United States v. Bobby Williams, Jr.

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-1939
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Bobby James Willians, Jr., also known *
as Junior, *
*
Appellant. *
___________
Submitted: January 15, 2010
Filed: May 20, 2010
___________
Before MELLOY, SMITH, and COLLOTON, Circuit Judges.
___________
SMITH, Circuit Judge.
A jury found Bobby Williams Jr. guilty of conspiracy to possess with the intent
to distribute methylenedioxymethamphetamine (MDMA, also commonly known as
"Ecstasy"). Williams was also found guilty of money laundering in connection with
the conspiracy. The district court1 sentenced Williams to 360 months' imprisonment
on the two counts. On appeal, Williams argues that the district court: (1) erred in
overruling his motion for judgment of acquittal based on insufficient evidence that he
1
The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.
laundered money; (2) abused its discretion by rejecting a jury instruction defining the
scope of illicit proceeds in money laundering cases; (3) erred in its calculation of
MDMA attributable to Williams when Williams was incarcerated during a period of
the conspiracy; (4) erred in applying a four-level role-in-the offense enhancement or,
alternatively, the enhancement created an unwarranted disparity among similarly
situated codefendants; and (5) erred in failing to dismiss the indictment for a violation
of the Speedy Trial Act. For the following reasons, we affirm.
I. Background
A. The Money Laundering
In August 2006, United States Postal Inspector Bryan Witt began investigating
packages mailed between Oakland, California, and St. Louis, Missouri, based upon
suspicious postal packages observed in St. Louis. Witt reviewed parcel records
looking for characteristics common to packages discovered to have contained drugs.
Witt identified a significant number of such packages having a similar weight, and all
but one were mailed from the same post office in Oakland. Witt obtained copies of
eight shipping labels that he believed to be related. With the cooperation of informants
Diane Pittman and Rickey Miller, Witt connected Bobby Williams to mail shipments
of MDMA to St. Louis.2
2
One of the packages was addressed to Pittman. Witt connected Pittman and
Rickey Miller to a number of the addresses on the packages. Seven of the eight labels
were addressed either to Pittman or Miller or to an address associated with them. Witt
placed a parcel watch on each of the St. Louis addresses. On September 8, 2006, Witt
was notified that a package addressed to 8837 Granada, St. Louis, 63136, one of the
questioned addresses, arrived and had been identified.
Witt took possession of the package. He found that the package had a fictitious
return address, originated in Oakland, and was addressed to a fictitious name. The
listed sender was Van Le (later identified as Thu Van Dinh, a.k.a. Van Le, Le Van,
and "T"). The name "Le Van" was on four other packages. A narcotics-detection dog
was called and alerted on the package, indicating the presence of the odor of a
controlled substance. Witt obtained a federal search warrant and found the contents
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Witt pursued the money-laundering investigation by locating records for a
series of postal money orders dating from March 6, 2006, to April 5, 2006. On March
6, 2006, two $1000 postal money orders were purchased with cash in East St. Louis,
Illinois, by James Smith, 675 Post, San Francisco, California. Williams negotiated
both money orders the following day at a Bank of America in San Francisco,
California. Witt identified the account holder as Bobby Williams Jr. at P.O. Box 9169,
Richmond Heights, Missouri. Witt determined that 675 Post in San Francisco did not
exist.
of the box to be four vacuum-sealed bags each containing approximately 1000 tablets.
The pills tested positive for MDMA. A postal worker subsequently left an "attempt
to deliver" notice at the Granada address. The following day, Shawana Miller, Rickey
Miller's sister, attempted to claim the package. The package had been addressed to
"Kim Tuck," and Shawana Miller was unable to provide identification in that name
and left without the package. Rickey and Shawana Miller returned to the post office
shortly thereafter, and Rickey was given the package. He and his sister were then
arrested. Both agreed to cooperate, and a series of recorded phone calls were made to
the telephone number of the person that Rickey Miller knew to be the source of
supply.
