United States v. Marshall

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 3 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 97-2172
v. (D.C. No. CR-96-220-JC)
BRYANT L. MARSHALL, (D. New Mex.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before ANDERSON, McKAY, and EBEL, Circuit Judges.
Defendant Bryant Marshall was convicted of conspiracy to possess with
intent to distribute methamphetamine and aiding and abetting and possession with
intent to distribute methamphetamine. In this appeal, he claims that the evidence
was insufficient to support either of his convictions.
On June 18, 1996, Defendant, along with ten co-defendants, was indicted in
a superseding indictment on two counts arising from drug trafficking activities in
California and New Mexico. Count I charged conspiracy to possess with intent to
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
distribute one kilogram and more of a substance containing methamphetamine and
aiding and abetting in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2, and it
named as defendants Mr. Marshall and Joe Altamirano, Kenneth Brown, Michael
Clark, Alfred Ellick, Ulysses Harper, Christopher Lee, Burch Woody McCoy,
Mary Sanchez, Ricardo Vera, and Melanie Young. Count II charged Defendant
and Mr. Ellick, Mr. Lee, and Ms. Young with possession with intent to distribute
100 grams and more of a substance containing methamphetamine on April 4,
1996, and aiding and abetting in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B)
and 18 U.S.C. § 2. Defendant was tried with Mr. Altamirano, Mr. Ellick, Mr.
Harper, and Mr. McCoy. 1 On January 31, 1997, a jury convicted Defendant on
both counts. Defendant was sentenced to 240 months’ imprisonment for Count I
and 151 months’ imprisonment for Count II, to run concurrently, and terms of
supervised release.
Defendant’s convictions stem from his participation in a methamphetamine
distribution ring in Roswell, New Mexico, in 1995 and 1996. 2 According to
1
The record indicates that Mr. Brown, Mr. Clark, and Ms. Young testified
at trial pursuant to plea agreements and that, at the time of trial, Mr. Lee and Ms.
Sanchez were fugitives. Mr. Vera pled guilty to Counts I and III of the
Superseding Indictment but did not testify at trial.
2
A detailed explanation of the underlying facts is set out in a companion
case, United States v. Harper, No. 97-2153, 1998 WL 794972 (10th Cir. Nov. 16,
1998). For the purposes of this case, we recite only the facts in the conspiracy
directly relating to Defendant.
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testimony at trial, the Drug Enforcement Agency began receiving information in
late 1994 or early 1995 about a possible methamphetamine distribution ring in
Roswell, New Mexico. Defendant testified that in June 1995, he drove Mr. Lee
and Mr. Harper to the train station in Albuquerque, New Mexico. On June 14,
1995, codefendants Mr. Lee and Mr. Harper were arrested for possession of five
pounds of methamphetamine before they boarded an Amtrak train headed back to
New Mexico. In April 1996, Federal Express employees seized a package
containing one pound, or 454 grams, of methamphetamine which was addressed to
co-defendant Ms. Melanie Young in Alamogordo, New Mexico. On April 4,
1996, DEA agents executed a controlled delivery of the package to Ms. Young’s
residence. After completing the delivery, the agents executed a search warrant on
the property and arrested Defendant and Ms. Young. In addition to recovering the
one-pound package of methamphetamine, agents also seized a pistol belonging to
Defendant, a book containing phone numbers for Mr. Lee and Defendant, a piece
of paper with Mr. Vera’s phone number, and photographs of Mr. Harper and Mr.
Lee. Following the controlled delivery, DEA agents interviewed Mr. Lee and
secured his cooperation to ferret out the other members of the conspiracy
including Mr. Altamirano, Mr. Ellick, Mr. Harper, Mr. Vera, Mr. Brown, and Ms.
Sanchez.
