United States v. Harper

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 16 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee No. 97-2153
v. D. New Mexico
ULYSSES HARPER, also known as (D.C. No. CR-96-220-JC)
Larris Jeroy Slayton
Defendant - Appellant.
ORDER AND JUDGMENT *
Before ANDERSON, MCKAY, and EBEL, Circuit Judges.
Ulysses Harper appeals his conviction for conspiracy to possess
methamphetamine with intent to distribute and aiding and abetting, violations of
21 U.S.C. § 846 and 18 U.S.C. § 2. Harper argues that there was insufficient
proof of his involvement in the conspiracy charged in the indictment. He also
argues that evidence of prior bad acts was improperly introduced at trial, and that
*
This order and judgment is not binding precedent, except under the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
he was improperly refused a jury instruction on his claim that he withdrew from
the conspiracy. We reject each of Harper’s claims and affirm his conviction.
I. BACKGROUND
Harper’s conviction stems from drug trafficking activities in California and
New Mexico. He was indicted for conspiracy and aiding and abetting along with
ten codefendants: Christopher Lee, Alfred Ellick, Bryant Marshall, Melanie
Young, Ricardo Vera, Michael Clark, Joe Altamirano, Mary Sanchez, Burch
Woody McCoy, and Kenneth Brown. Harper, Ellick, Marshall, McCoy, and
Altamirano were tried together; at trial, Clark, Young, and Brown testified for the
government pursuant to plea agreements. At the time of trial, Lee and Sanchez
were fugitives.
Evidence at trial showed that in late 1994 or early 1995, the Drug
Enforcement Agency (DEA) began receiving information about a possible
methamphetamine distribution ring in Roswell, New Mexico. Through a series of
tips and cooperative law enforcement efforts, Christopher Lee and Harper were
apprehended in San Bernardino, California on June 14, 1995, as they prepared to
take an Amtrak train to Albuquerque. They identified themselves as Christopher
Lee and Larris Slaton (one of Harper’s aliases). After initial questioning, officers
obtained Lee and Harper’s consent to search their persons and luggage.
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In their search of Harper and his luggage the officers discovered a gift-
wrapped package containing five pounds of methamphetamine. (Harper’s
fingerprint was later found on the package.) They also found a handgun, a
“pay/owe” accounting sheet, $4,800 in cash, and a black address book. Lee and
Harper each had a canister of pepper spray. Lee’s luggage contained a roll of
film showing pictures of Lee and Harper. Harper’s address book listed Ellick’s
phone number next to the initials “A.J.”
Further investigation revealed that on this trip Harper rented a hotel room
using an identification card issued to him with the address of 83 Holman in
Roswell, New Mexico–Ellick’s residence. Baxter Jones (under separate
indictment) testified under a plea agreement that he and Ellick were to receive
some of the confiscated methamphetamine. Michael Clark testified that Ricardo
Vera told him about the loss of the drugs. Bryant Marshall testified that he drove
Lee and Harper to the train station in Albuquerque for the first leg of the trip.
Lee and Harper were arrested and then released from custody. Harper went
to Las Vegas and set up residence there. In September 1995, Harper was arrested
on an unrelated charge and remained in custody in Arizona on this unrelated
matter until August 5, 1996, at which time he was arraigned on the present charge
pursuant to a writ of habeas corpus ad prosequendum.
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Evidence at trial showed that during Harper’s incarceration in Arizona,
investigators uncovered the methamphetamine distribution activities of several
people with whom Harper had been involved. In April 1996, Federal Express
employees in Memphis, Tennessee intercepted one pound of methamphetamine in
a package addressed to Melanie Young, a former girlfriend of Harper’s, in
Alamogordo, New Mexico. It had been mailed by “C.Y. Rodriquez” from “Mail
Plus” in Ontario, California. Vera lived in Ontario. On April 4, 1996, a DEA
agent posing as a Federal Express employee delivered the package while other
agents surveilled the residence. Young signed for the package and the undercover
agent left. Then the other agents surrounded and searched the house pursuant to a
warrant. Lee and Marshall were also at the residence and unsuccessfully tried to
flee. Evidence recovered from the residence included the package, a pistol, a
book containing phone numbers for Marshall and Lee, a slip of paper with the
name “C.Y. Rodriquez” and the phone number of Vera, and photographs of
Harper and Lee. Officers also found two letters from Harper to Young, sent from
jail in Arizona, dated February and March 1996.
After the events at Young’s residence, DEA agents interviewed Christopher
Lee. Lee cooperated with the agents and on May 1, 1996, he gave his pager to
Agent Steven Woodson. Later that day, Woodson received pages from Vera and
Altamirano. Woodson then began posing as one of Lee’s distributors. He spoke
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with Vera by telephone and arranged a methamphetamine purchase. DEA agents
wired over $2,000 to Vera and Clark, and Clark delivered six ounces of
methamphetamine to undercover DEA agents in Roswell, New Mexico on June 6,
1996.