Soon after, Witt found the labels for two additional packages that fit the pattern
of the original eight. One, the ninth package, was mailed on February 9, 2007, to
Bobby Williams. The package was mailed from Oakland but had a return address of
P.O. Box 9169 in Richmond Heights, Missouri. The P.O. Box was listed to Bobby
Williams Jr. Witt recognized that name as the name of the subject of a
money-laundering investigation involving postal money orders being sent between St.
Louis, Missouri and San Francisco, California, in April 2006. The tenth suspicious
parcel label showed that the package originated in the San Francisco metropolitan
area, it used a fictitious name and return address and was destined for St. Louis,
Missouri. The return address listed Mike Smith at 516 O'Farrell in San Francisco,
California. Witt identified a number of postal money orders associated with Williams
that used the name Mike Smith. The ninth and tenth labels were associated back to the
narcotics investigation because the return address of 537 Post Avenue in San
Francisco, California, a fictitious address, was on one of the original eight packages.
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On April 5, 2006, Mike Smith of 589 O'Farrell, San Francisco, California,
purchased six $1000 postal money orders from four different post office branches in
the St. Louis area. "O'Farrell" had been used on some of the earlier parcel labels. All
six were cashed at the same time on April 7, 2006—by Williams—at the same San
Francisco Bank of America branch using the same account number as the first two.
The bank account records also showed that on April 5, 2006, an additional $3000 was
deposited in St. Louis, Missouri to the same San Francisco bank account.3
During the investigation, Witt learned that Williams was incarcerated in late
May 2006 through sometime in January 2007. Bank and credit card records showed
that Williams paid down his Bank of America credit card balance shortly before going
to prison by making cash payments of almost $20,000 between May 10, 2006, and
May 24, 2006. Once out of prison, almost $7000 in cash deposits were made to
Williams's account between May 12, 2007, and June 27, 2007. Western Union records
also showed that between December 27, 2005, and May 24, 2006, the day before
Williams reported to prison, seven Western Union money orders totaling $13,500
were sent to Williams by codefendants or their relatives.
Southwest Airlines records showed that between December 29, 2005, and
November 29, 2007, Williams flew to or from St. Louis, Missouri and Oakland,
California, 76 times, spending approximately $24,000 on airfare. Records obtained
from the Internal Revenue Service showed that Williams filed no tax returns for tax
years 2004–2007.
3
Buying money orders in amounts less than $3000 avoids Currency
Transactions Reports (CTRs) which are designed to identify persons involved in
money laundering. "Structuring" transactions is often an attempt to avoid triggering
the CTR when involved in money laundering.
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B. Diane Pittman
Pittman testified that Miller introduced her to Williams, his cousin, because
Miller wanted her to take drug money on an airplane to California, accompanied by
Williams in March or April 2006. She had been in a relationship with Miller since she
was 16 and had lived with him—off and on—since then. Pittman testified that
Williams wanted the drug supplier, "T," to meet Pittman and know her face so that she
could take over when Williams was incarcerated. An Asian man picked them up at the
airport and took them to "T." Williams gave "T" the money. While in California,
Williams and Pittman went to a post office where they mailed a package containing
MDMA back to St. Louis. Pittman made another ten to 12 trips to Oakland after
Williams went to prison on an unrelated charge.
Pittman testified that when Williams left for prison, Williams instructed Miller
to continue to mail the money to "T" as if Williams was there. Pittman understood that
"T" was going to save the money for Williams to preserve his income during his
incarceration.
On June 6 or 7, 2006, St. Louis airport security stopped Pittman and seized
$37,251 cash from her. Pittman lied to the Drug Enforcement Agency about who gave
her the money to transport, not mentioning Miller or Williams. On July 8, 2006,
Jennings, Missouri police officers found and seized marijuana, drug paraphernalia, a
firearm, and $41,000 in cash at the home that Pittman shared with Miller. Pittman told
the police that the money came from Miller's sale of MDMA. She did not mention
Williams. Pittman stopped flying to Oakland at that time. Instead, she started mailing
the drug money Miller earned to "T" in Oakland.
