 4/27 Trial Tr. 100-07. And Sanders
never raised any objections at all.
C
Finally, we reject Sanders’ contention that plain error arose
during each side’s closing arguments to the jury.
-20-
Sanders claims that the trial court improperly prevented him
from arguing that he made “little money from the drug trade,”
which he maintains “was relevant to whether he was involved in
a conspiracy with Joseph.” Sanders Br. 52. But the court did
not improperly limit him. The court permitted Sanders to
remind the jury of a photograph of the search of his house,
showing that he slept on a cot between the living room and
dining room. It stopped him only when he began arguing that
the house belonged to his family rather than to him, and that
they let him stay there without paying rent -- a point, he said,
that “was part of the case on the search and seizure.” 4/29 PM
Trial Tr. 79. The court properly cut this argument off, both
because the validity of the search was “not an issue” at the trial,
and because there was “no evidence” regarding the nonpayment
of rent. Id.; see Childress, 58 F.3d at 715 (holding that a party
may not use closing arguments to “argue facts not in evidence”).
Nor did the prosecutor plainly err in arguing that one of
Sanders’ sales of a large quantity of heroin to Joseph “by itself”
established Sanders’ participation in the conspiracy, 4/29 PM
Trial Tr. 51. Even if Sanders is correct that a single sale would
be insufficient to establish a conspiracy, he challenges only a
single reference in the prosecutor’s closing argument. The
remainder of that argument called the jury’s attention to the
myriad of other evidence that showed Sanders’ involvement in
the conspiracy, and stressed the fact that he sold Joseph heroin
on six different occasions. See, e.g., id. at 53-57. We do not
believe that the prosecutor’s single statement affected the
outcome of the trial. See Williams, 773 F.3d at 107.6
6
Sanders raises a number of additional miscellaneous arguments
or variants of the arguments discussed in the text. We have concluded
that they are without merit and do not warrant further discussion.
-21-
VI
For the foregoing reasons, the judgment of the district court
is
Affirmed.