Defendant contends that the evidence was insufficient to show that he
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possessed methamphetamine with intent to distribute and that he was a member of
the conspiracy charged in the indictment. We review the sufficiency of the
evidence de novo, viewing both direct and circumstantial evidence and the
inferences therefrom in a light most favorable to the government to determine if a
reasonable jury could find beyond a reasonable doubt that the defendant was
guilty. See United States v. Voss, 82 F.3d 1521, 1524-25 (10th Cir.), cert.
denied, U.S. , 117 S. Ct. 226 (1996). In conducting our review, “‘we may
neither weigh conflicting evidence nor consider the credibility of witnesses.’”
United States v. Pappert, 112 F.3d 1073, 1077 (10th Cir. 1997) (citation omitted).
To obtain a conviction for possession of narcotics with intent to distribute,
the government must establish beyond a reasonable doubt that the defendant
knowingly possessed the illegal drug with the specific intent to distribute it. See
United States v. Carter, 130 F.3d 1432, 1440 (10th Cir. 1997), cert. denied,
U.S. , 118 S. Ct. 1856 (1998). Possession may be actual or constructive. See
id. at 1441. To establish constructive possession, the government must present
evidence, either direct or circumstantial, that the defendant “knowingly holds the
power and ability to exercise dominion and control over the property.” Id. In
short, the government must establish a sufficient nexus between the defendant and
the drug, but constructive possession may be joint among several individuals. See
id.
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Defendant asserts that his presence at Ms. Young’s house during the
controlled delivery is insufficient to establish constructive possession and that the
evidence does not support actual possession. However, after reviewing the
record, we conclude that the evidence sufficiently demonstrates Defendant’s
actual or constructive possession. As noted above, possession with intent to
distribute methamphetamine was the contemplated crime of the conspiracy.
Therefore, Defendant “‘is deemed to possess the [methamphetamine] through his
co-conspirators’ possession.’” Carter, 130 F.3d at 1441 (quoting United States v.
Medina, 887 F.2d 528, 532 (5th Cir. 1989)). Because at least one of Defendant’s
co-conspirators, Mr. Lee, undoubtedly had actual possession of the one-pound
methamphetamine package with intent to distribute it, Defendant is deemed to
have had actual possession of it.
Further, circumstantial evidence indicates that Defendant constructively
possessed the methamphetamine. He was present for the controlled delivery and,
according to Ms. Young’s testimony, was going to receive the package once it
arrived. Ms. Young testified that Defendant stated that the package was “their
package,” referring to himself and Mr. Lee. R., Trial Tr. IV at 336. Ms. Young
also testified that Defendant was to sign for the package if she was not home
when it was delivered. Additionally, a narcotics police officer testified that
Defendant attempted to flee the trailer when law enforcement personnel arrived.
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In light of this testimony and evidence that Defendant possessed a firearm at the
time of the controlled delivery, the jury could reasonably infer Defendant’s nexus
to the package of methamphetamine. Viewed collectively and in the light most
favorable to the government, the evidence is sufficient to support an inference
that Defendant at least had joint constructive possession of the methamphetamine
delivered to Ms. Young’s trailer. We therefore affirm the jury’s verdict on the
possession count.
Turning now to the conspiracy charge, Defendant does not dispute that the
government established the existence of a conspiracy to distribute large amounts
of methamphetamine; he merely claims that the government has failed to prove
that he joined the conspiracy. In order to prove that a defendant is guilty of
conspiracy under 21 U.S.C. § 846, the government bears the burden of showing
the following elements: (1) the defendant agreed with at least one other person to
violate the law; (2) he knew the essential objectives of the conspiracy; (3) he
knowingly and voluntarily became involved; and (4) the alleged co-conspirators
were interdependent. See Carter, 130 F.3d at 1439; United States v. Edwards, 69
F.3d 419, 430 (10th Cir. 1995), cert. denied sub nom. Chaplin v. United States,
517 U.S. 1243 (1996).
We repeatedly have confirmed that a jury may infer an agreement to
conspire “‘from the acts of the parties and other circumstantial evidence
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indicating concert of action for the accomplishment of a common purpose.’”
