United States v. Christie

11-0608-cr
United States v. Christie
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 13th day
of April, two thousand twelve.
Present:
GUIDO CALABRESI,
ROBERT D. SACK,
PETER W. HALL,
Circuit Judges.
____________________________________________________
United States of America,
Appellee,
v. No. 11-0608-cr
Selmor Reid, Philmour Gayle, Wayne Eulett, AKA Primer, Gossett McPherson, Leroy Collins,
AKA Iroy, Kathy Sanchez, AKA Kathy Grant, Norma Dixon, AKA Joy,
Defendants
David Christie, AKA Big Man,
Defendant - Appellant.
____________________________________________________
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FOR APPELLANT: Richard H. Rosenberg, New York, N.Y.
FOR APPELLEE: Christian R. Everdell, Christopher D. Frey, Andrew L. Fish,
Assistant United States Attorneys, of counsel, for Preet Bharara,
United States Attorney for the Southern District of New York,
New York, N.Y.
_____________________________
Appeal from a judgment of the United States District Court for the Southern District of
New York (Sweet, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Appellant David Christie appeals from a judgment of the United States District Court for
the Southern District of New York (Sweet, J.) convicting him, following a jury trial, of (1)
conspiracy to import into the United States and (2) conspiracy to distribute and possess with
intent to distribute five kilograms or more of cocaine and 100 kilograms or more of marijuana.
The district court sentenced Christie to 20 years’ incarceration, five years’ supervised release,
and imposed a $200 special assessment. We assume the parties’ familiarity with the underlying
facts, the procedural history of the case, and the issues on appeal, and we discuss these only
where necessary to explain our decision.
Christie argues on appeal that the district court should have instructed the jury on
multiple conspiracies and that the court’s failure to give such a charge caused him substantial
prejudice. A defendant challenging a district court’s decision to omit a multiple conspiracy
charge must show both that “there was evidence of separate networks operating independently of
each other” and that the defendant “suffered substantial prejudice resulting from the failure to
give the requested charge.” United States v. Cusimano, 123 F.3d 83, 89 (2d Cir. 1997) (internal
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citation and quotation marks omitted). We hold that Christie has not shown either, and
accordingly affirm the decision of the district court.
Christie argues that the evidence at trial established nine different conspiracies. That
assertion is without merit. A single conspiracy exists where the government has shown “that
each alleged member agreed to participate in what he knew to be a collective venture directed
toward a common goal.” United States v. Martino, 664 F.2d 860, 876 (2d Cir. 1981). We
traditionally examine several factors to determine when a single conspiracy exists, including the
overriding goal of the conspiracy, the core group who led the conspiracy, if the individual
operations shared common participants, if the individual schemes were independent, and if the
participants used distinctive means and methods common among the individual operations.
United States v. Berger, 224 F.3d 107, 115 (2d Cir. 2000). The operations in Newark,
Philadelphia, and Miami were led by a core group of participants (with Christie as the main
supplier) and clearly constituted a “collective venture directed toward a common goal” with the
overriding goal to import from Jamaica narcotics to sell in the United States. Martino, 664 F.2d
at 876, Berger, 224 F.3d at 115.
Testimony from trial established that a supplier (Selmor Reid, Christie, “Cecil,” “Spy,”
or “Dave”) would give the drugs to a handler (Dave) at the Montego Bay Airport, who hid the
drugs behind Bin Four of the plane’s cargo section; the supplier then communicated the tail
number on the plane to either an intermediary (Sekou Gooden) or the baggage handler at the
airport; if the intermediary knew the plane’s tail number he told the baggage handler (Philmour
Gayle and Patrick Coulton); once the plane landed, the baggage handler located the plane based
on the tail number, removed the drugs, and turned them over to a distributor (Christie’s
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distributor was Wayne Eulett and Dave’s was Gossett McPherson). The operations at the several
locations and among the several participants thus utilized “distinctive means and methods,”
Berger, 224 F.3d at 115, as well as “overlapping of participants in the various dealings,” United
States v. Johansen, 56 F.3d 347, 351 (2d Cir. 1995). See also United States v. Nersesian, 824
F.2d 1294, 1302-03 (2d Cir. 1987) (holding one conspiracy existed where core members ran the
importation and distribution of heroin through different suppliers in Syria and several
distribution points in the United States); United States v. Vanwort, 887 F.2d 375, 384-85 (2d Cir.