C. Terrell Terry
Terrell Terry testified that he had known Miller and Pittman most of his life. In
late 2005, Miller introduced Terry to Williams. In early 2006, Miller and Terry were
selling marijuana that they received from Williams. Miller received the marijuana
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from California through the mail. Terry testified that one day Miller asked Williams
if he could get Ecstasy, and Williams said he could get Ecstasy pills for $1 per pill but
would charge $2 to $2.50 for them. Miller and Terry bought $3000 worth of Ecstasy
from Williams. A group thereafter began to make regular purchases of Ecstasy from
Williams, and approximately ten boxes of Ecstasy came through the mail from
January 2006 through June 2006, when Terry left the operation and branched off on
his own. Williams was present every time the pills initially arrived, and he would then
leave when the time came to split up a batch of pills.
The price of pills went up sometime in February, March or April 2006. Terry
testified that Miller told him that Williams was raising the price on the pills an extra
25 cents because Williams was going to turn himself in to do some jail time and
wanted to make some more money before he was incarcerated. The pills went up to
$2.75 per pill. Terry estimated that he personally sold 25,000 to 30,000 pills during
his involvement in the scheme. Terry and Miller continued to sell the pills while
Williams was incarcerated. Terry testified that Miller told him that Miller was putting
the extra money up for Williams.
Williams, along with nine codefendants, was indicted on December 6, 2007, for
conspiracy to possess with the intent to distribute MDMA in violation of 21 U.S.C.
§§ 846 and 841(a)(1) ("Count I"), and money laundering in violation of 18 U.S.C.
§ 1956(a)(1)(B)(i) ("Count II"). The total amount of MDMA attributed to the
conspiracy was 28,000 units or 7000 grams. The presentence investigation report
(PSR) attributed the entire amount of MDMA to Williams.
A jury found Williams guilty of both counts. Williams filed a pro se motion for
a new trial based on ineffective assistance of counsel, pro se objections to the PSR and
a pro se motion to dismiss for violation of the Speedy Trial Act. Williams's attorney
also filed objections to the PSR. Williams denied that the convictions filed in the role-
in-the-offense enhancement under 21 U.S.C. § 851 were his convictions. The defense's
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objections included general denials of being involved in a conspiracy or laundering
money. Williams also challenged the drug quantity allegations, his role in the offense,
and his criminal history. The district court denied all of Williams's motions and
overruled all of his objections. The PSR set Williams's total offense level at 38 and his
criminal history at V producing a Guidelines incarceration range of 360 months to life,
with a statutory maximum sentence of 360 months. The court sentenced Williams to
360 months' imprisonment on the drug charge and 240 months' imprisonment on the
money laundering charge, to be served concurrently. A six-year term of supervised
release (three years concurrent on Count II) was also ordered.
II. Discussion
On appeal, Williams argues that the district court (1) erred in overruling his
motion for judgment of acquittal because insufficient evidence supported the money
laundering conviction; (2) abused its discretion by rejecting a jury instruction defining
the scope of illicit proceeds in money laundering cases; (3) erred in its calculation of
MDMA attributable to Williams when Williams was incarcerated during a period of
the conspiracy; (4) erred in applying a four-level role-in-the offense enhancement or,
alternatively, the enhancement created an unwarranted disparity among similarly
situated codefendants; and (5) should have dismissed the indictment for a violation
of the Speedy Trial Act. We address each argument in turn.
A. Insufficient Evidence
Williams's sufficiency argument contends that no evidence suggested a design
or scheme to conceal the nature, location, source, ownership, or control of the funds
transported. Thus, he argues the government failed to prove that Williams laundered
money. Williams asserts that the evidence presented at trial instead proved a different
crime. According to Williams, the government showed that he structured a transaction
to avoid a reporting requirement, a different, lesser offense than money laundering.