Carter, 130 F.3d at 1439 (quoting United States v. Johnson, 42 F.3d 1312, 1319
(10th Cir. 1994), cert. denied, 514 U.S. 1055 (1995)); see also United States v.
Bell, 154 F.3d 1205, 1208 (10th Cir. 1998); United States v. Johnston, 146 F.3d
785, 789 (10th Cir. 1998). Thus, the government need not provide direct
evidence of an agreement. See Bell, 154 F.3d at 1208. However, to demonstrate
that the defendant entered into an agreement, the government must show more
than mere association with the alleged co-conspirators. See United States v.
Evans, 970 F.2d 663, 669 (10th Cir. 1992), cert. denied, 507 U.S. 922 (1993).
In this case, Defendant’s agreement to participate in the conspiracy may be
inferred from his actions and from trial testimony. Defendant testified that he
agreed to drive his good friend, Mr. Harper, and Mr. Lee to the Amtrak station for
their trip to California. Mr. Harper and Mr. Lee subsequently were arrested in
California for possession of five pounds of methamphetamine. Mr. Clark testified
that he knew Defendant, Mr. Ellick, Mr. Lee, and Mr. Harper through Mr. Vera
and that he knew Mr. Vera sold them drugs and referred to them as “big money.”
R., Trial Tr. IV at 408-09. Mr. Baxter Jones, testifying pursuant to a separate
indictment and plea agreement, stated that Defendant and Mr. Lee were “drug
partners,” id. at 252, that Defendant transported drugs for Mr. Lee and was his
“flunky,” id. at 257, and that Defendant “was just always there, always around”
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when Mr. Jones dealt with Mr. Harper. Id. at 256-57. Ms. Young testified that
she delivered two ounces of methamphetamine from Mr. Lee to Defendant and
that Defendant supplied her with methamphetamine. Mr. Jones partially
corroborated this testimony when he stated that Ms. Young told him that she had
two ounces of methamphetamine to deliver to Defendant from Mr. Lee but that
Defendant never picked it up. As noted above, Ms. Young also testified that
Defendant was supposed to receive the package that was delivered to her trailer
on April 4, 1996. In response to Defendant’s arguments that much of the above
testimony is incredible, uncorroborated accomplice testimony, we remind
Defendant that accomplice testimony is admissible even if it is uncorroborated.
See United States v. Sloan, 65 F.3d 861, 863 (10th Cir. 1995), cert. denied, 516
U.S. 1097 (1996); United States v. McGuire, 27 F.3d 457, 462 (10th Cir. 1994).
Further, although we address tangentially the question of the credibility of
accomplice testimony here, we will not otherwise consider on appeal arguments
pertaining to the credibility of witnesses. See Pappert, 112 F.3d at 1077. Taking
all inferences in the light most favorable to the government, the circumstantial
evidence is sufficient to support the jury’s finding beyond a reasonable doubt that
Defendant agreed to the conspiracy’s objective of possessing methamphetamine
with intent to distribute.
To show knowing and voluntary involvement in the conspiracy, the
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government must demonstrate that the defendant had a general awareness of both
the scope and the objective of the conspiracy. See Evans, 970 F.2d at 669-70. In
conspiracy cases, a “‘defendant’s guilty knowledge and voluntary participation
may be inferred from surrounding circumstances.’” Carter, 130 F.3d at 1440
(quoting United States v. Christian, 786 F.2d 203, 211 (6th Cir. 1986)). This
means that “‘the jury may presume that a defendant is a knowing participant in
the conspiracy when he acts in furtherance of the objective of the conspiracy.’”
Johnston, 146 F.3d at 789 (quoting Johnson, 42 F.3d at 1319). “The defendant’s
participation in or connection to the conspiracy need only be slight, so long as
sufficient evidence exists to establish the defendant’s participation beyond a
reasonable doubt.” Id.