1989) (holding a single conspiracy where one person organized two operations with two
different airlines and a different employee from each airline for the common purpose of
importing Brazilian cocaine).
Christie’s assertion that the Newark operations constituted two conspiracies because
Christie replaced Reid as the main narcotics supplier is without merit. “[C]hanges in
membership [do not] necessarily convert a single conspiracy into multiple conspiracies,” United
States v. Maldonado-Rivera, 922 F.2d 934, 963 (2d Cir. 1990), and “[t]here is no requirement
that the same people be involved throughout the duration of the conspiracy,” Vanwort, 887 F.2d
at 383. The fact that Christie replaced Reid after a dispute arose between Reid and another co-
conspirator does not show multiple conspiracies. “[I]t is not at all uncommon for disagreements
to occur in a common enterprise,” so it is not “inconsistent with such an ongoing, unitary
conspiracy that disputes might arise . . . and that switches in affiliation might occur from time to
time.” United States v. Aracri, 968 F.2d 1512, 1522 (2d Cir. 1992) (quoting United States v.
Heinemann, 801 F.2d 86, 92 (2d Cir. 1986)). For the same reasons, Christie’s argument that
personnel changes on the distribution end of operations constituted more than one conspiracy is
without merit.
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Christie’s assertion that, because the drugs were imported to three different airports in
Newark, Philadelphia, and Miami, there were three different conspiracies also fails. “[S]hifting
emphases in the locales of operations [do not] necessarily convert a single conspiracy into
multiple conspiracies.” Maldonado-Rivera, 922 F.2d at 963 (finding a single conspiracy even
though each of the phases—a robbery, money transfers, and a gift giveaway—took place in
distinct locations from Connecticut to Mexico). Further, a single conspiracy is not transformed
into multiple conspiracies solely by the fact that it involved “two or more phases or spheres of
operation,” Maldonado-Rivera, 922 F.2d at 963, or that it “occur[ed] in more than one stage and
at different times” so long as there was “an ongoing connection between transactions,” United
States v. Vasquez, 113 F.3d 383, 387 (2d Cir. 1997). The evidence at trial established an
“ongoing connection between transactions” where the same participants used the same methods
and the same means to import drugs by plane into the United States over a course of four years.
Consistent with an ongoing connection and the interdependence of the operations, Christie did
not establish the Miami operations in addition to or distinct from the Newark and Philadelphia
operations but shifted operations there because several personal disputes between co-
conspirators interrupted operations into Newark. Berger, 224 F.3d at 115.1
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Even if the testimony at trial established multiple conspiracies, the failure to instruct the
jury on multiple conspiracies did not substantially prejudice Christie. Christie was tried alone,
which “seriously undermines any possible claim of substantial prejudice.” United States v.
Harris, 8 F.3d 943, 947 (2d Cir. 1993). Neither shocking nor inflammatory evidence was
admitted against Christie because evidence of other suppliers and other narcotics trafficking was
“largely repetitive” and “substantially the same conduct as that proven against [Christie].”
Cusimano, 123 F.3d at 90 (internal citation omitted); United States v. Alessi, 638 F.2d 466, 475
(2d Cir. 1980). Indeed, much of the evidence Christie contends establishes multiple conspiracies
was admitted for purposes other than establishing the conspiracy and would have been admitted
regardless of the distinction between single and multiple conspiracies. See United States v. Sir
Kue Chin, 534 F.2d 1032, 1035 (2d Cir. 1976) (noting there was no error in admitting evidence
of two conspiracies at trial, even though the indictment charged one offense, because the
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We have considered all of Christie’s remaining arguments and find them to be without
merit.
Accordingly the judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
evidence would have been admissible otherwise to show intent); United States v. Diaz, 176 F.3d
52, 79 (2d Cir. 1999) (“[I]t is within the [district] court’s discretion to admit evidence of prior
acts to inform the jury of the background of the conspiracy charged . . . .” (internal citation and
quotation marks omitted)).
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