United States v. Trevor Nelson

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-14473 MARCH 25, 2009
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 05-60160-CR-KAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TREVOR NELSON,
DONEVOR JACKSON,
MARCUS RIVERS,
THOMAS JONES,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(March 25, 2009)
Before BARKETT and FAY, Circuit Judges, and TRAGER,* District Judge.
*
Honorable David G. Trager, United States District Judge for the Eastern District of New
York, sitting by designation.
PER CURIAM:
Co-defendants Trevor Nelson, Marcus Rivers, Thomas Jones, and Donevor
Jackson appeal from their convictions and sentences for conspiracy to possess with
intent to distribute cocaine, in violation of 21 U.S.C. § 846. Jackson also appeals
from his additional conviction and sentence for conspiracy to import cocaine and a
detectable amount of marijuana, in violation of 21 U.S.C. § 963.
The charges stemmed from a drug smuggling operation that moved cocaine
and marijuana from Jamaica to Florida, run by Exall McNeil, the government’s
principal cooperating witness. Narcotic shipments would be loaded onto Air
Jamaica flights in Kingston, Jamaica bound for Fort Lauderdale Airport (FLL).
Appellant Donevor Jackson and Donald Swaby, another government cooperating
witness, worked at FLL for a company called Aircraft Services International
Ground as ramp agents unloading aircrafts. They would keep McNeil informed
about when it was best to arrange shipments and would remove the narcotics from
the Air Jamaica airplanes when the shipments arrived. McNeil then distributed the
cocaine through two separate distributors, “fronting” the cocaine to Appellants
Rivers and Nelson, who each would re-sell it in Jacksonville, FL. Appellant
Thomas Jones worked as a courier for Rivers, picking up cocaine from McNeil,
transporting it to Rivers and returning to McNeil with the money from the sales.
2
McNeil was arrested and offered to testify against other members of this
operation. The government brought an indictment alleging that inter alia all co-
defendants took part in a conspiracy starting in June 2004 to import and distribute
cocaine and marijuana. The jury was given a special verdict form on which to
decide which drugs, and in what amount, were attributable to each defendant.
Only Jackson was found guilty of both importation and distribution and to have
dealt with both cocaine and marijuana, while Rivers, Thomas, and Nelson were
found guilty of distributing only cocaine. This appeal followed raising several
issues, which we briefly address.
I. Admission of “Inextricably Intertwined” Evidence
Jackson, Rivers, and Nelson all argue that the district court erred in
admitting McNeil’s testimony as to drug-related transactions that occurred before
the time-frame stated in the indictment. They assert it should have been
inadmissible under both Fed. R. Evid. 403—because it was more prejudicial than
probative—and 404(b)—because it was evidence of other bad acts, which are not
admissible to prove a defendant’s character in order to show conformity therewith,
and none of the 404(b) exceptions apply. We conclude that the district court did
not err in ruling that the evidence was admissible, as the testimony had probative
value that was not substantially outweighed by prejudice in proving the beginning
3
and continuing stages of the conspiracy; furthermore, rule 404(b) was not
applicable.
[E]vidence of criminal activity other than the charged offense is not
“extrinsic” under Rule 404(b), and thus falls outside the scope of the
Rule, when it is “(1) an uncharged offense which arose out of the
same transaction or series of transactions as the charged offense; (2)
necessary to complete the story of the crime; or (3) inextricably
intertwined with the evidence regarding the charged offense.”
United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007) (citation omitted).