After receiving Altamirano’s page, Agent Woodson called him to arrange
an undercover drug purchase. Altamirano asked agents to wire money to him (in
Burch Woody McCoy’s name) in Ontario, California, as a show of good faith.
They wired at least $900, and Altamirano confirmed receipt of the money,
promising a delivery in Albuquerque, where Altamirano claimed to have other
distributors. On June 14, 1996, Altamirano, Brown, Sanchez, and McCoy met
with Woodson and other DEA agents in Albuquerque, and delivered
methamphetamine in exchange for $2000. All four were then arrested.
In the meantime, on May 30, 1996, DEA agents and other law enforcement
officers executed a search warrant at Ellick’s residence in Roswell. During the
search, Ellick spoke with Agent Steven Woodson for about an hour. According to
Woodson’s testimony, Ellick admitted to being involved with Christopher Lee and
others in the distribution of methamphetamine. He told Woodson he had traveled
four or five times between California and Roswell delivering methamphetamine.
Officers executing the search warrant found physical evidence of drug
trafficking. They found a handwritten transaction record detailing exchanges of
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“grams” placed in “bags” for dollar amounts, involving “Mr. E,” “Mr. P,” and
“Marshall.” (Christopher Lee used “Pimp” as a nickname.) For example, “In
California, Mr. E. gave Mr. P. $1,000 in $100 bills for the balance of Monday,
January 15, 1996, pickup of 12 grams.” Trial Transcript (Tr.) at 355. One entry
denotes a $3,400 transfer from “Mr. E” to “Mr. P.” Id. Officers obtained
telephone records for Ellick’s residence documenting phone calls to Ricardo
Vera’s pager, as well as a $3,240 cellular telephone bill. They also found a
handgun.
These officers also uncovered evidence linking Harper to Ellick. They
found a receipt in the name of Larris Slaton (one of Harper’s aliases), as well as a
photograph of Harper matching one found in Young’s residence. They found a
handwritten letter from Ellick to a state judge on behalf of Harper, stating
“Ulysses has lived with me and my family for the last four years. He has been a
positive influence on us all.” Tr. at 352. They also found a piece of paper with
Harper’s Arizona jail address.
At trial the government presented other evidence linking Harper to the
activities of his codefendants, both before and during his incarceration. There was
evidence of a wire transfer of $899 from Lee to Harper in December 1994, as well
as transfers from Ellick to Vera, Marshall to Vera, and Vera to Altamirano. Some
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of these transfers were sent from or received at the address of 83 Holman in
Roswell, New Mexico–the same address found on Harper’s ID card.
There was also testimony from Clark, testifying under a plea agreement,
that he knew Harper as one of a number of people who had traveled to California
and stayed at Vera’s home in Ontario, people to whom Vera sold drugs, whom
Vera called “big money.” Tr. at 409. Clark testified that these people included
not only Harper but Lee, Ellick, and Marshall. He testified that Altamirano and
Vera worked together selling drugs. He testified that after Vera and Altamirano
had a fist fight over a drug deal, Vera said that he would be glad when Harper got
out of jail “because [Harper] didn’t do business like that.” Tr. at 413.
The government presented a letter from Harper to Lee dated January 20,
1996, sent from jail in Arizona. The letter said, “I want you to send that money to
Melanie as soon as you can get this,” and gave Young’s address in Alamogordo.
“Thank you, Boy. You don’t know how glad I am to hear from you and to know
that you are taking carry [sic] of my affairs.” Tr. at 579. In his letters to Young,
Harper stated that he would no longer be selling drugs, and repeatedly told Young
to stay away from drugs.
Baxter Jones (under separate indictment) testified under a plea agreement
that Young introduced him to Harper “[b]ecause she knew we both sold drugs,
and she thought it would be making a connection.” Tr. at 251-52. He described
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Harper as the “brains of the group,” Tr. at 260, and Harper and Lee as “drug
partners,” Tr. at 252. He identified Harper as one of his sources of
methamphetamine for resale, and stated that he and Harper had discussed the loss
of methamphetamine in San Bernardino.
Melanie Young testified pursuant to a plea agreement that Harper had
introduced her to Lee, that Harper and Lee dealt drugs, and that Harper told Lee
to give her some money. She related that Marshall had visited Harper in jail in
Arizona. She stated that she had taken Harper’s address book from Marshall’s
house.