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We review sufficiency-of-the-evidence questions de novo to determine whether,
taking the evidence in the light most favorable to the verdict, a reasonable juror could
have found the defendant guilty of the charge alleged in the indictment beyond a
reasonable doubt. United States v. Cruz, 285 F.3d 692, 697 (8th Cir. 2002). Using this
standard, and resolving conflicts in the government's favor and accepting all
reasonable inferences that support the verdict, "we will reverse the conviction only
where no reasonable jury could have found the accused guilty of the crime charged
in the indictment." United States v. Alyass, 569 F.3d 824, 828 (8th Cir. 2009) (internal
quotations, alteration and citations omitted).
The government charged Williams under 18 U.S.C. § 1956(a)(1)(B)(i). That
statutory section covers
[w]hoever, knowing that the property involved in a financial transaction
represents the proceeds of some form of unlawful activity, conducts or
attempts to conduct such a financial transaction which in fact involves
the proceeds . . . knowing that the transaction is designed in whole or in
part . . . to conceal or disguise the nature, the location, the source, the
ownership, or the control of the proceeds of specified unlawful activity.
Id. (emphasis added). The main argument between the parties centers on the phrase
"designed to conceal." Williams contends that he merely structured the money orders
to "avoid a transaction reporting requirement under State or Federal law," in violation
of 18 U.S.C. § 1956(a)(1)(B)(ii), not to conceal the nature, location, source,
ownership, or control of the illegal money involved in drug transactions. Williams
argues that he "merely hid[ ]" the funds, which does not violate the statute per
Supreme Court precedent. Cuellar v. United States, 128 S. Ct. 1994, 2003 (2008). The
government argues that his structuring is itself evidence of Williams's intent to conceal
and that it presented sufficient evidence of William's intent to conceal the proceeds.
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The Supreme Court analyzed 18 U.S.C. § 1956 in Cuellar. There, the Court
held concealment, under § 1956, requires an intent to conceal the transportation (or
transaction) which involves more than merely hiding contraband. Id. at 2004. In
Cuellar, the defendant hid money in secret compartments of his car in order to
transport it undetected from Mexico to the United States. Id. at 1998–99. The Court
held that no evidence suggested the transportation was designed to conceal anything
about the money itself (such as the fact that it was obtained illegally); rather, the
concealment merely served the goal of transportation. Id. at 2004. The Court noted
that "[t]here is a difference between concealing something to transport it, and
transporting something to conceal it. . . ." Id. at 2005 (internal quotations and citation
omitted). In short, the Court held that evidence of why the money was hidden was
more important than the mere fact that it was hidden. The Cuellar Court found that the
defendant was only hiding the money to make it easier to transport, not to conceal one
of the attributes of the money. Id. Because the defendant did not intend to conceal the
nature, location, source, ownership, or control of the proceeds, the Court reversed the
conviction. Id. at 2006.
The Fifth Circuit in United States v. Brown discussed Cuellar in depth,
acknowledging Cuellar's holding that "how one moves the money is distinct from why
one moves the money. Evidence of the former, standing alone, is not sufficient to
prove the latter." 553 F.3d 768, 787 (5th Cir. 2008) (quoting Cuellar, 128 S. Ct. at
2005) (emphasis in Cuellar). In Brown, the defendants were pharmacists convicted
of various offenses, including money laundering arising from their distribution of
medicines under false prescriptions. Id. at 773. Depending on the nature of their
activities, codefendants were convicted of money-laundering promotion or
concealment. Id. As to the money laundering allegations, the government provided
evidence from accounts and other records of transactions designed to avoid reporting
requirements and otherwise to disguise the nature of pharmacy monies. Id. at 778.