The revelation of the prior transactions served multiple purposes, none of
which was overly prejudicial nor purporting to establish character. First, the past
acts were intertwined with the series of transactions that make up the conspiracy
charge. Second, given that one of the defenses was that the packages—which were
opaque—contained something other than narcotics, this part of the testimony
confirmed why McNeil (and the jury) had reason to believe the package did indeed
contain drugs. Third, as to Jackson, the evidence was relevant to his knowledge or
intent in participating in these transactions. Jackson’s defense, which also argues
that the government cannot prove he had knowledge of the goal of the conspiracy,
is undercut by testimony that suggests he previously knowingly participated in
very similar activities. Thus, the judge did not err in ruling this evidence was
4
admissible.1
II. Permitting the Jury to Find Conspiracy to Distribute Cocaine or
Marijuana Despite the Indictment Charging in the Conjunctive
Jones and Nelson argue that the government must prove a multi-substance
conspiracy since it charged them with conspiracy to distribute both cocaine and
marijuana and that it is a constructive amendment of the indictment to only require
proof of one. Our case law suggests otherwise. It is a constructive amendment of
the indictment—and reversible error per se—“where the jury instructions so
modify the elements of the offense charged that the defendant may have been
convicted on a ground not alleged by the indictment.” United States v. Simpson,
228 F.3d 1294, 1299 (11th Cir. 2000). However, we have previously rejected the
argument that “by changing ‘and’ to ‘or’ in its charge to the jury, the district court
modified the elements of the offense charged, lessened the State’s burden of proof,
and denied him [the defendant] due process rights.” Id. And as we have affirmed
recently, “[t]his Court has long held that where there is a conviction for a
1
Jackson also argues that, with regard to Swaby’s testimony of a previous bad act, the
district court should have declared a mistrial rather than simply provide a limiting instruction to
ignore the relevant testimony. The decision to grant a mistrial is within the discretion of the trial
judge. See United States v. Mendez, 117 F.3d 480 (11th Cir. 1997). “When a court gives a direct
and explicit curative instruction regarding improper testimony, it supports the court’s decision not
to grant a mistrial by decreasing the possibility of undue prejudice.” United States v. Perez, 30 F.3d
1407, 1411 (11th Cir. 1994). Given the other pieces of existing incriminating evidence in the record
against Jackson, and the drastic nature of a mistrial, we do not find the judge abused his discretion
when he gave a limiting instruction to mitigate any prejudice rather than declare a mistrial.
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multi-object conspiracy, the evidence must only be sufficient to sustain a
conviction for any one of the charged objectives.” United States v. Medina, 485
F.3d 1291, 1301 (11th Cir. 2007). The special verdict form did not alter the
elements of the conspiracy, it just provided for a finding in the disjunctive rather
than the conjunctive. Accordingly, it was not a constructive amendment of the
indictment to uphold a conviction upon a finding of a conspiracy to distribute
cocaine or marijuana—in this case, just cocaine. See Griffin v. United States, 502
U.S. 46, 56 (1992) (“When a jury returns a verdict on an indictment charging
several acts in the conjunctive, . . . [t]he verdict stands if the evidence is sufficient
with respect to any of the acts charged.”).
III. Sufficiency of the Evidence
Jackson, Jones, and Nelson all allege that the evidence was insufficient to
support the conspiracy convictions. The elements of the offense of conspiracy
under 21 U.S.C. § 846 are “(1) an agreement between the defendant and one or
more persons, (2) the object of which is to do either an unlawful act or a lawful act
by unlawful means.” United States v. Toler, 144 F.3d 1423, 1426 (11th Cir. 1998).
In analyzing a sufficiency of the evidence claim regarding a conspiracy, the court
must view the facts in the light most favorable to the jury verdict, United States v.
Burroughs, 830 F.2d 1574, 1581 (11th Cir. 1987), and must find that “substantial
6
evidence” exists to support it, Toler, 144 F.3d at 1426. Having considered the
totality of the record, we find there is clearly sufficient evidence as to Jackson and
Jones.
Jackson suggests that because McNeil’s testimony that Jackson was
involved in an importation in June of 2005 was not corroborated by recorded
conversation, it was insufficient. We disagree. The jury and the judge were free to
make a credibility finding that McNeil was telling the truth when he said that
Jackson worked for him. McNeil’s testimony was corroborated by Swaby’s
testimony, who also recounted delivering two packages of cocaine to Jackson to
give to McNeil, and Jackson’s post-arrest statement, which acknowledged
discussing the possibility of taking drugs off the planes.
Jones argues the evidence cannot support his conviction due to lack of
specifics of time and quantity, because McNeil could not provide any evidence as
to when Jones arrived in Fort Lauderdale to pick up cocaine and how much was
retrieved. However, an exact time is not required for proving a conspiracy. See
United States v. Steele, 178 F.3d 1230, 1234 (11th Cir. 1999) (“When charging a
defendant of participating in a conspiracy, the government may discharge its
obligations by referring to a certain duration of time.). McNeil’s testimony
discussed a duration of time and was specific enough to support a finding beyond a
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reasonable doubt that Jones’s activities involved at least five kilograms, even if it
was not pinpointed to an exact amount above that threshold.