As noted above, Defendant does not challenge the existence of a conspiracy
to distribute methamphetamine. Rather, his position is that he did not knowingly
and voluntarily enter the conspiracy charged in the indictment and that the
evidence shows, at most, a buyer-seller relationship. He argues that none of the
witnesses testified that they saw him handling methamphetamine on the scale
alleged in the indictment and that there is no evidence creating an affirmative link
between him and the distribution of methamphetamine. The record supports the
jury’s finding to the contrary.
Defendant’s knowing and voluntary involvement in the conspiracy can be
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inferred from his participation in his co-defendants’ June 1995 trip to California.
He testified that he willingly drove Mr. Harper and Mr. Lee to the Amtrak station
in June 1995. The jurors could reasonably infer from the nature of the trip that its
sole purpose was to obtain or distribute methamphetamine and that Defendant’s
participation by driving Mr. Lee and Mr. Harper to the station evidenced more
than mere proximity to illegal activity. Additionally, jurors could infer
Defendant’s knowing participation in the conspiracy from his presence at Ms.
Young’s residence when the controlled delivery was made and his subsequent
attempt to flee the residence upon the arrival of law enforcement personnel. Mr.
Clark’s testimony that he knew Mr. Vera sold drugs to Defendant, Mr. Ellick, Mr.
Lee, and Mr. Harper and referred to them as “big money,” R., Trial Tr. IV at 408-
09, also supports an inference of knowing participation. Trial testimony also
indicates that two wire transfers to Mr. Vera were made in Defendant’s name, that
Defendant rented a hotel room in California in the vicinity of the drug purchases,
and that a phone call was made from that room to Mr. Ellick in New Mexico.
Viewing all of this evidence, and the testimony of Mr. Jones and Ms. Young to
which we previously referred, in the light most favorable to the government, we
hold that the jury’s conclusions that Defendant knew that the central objective of
the conspiracy was the distribution of methamphetamine and that he was a
voluntary and knowing participant were reasonable.
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Finally, the government must produce sufficient evidence of “‘the essential
element of interdependence’ among the co-conspirators.” United States v. Fox,
902 F.2d 1508, 1514 (10th Cir.) (quoting United States v. Dickey, 736 F.2d 571,
582 (10th Cir. 1984), cert. denied sub nom. Beasley v. United States, 469 U.S.
1188 (1985)), cert. denied, 498 U.S. 874 (1990). Interdependence exists where
“each co-conspirator[‘s] activities ‘constituted essential and integral steps toward
the realization of a common, illicit goal.’” Edwards, 69 F.3d at 431 (quoting Fox,
902 F.2d at 1514 (citation omitted)). “[T]he government need not show that the
“[c]oconspirators . . . know the identities or details of each scheme or have
connections with all other members of the conspiracy.’” Id. (quoting United
States v. Roberts, 14 F.3d 502, 511 (10th Cir. 1993)).
Much of the record evidence described above supports a finding of
interdependence. For example, jurors could reasonably infer interdependence
from Defendant’s participation in the June 1995 trip to California, from the wire
transfers in Defendant’s name to Mr. Vera in California, from Mr. Jones’
testimony concerning Defendant’s role and relationship with Mr. Lee and Mr.
Harper, from Mr. Clark’s testimony describing Mr. Vera’s relationship with
Defendant and other co-defendants, and from the papers found at Ms. Young’s
residence on which Mr. Vera’s, Mr. Lee’s and Defendant’s phone numbers were
written. We conclude that the evidence is sufficient to support an inference that
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the co-conspirators were interdependent.
Accordingly, we hold that the jury could reasonably infer from this
evidence that Defendant willfully joined the conspiracy and took actions to aid
the possession and distribution of the methamphetamine. Admittedly, the
evidence against Defendant is not as strong as that against some of his co-
defendants, but it is nevertheless sufficient to establish his participation in the
conspiracy beyond a reasonable doubt.
In conclusion, we affirm Defendant’s convictions on both counts.
AFFIRMED.
Entered for the Court
Monroe G. McKay
Circuit Judge
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