Young also testified that she had gone to California in 1994 to pick up 27
ounces of rock cocaine, and that she was supposed to deliver the cocaine to
Harper, but that someone broke into her motel room, choked her, put a gun to her
head, and took the cocaine. In closing statements the prosecutor argued this
evidence to the jury, stating of Harper, “he didn’t mind sending her [Young] to
California with a load of drugs where she got beat up and pistol whipped.” Tr. at
887.
At the close of trial, Harper’s attorney submitted a jury instruction on his
claim that he withdrew from the conspiracy, and the government also sought to
submit such an instruction. The court determined that there was “not enough
evidence of a withdrawal from the conspiracy to go to the jury.” Tr. at 802.
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However, upon request the court allowed Harper’s attorney to argue withdrawal to
the jury.
The jury found Harper guilty of conspiracy and he was later sentenced to
210 months imprisonment.
II. DISCUSSION
A. Sufficiency of the Evidence
Harper appeals the district court's denial of his motion for a judgment of
acquittal for insufficiency of the evidence. In considering this claim, we review
the record de novo, United States v. Chavez-Palacios, 30 F.3d 1290, 1294 (10th
Cir. 1994), viewing "the direct and circumstantial evidence, along with reasonable
inferences therefrom, . . . in a light most favorable to the government," United
States v. Mains, 33 F.3d 1222, 1227 (10th Cir. 1994). We will uphold the denial
of a motion for acquittal based on insufficiency of the evidence if “any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Harper argues that there was insufficient evidence to show that he
conspired to possess the five pounds of methamphetamine he was carrying when
he was arrested. In the alternative, he argues that even if he conspired with Mr.
Lee, he did not conspire with any of the other defendants because his activities
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were not interdependent with theirs. The elements of conspiracy are “(1)
agreement with another person to violate the law; (2) knowledge of the essential
objectives of the conspiracy; (3) knowing and voluntary involvement; and (4)
interdependence among the alleged coconspirators.” United States v. Edwards, 69
F.3d 419, 430 (10th Cir. 1995). The government need not provide direct evidence
of agreement, because “a jury may infer an agreement constituting a conspiracy
from the acts of the parties and other circumstantial evidence indicating concert
of action for the accomplishment of a common purpose.” United States v. Bell,
154 F.3d 1205, 1208 (10th Cir. 1998).
There is abundant evidence that, at the very least, Harper conspired with
Lee to possess and distribute the five pounds in his luggage. They were arrested
together in a train station, traveling together on a route identified by the DEA as a
possible drug distribution route. Each was carrying a canister of pepper spray.
Baxter Jones testified that the two were “drug partners,” that they had supplied
him with between four and ten pounds of methamphetamine, and that Lee lived
with Harper when Harper was selling Jones drugs. Melanie Young testified that
Harper had introduced her to Lee, that Harper and Lee had lived together for a
time, and that both Harper and Lee dealt drugs. On these facts, the jury
reasonably concluded that Harper and Lee knowingly agreed to possess the five
pounds in Harper’s luggage and that they intended to distribute it.
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Harper argues that even if he did conspire with Lee as to the five pounds,
there is no evidence that he conspired with other persons named in the indictment,
and his activities were not interdependent with theirs. We disagree.
“Interdependence exists where each coconspirator[’]s activities constituted
essential and integral steps toward the realization of a common, illicit goal.”
Edwards, 69 F.3d at 432. Harper’s activities were an integral part of the
conspiracy charged. Baxter Jones testified that he and Alfred Ellick expected to
get a portion of the five pounds confiscated from Harper. He testified that Young
introduced him to Harper because both sold drugs. Clark named Harper, Lee,
Ellick, and Marshall as the persons whom Vera referred to as “big money,” and
testified that Vera mentioned looking forward to resuming dealings with Harper
when Harper got out of jail. Jones testified that Bryant Marshall was Lee and
Harper’s “flunky,” and that when Jones dealt with Harper, Marshall “was just
always there, always around.” Tr. at 256-57. He further testified that Young
gave him rides to pick up drugs from Harper. He characterized Harper as the
“brains of the group.” Tr. at 260. This evidence was sufficient to show that
Harper dealt directly with Ellick, Marshall, Young, Vera, and Clark, as well as
with Lee. The jury could reasonably conclude that Vera (with the aid of Clark)
supplied drugs to Harper, who, with the aid of Young and Marshall, sold them to
Ellick and Jones, among others.
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Furthermore, even though there was little or no evidence at trial of direct
dealings between Harper and McCoy, Altamirano, Sanchez, and Brown, Harper
was shown to be part of one branch of what he must have known to be an
extensive operation with multiple branches. “Where large quantities of narcotics
are being distributed, each major buyer may be presumed to know that he is part
of a wide-ranging venture, the success of which depends on performance by
others whose identity he may not even know.” United States v. Watson, 594 F.2d
1330, 1340 (10th Cir. 1979). On the facts here, a jury could reasonably conclude
that Harper’s handling of large quantities of methamphetamine was essential to
the large-scale operation run by Vera and Altamirano, which included all the
persons named in Count I of the indictment.