Ultimately, the government proved § 1956(a)(1)(B)(i) concealment by demonstrating
that certain defendants made payments for illegal prescription drugs in structured cash
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transactions, that is, in amounts of less than $10,000 so as to avoid federal reporting
requirements. Id. at 787. Specifically, the Fifth Circuit
appl[ied] the doctrine of Cuellar and h[e]ld that the government's
evidence is sufficient to satisfy that standard. . . . By their concealment
contrivances, the defendants intended to and did make it more difficult
for the government to trace and demonstrate the nature of these funds.
While some aspects of "classic" money laundering are absent, many of
them are present. The transactions were in cash so that they were not
easily tracked. Most deposits were below ten thousand dollars so as to
avoid setting off any reporting requirements that might then lead to
unwanted attention concerning the funds' nature. Some of this behavior
could also be reached by the "structuring" provisions of the money
laundering statute, 18 U.S.C. § 1956(a)(1)(B)(ii), but the government
charged concealment and has produced sufficient evidence to support
those charges.
Id. at 787 (internal footnotes omitted).
A Fourth Circuit case is also instructive. In United States v. Villarini, the
defendant embezzled $83,000, which she later deposited in structured amounts into
a bank account in her own name. 238 F.3d 530, 532 (4th Cir. 2001). Villarini was
charged with money laundering under § 1956(a)(1)(B)(i) based on four transactions
which involved a portion of the cash that she had embezzled. Id. All four transactions
were in amounts of less than $3000. Id. Villarini argued, like Williams, that she
should have been charged with structuring under § 1956(a)(1)(B)(ii) not money
laundering under (B)(i), however the court disagreed, stating:
We conclude that the evidence here was sufficient to support the money
laundering convictions. Typically, a scheme to deposit a large amount of
cash in relatively small increments would be prosecuted pursuant to 18
U.S.C.A. § 1956(a)(1)(B)(ii) (West 2000) as designed to avoid a
transaction reporting requirement. See United States v. Garcia-Emanuel,
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14 F.3d 1469, 1478 (10th Cir. 1994). Nevertheless, the fact that Villarini
did not deposit the entire $83,000 in a single bank transaction, and
instead made four transactions, each involving less than $3,000, at
two-to-four-week intervals, gives rise to a reasonable inference that the
transactions were designed to avoid suspicion or to give the appearance
that she had a legitimate cash income stream. See id. (reversing judgment
of acquittal on money laundering count when defendant's wife made
purchase by depositing ill-gotten cash in amounts of $7,000, $8,000, and
$8,000 into her checking account and then writing a $20,000 check).
Id. at 533.
Williams's acts compare to those of the defendant in Villarini. Williams and the
defendant in Villarini each divided a small portion of their illegal proceeds into sums
under $3000. Both defendants did so to evade federal reporting requirements. Both
defendants used bank accounts in their own names to negotiate the structured deposits.
In this case, the government presented evidence that Williams structured transactions
with fictitious names ("Mike Smith" and "James Smith") to avoid law enforcement
attention concerning the nature and source of his funds. The record evidence shows
that Williams repeated these same acts of concealment eight times. Following Brown
and Villarini, this evidence is sufficient to prove concealment under the Cuellar
standard. Williams's intent to conceal the specific attributes of his illegal funds is clear
through his structuring, usage of cash, and manufacturing of a fictitious purchaser.
Depositing money as cash with a ficitious name as the purchaser does more than
"merely hide" the money from reporting requirements; we hold that a reasonable jury
could find that Williams's intent was to conceal the nature of the funds. If Williams's
only goal was to avoid reporting requirements, there would be no need to use a
fictitious name. The use of "Mike Smith" demonstrates that Williams wanted not only
to shield himself from reporting requirements but also to actively conceal the nature
or source of the funds.