As to Nelson, it is a closer question given the short span of recorded
conversations suggesting a very limited role in the distribution chain. Nelson
argues that the evidence proves only a buyer-seller relationship and that there is no
evidence that he participated in a conspiracy to distribute the drugs.2 Simple
purchases are not sufficient for a conspiracy. Burroughs, 830 F.2d at 1581.
However, an agreement may be inferred when the evidence shows a continuing
relationship that results in the repeated transfer of illegal drugs to the purchaser
with evidence of subsequent distribution. Thus, we must determine whether the
2
Alternatively, he suggested at oral argument that the government erred by charging one
single overarching conspiracy. “[T]he government must prove the conspiracy it charged in the
indictment rather than some other conspiracy. The government must show an ‘interdependence’
among the alleged co-conspirators in order to prove that the indicted conspiracy was a single unified
conspiracy as opposed to a series of smaller, uncoordinated conspiracies.” Toler, 144 F.3d at 1426.
Nelson suggests there was no interdependence with anyone but McNeil. We first consider “(1)
whether a common goal existed, (2) the nature of the scheme underlying the crimes charged, and
(3) the overlap of participants.” United States v. Coy, 19 F.3d 629, 633 (11th Cir. 1994). If we find
a variance, we then ask whether it
prejudiced the defendants’ substantial rights. Such prejudice occurs when “(1) the
proof at trial differs so greatly from the charges in the indictment that the defendant
is unfairly surprised and has an inadequate opportunity to prepare a defense, or (2)
if there are so many defendants and so many separate conspiracies before the jury
that there is a substantial likelihood that the jury transferred evidence from one
conspiracy to a defendant involved in another conspiracy.”
Id. at 634.
Given how little evidence there is that Nelson knew of the existence of Rivers or Thomas,
it may have been more appropriate to have charged a separate conspiracy between McNeil and
Nelson. However, despite this possible variance, Nelson did not move for a severance on this basis.
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evidence constitutes “mere isolated sales” or a “continuing course of conduct by
the defendants designed to result in distribution.” Burroughs, 830 F.2d at 1581.
The court has used the following factors as illustrative of a conspiracy: (1) multiple
purchases; (2) regular travel to obtain drugs; (3) communications initiated before
making the trips; (4) the buyer knowing from where the seller’s drugs came; (5)
the seller knowing where the buyer will resell it; (6) the seller’s interest in the
drugs beyond the sale to the buyer; and (7) the “fronting” of drugs to buyers. See
United States v. Beasley, 2 F.3d 1551 (11th Cir. 1993); Burroughs, 830 F.2d 1574.
Nelson made multiple purchases, would travel to Ft. Lauderdale to pick up
the drugs, would communicate with McNeil about whether the drugs had arrived,
and McNeil fronted Nelson the drugs and, therefore, had an interest in Nelson’s
reselling. Nelson argues that the record reveals only a limited amount of phone
conversations that took place and that Nelson informed McNeil he would have to
get drugs elsewhere if McNeil did not have any available. Cf. United States v.
Mercer, 165 F.3d 1331, 1336 (11th Cir. 1999) (“[Defendant’s] comment that he
would go somewhere else if he did not hear from his supplier belies the inference
that he had a conspiratorial agreement with a particular supplier.”). However,
given that we must view the facts as most favorable to the jury verdict, we must
conclude that McNeil’s testimony is sufficient evidence from which a jury could
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infer that Nelson was a conspirator.3
IV. Sentencing Issues
A) Donevor Jackson
Jackson argues that the district court erred in not applying the “safety valve”
provision after finding Jackson had not provided the government with all the
information he had.4 In applying the safety-valve provision, this court reviews the
district court’s factual findings for clear error and its legal conclusions de novo.