B. Refusal to Give Jury Instruction on Withdrawal
Harper contends that the district court erred in refusing to give a jury
instruction on his claim of withdrawal from the conspiracy, and that we should
review that refusal de novo. Harper has not complied with Tenth Circuit Rule
28.2(c), which requires that when an appeal “is based upon . . . the giving or
refusal to give a particular jury instruction,” an appellant must include in his
opening brief “a statement as to where a proper objection and the court’s ruling
thereon may be found in the record.” Our review of the record leads us to
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conclude that Harper’s counsel did not make a proper objection. When the court
refused to give an instruction on withdrawal, counsel for Harper asked only if he
could argue withdrawal to the jury. Tr. at 802-03. Federal Rule of Criminal
Procedure 30 requires that objections to the failure to give a jury instruction must
be made by “stating distinctly the matter to which that party objects and the
grounds of the objection.” We see no such distinct statement in counsel’s
remarks, and we therefore review only for plain error. See, e.g., United States v.
Smith, 13 F.3d 1421, 1424 (10th Cir. 1994).
In order to show plain error, Harper must identify an obvious error that not
only affected his substantial rights but “seriously affected the integrity of his
judicial proceedings.” Bell, 154 F.3d at 1209. We see no such error here because
the evidence of Harper’s withdrawal was both scant and contradicted. Although
Harper made a statement in a letter to Young, an indicted coconspirator, to the
effect that he would not be selling drugs anymore, 1 there was also testimony that
while Harper was in jail he continued contact with coconspirators and that he
directed their actions from inside prison. An instruction from the court on
1
You know that I have changed my life, and I think and know for the better.
I will not be selling drugs and any of the other illegal activity at all, so I
guess I will be getting a job, two or three, so don’t feel bad about working.
. . . I have learned don’t take the easy way out, but when you work hard for
something you appreciate it more, and you have it longer.
Tr. at 774.
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withdrawal might have aided the jury in evaluating this conflicting evidence.
However, the failure to give such an instruction was not plain error.
Even assuming some error, the court’s refusal to given an instruction on
withdrawal was partly offset by the fact that the court allowed Harper’s counsel to
argue withdrawal to the jury. More conclusively, even if an instruction had been
given and had led the jury to accept Harper’s withdrawal argument, the jury could
still have found him guilty of the charged conspiracy. A person who withdraws
from a conspiracy nevertheless is responsible for his own acts and those of his
coconspirators prior to withdrawal. See United States v. Gonzalez, 797 F.2d 915,
916-17 (10th Cir. 1986). In that case, Harper’s sentence would likely have been
the same, because he was actually sentenced based only on the five pounds
confiscated before his alleged withdrawal. In these circumstances, Harper’s
substantial rights were not affected and the integrity of the proceedings was not
compromised.
C. Prior Bad Acts Evidence
Harper appeals the denial of his motion for a new trial. He contends that
the admission of Young’s testimony regarding her trip to California to bring him
cocaine was improper evidence of prior bad acts and should have been excluded.
Harper did not object to the evidence at trial and therefore we review its
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admission only for plain error. See United States v. Wilson, 107 F.3d 774, 782
(10th Cir. 1997). Harper must show that the admission of the evidence was an
obvious error that “placed the underlying fairness of the entire trial in doubt” or
that “affected one of [his] substantial rights.” United States v. Hill, 60 F.3d 672,
675 (10th Cir. 1995).
We do not see an error of such magnitude. Even without Young’s
testimony, there was already evidence that Harper had previously dealt drugs; in
fact, in his closing argument Harper’s attorney conceded as much. He stated,
“I’m not going to tell you he [Harper] wasn’t–hasn’t been a drug dealer in his
past. I think the evidence shows he has.” Tr. at 870. In the context of the entire
trial and in light of these statements by counsel, Young’s testimony regarding
Harper’s procurement of cocaine did not affect Harper’s substantial rights and did
not render the trial fundamentally unfair.
Harper further argues that the prosecutor’s reference during closing
arguments to Young’s statements constituted misconduct. Because Harper did not
object at trial to the prosecutor’s statements, we review only for plain error.
United States v. Lonedog, 929 F.2d 568, 570 (10th Cir. 1991). Again, the
evidence against Harper was extensive and the fact of his drug dealing well-
established. In addition, Harper did not object in the first place to the testimony
to which the prosecutor referred. There is no plain error on this record.
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For the foregoing reasons, we AFFIRM.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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