3
Rivers also argues that the penalties provided for in 21 U.S.C. § 841 violate the equal
protection clause and are cruel and unusual punishment. These arguments are foreclosed by our
prior precedent. See United States v. Holmes, 838 F.2d 1175, 1177–78 (11th Cir. 1998) (holding
that § 841(b)(1)’s mandatory minimum provisions were rationally related to the objectives of
protecting public welfare); United States v. Willis, 956 F.2d 248, 251 (11th Cir. 1992) (holding that
the mandatory life sentence provisions of § 841(b)(1) do not violate the Eighth Amendment).
Jones also argues that the district court abused its discretion in permitting McNeil and an FBI
Agent to testify as to the meanings of certain recorded conversations. Given that McNeil was
personally involved in the conversations and the FBI Agent was qualified to serve as an expert in
this capacity, we find no reversible error on this issue.
Jackson also argues that the district court abused its discretion in permitting a Jamaican
forensic lab analyst to testify. The fact that the expert was trained in Jamaica, as opposed to the
United States, does not deprive her of any of the requirements to qualify as an expert under Fed. R.
Evid. 702 (stating that a witness must have “knowledge, skill, experience, training or education”
relevant to the evidence at issue).
4
The Sentencing Guidelines provide for sentencing without regard to any statutory
minimums with respect to certain offenses when specific requirements are met. U.S. Sentencing
Guidelines Manual § 5C1.2 (2008); 18 U.S.C. § 3553(f) (2008). The Guidelines also permit a
two-level reduction in the offense level for certain drug-related crimes if the defendant meets the
five criteria set forth in § 5C1.2 and § 3553(f). U.S. Sentencing Guidelines Manual § 2D1.1(b)(11).
The five criteria are as follows: the defendant (1) must have no more than one criminal history point;
(2) must not have been a leader in the offense; (3) must have been non-violent during commission
of the offense, (4) must not have engaged in an offense that resulted in death or serious bodily
injury; and (5) truthfully provided the government with all the information and evidence he had
“concerning the offense or offenses that were part of the same course of conduct or of a common
scheme or plan.” U.S. Sentencing Guidelines Manual § 5C1.2(a)(1-5); § 3553(f)(5).
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United States v. Poyato, 454 F.3d 1295, 1297 (11th Cir. 2006). Jackson bears the
burden of establishing that he qualifies for the reduction. United States v. Cruz,
106 F.3d 1553, 1557 (11th Cir. 1997). The defendant has “an affirmative
responsibility to truthfully disclose to the government all information and evidence
that he has about the offense and all relevant conduct.” United States v. Johnson,
375 F.3d 1300, 1302 (11th Cir. 2004).
Jackson argues that the government has not explained how his statements
were incomplete and that the court erred by deferring to the government’s assertion
without making its own determination. Jackson fails to meet his burden. In his
statement, Jackson admitted that he participated in the offenses, but denied that he
was paid and indicated that he never followed through with McNeil’s plans about
off-loading drugs. The testimony at trial established that Jackson off-loaded
several shipments of drugs and was paid $3,500 per kilogram. In considering the
reduction, the court stated that it found it implausible that Jackson would have
participated in the offenses without compensation. Based on the record, then, the
district court did not rely solely on the government’s argument. The court
evaluated Jackson’s credibility and his statement to the government and
independently determined that Jackson did not qualify for the reduction.
B) Marcus Rivers
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Rivers argues that the district court erred in enhancing his sentence for
playing a supervisory role in the offense. This court reviews “for clear error the
district court’s determination of [the defendant’s] role in the scheme and de novo
its application of the guidelines to that role.” United States v. Njau, 386 F.3d
1039, 1041 (11th Cir. 2004). “The findings of fact of the sentencing court may be
based on evidence heard during trial, . . . undisputed statements in the presentence
report, or evidence presented at the sentencing hearing.” United States v. Wilson,
884 F.2d 1355, 1356 (11th Cir. 1989). “[T]he ultimate determination of role in the
offense is . . . a fundamentally factual determination entitled to due deference . . . .”
United States v. Rodriguez De Varon, 175 F.3d 930, 938 (11th Cir. 1999) (en
banc).
Section 3B1.1(b) of the U.S. Sentencing Guidelines provides, “[i]f the
defendant was a manager or supervisor (but not an organizer or leader) and the
criminal activity involved five or more participants or was otherwise extensive,
increase by 3 levels.”5 Here, the district court properly concluded that Rivers was a
manager or supervisor. First, the overall scheme involved more than five
5
The commentary elaborates, “[t]o qualify for an adjustment under this section, the
defendant must have been the . . . manager, or supervisor of one or more other participants.” U.S.
Sentencing Guidelines Manual § 3B1.1 cmt. n.2 (2008). A “participant” is defined as “a person who
is criminally responsible for the commission of the offense, but need not have been convicted.” U.S.
Sentencing Guidelines Manual § 3B1.1 cmt. n.1.
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participants, as the testimony at trial established that Rivers was linked to McNeil,
Jones, Jackson and Swaby. Second, the testimony and evidence at trial was
sufficient for the court to conclude that Rivers directed Jones to pick up drugs and
deliver them to Rivers. McNeil stated that he met Jones through Rivers, that there
were several phone calls between McNeil and Rivers in which the two discussed
Jones, and that Jones contacted McNeil to obtain cocaine independently to sell for
himself instead of Rivers. Furthermore, the government introduced recorded calls
in which Rivers referred to his “boys” or “workers” and specifically told McNeil
that Jones had “messed up.” In light of this evidence, the district court’s
conclusion that Rivers was a supervisor is entitled to deference.6
C) Trevor Nelson
Nelson argues that he was entitled to a minor role reduction because the
evidence established that he had no knowledge of the larger conspiracy, and that he
was responsible for only five percent of the cocaine. This court reviews a district
6
Rivers also contends that his sentence is unreasonable. Here, the sentenced imposed was
both procedurally and substantively reasonable. First, the district court correctly calculated the
Guidelines range, treated the guidelines as advisory, considered the § 3553(a) factors, and
adequately explained its reasoning for imposing the specific sentence. Notably, the court considered
and agreed that a variance was warranted in order to address the disparity in sentencing between
McNeil and Rivers. The sentence was also substantively reasonable. Rivers was sentenced to 180
months’ imprisonment, which was well below the low end of the calculated guidelines range of 210
months. Rivers has offered nothing to show the sentence imposed was not reasonable nor has he
shown that he was punished for exercising his right to trial other than to claim that the disparity in
sentence establishes that he was punished. The court took this concern into consideration and
applied a variant sentence to account for any disparity.
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court’s determination of a defendant’s role in the offense for clear error.
Rodriguez De Varon, 175 F.3d at 937. Nelson bears the burden of showing that he
is entitled to a role reduction by a preponderance of the evidence. Id. at 939.
A district court may decrease a defendant’s offense level by two levels if it
finds that the defendant was a “minor participant.” U.S. Sentencing Guidelines §
3B1.2(b) (2008). A “minor participant” is a defendant “who is less culpable than
most other participants, but whose role could not be described as minimal.” U.S.
Sentencing Guidelines § 3B1.2 cmt. n.5 (2008). In determining whether a
minor-role adjustment applies, the district court should consider two principles:
“first, the defendant’s role in the relevant conduct for which [he] has been held
accountable at sentencing, and, second, [his] role as compared to that of other
participants in [his] relevant conduct.” Rodriguez De Varon, 175 F.3d at 940. As
to the first prong, “[o]nly if the defendant can establish that [he] played a relatively
minor role in the conduct for which [he] has already been held accountable—not a
minor role in any larger criminal conspiracy—should the district court grant a
downward adjustment for minor role in the offense.” Id. at 944. The first prong
may, in many cases, be dispositive. Id. at 945.
Here, Nelson has offered nothing to show that he was entitled to a reduction.
Importantly, Nelson was held accountable only for the amount of drugs in which
14
he participated and not the amount attributed to the larger conspiracy. Moreover,
Nelson has not shown that he was less culpable than others involved, only that he
distributed less cocaine.7
Accordingly, the convictions and sentences of all defendants are
AFFIRMED
7
Nelson also claims that his sentence was unreasonable. This claim fails. First, the sentence
was procedurally reasonable for, as discussed above, the district court adhered to the procedural
requirements. The sentence was substantively reasonable, as Nelson’s sentence was at the low end
of the guidelines range and well below the statutory maximum sentence.
15