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Williams relies upon United States v. Herron to support his argument that he
was not guilty of concealment because he used his own name and bank account. In
Herron, the defendants wired proceeds of a drug operation to their own bank accounts
using non-structured amounts. 97 F.3d 234, 237 (8th Cir. 1996). "[T]hey used their
own names when sending the money to Chicago, and there is no evidence to suggest
that the money was received by any persons other than those named in the Western
Union records." Id. Therefore, there was no effort to conceal; the defendants in
Herron merely moved illegal proceeds from one place to another, with no subterfuge.
But in the present case, Williams took illegal cash proceeds, transferred them into
money orders using both a real and a fictitious name. Williams did, therefore, take
affirmative steps towards concealing the nature and source of the funds. Section
1956(a)(1)(B)(i) "requires proof that the purpose—not merely effect—of the
transportation was to conceal or disguise a listed attribute." Cuellar, 128 S. Ct. at
2005; accord United States v. Upton, 559 F.3d 3, 10–11 (1st Cir. 2009); United States
v. Huezo, 546 F.3d 174, 179 (2nd Cir. 2008). A reasonable jury could conclude that
Williams was not just "hiding" money. Disguising where the money came from was
his purpose for hiding the cash in the money orders.
B. Jury Instruction
Williams next argues that the district court abused its discretion in rejecting a
jury instruction that narrowly defined the scope of illicit proceeds available for a
determination of money laundering. Williams objected to the proposed jury
instruction, alleging that it was ambiguous. Williams contends that it was unclear
whether "proceeds" from criminal activities included gross receipts or only profits.
According to Williams, this error dramatically increased the likelihood of his
conviction for money laundering. The government responds that the district court gave
the appropriate definition of proceeds as "gross receipts" pursuant to our precedents
in the context of drug trafficking.
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"We review the district court's jury instructions for abuse of discretion, and this
court will affirm if the instructions, taken as a whole, fairly and adequately submitted
the issues to the jury." United States v. Katz, 445 F.3d 1023, 1030 (8th Cir. 2006)
(internal quotations and citation omitted). "A district court has broad discretion in
instructing the jury, and jury instructions do not need to be technically perfect or even
a model of clarity." Id. (internal quotations and citation omitted). "A defendant is
entitled to a specific jury instruction that conveys the substance of his request if his
request is timely, it is supported by evidence in the case, and is a correct statement of
the law." United States v. Cruz-Zuniga, 571 F.3d 721, 725 (8th Cir. 2009) (internal
quotations and citations omitted). However, a defendant "'is not entitled to a
particularly-worded instruction when the instructions actually given by the trial court
adequately and correctly cover the substance of the requested instruction.'" United
States v. Long, 977 F.2d 1264, 1272 (8th Cir. 1992) (quoting United States v. Lewis,
718 F.2d 883, 885 (8th Cir. 1983)). We will reverse "only if the district court's alleged
erroneous failure to give a particular instruction was prejudicial." Cruz-Zuniga, 571
F.3d 725 (internal quotations and citation omitted).
The offense of money laundering includes the use of "proceeds" from an
unlawful activity as an element of the offense. 18 U.S.C. §1956(a)(1). Under our
precedent, "proceeds" includes anything that is the gross receipt of illegal activity.
United States v. Simmons, 154 F.3d 765, 770 (8th Cir. 1998) (noting that while
circuits across the country have defined the term "proceeds" as alternatively gross
revenue or profit, "[w]e think the better view is the one that defines proceeds as the
gross receipts of the illegal activity"). Since Simmons was considered, however, the
Supreme Court decided United States v. Santos, 128 S. Ct. 2020 (2008). In Santos, a
divided Court ruled on the definition of "proceeds" in certain money laundering
contexts making it relevant to our review here.
Santos involved an illegal gambling operation that did not involve contraband,
a key distinction. The justices split as follows: four in the majority held that
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"proceeds" means "profits" in all contexts, id. at 2031; the four in dissent held that
"proceeds" always means "gross receipts," id. at 2035; Justice Stevens, who cast the
decisive vote for the majority in his concurrence, concluded that "proceeds" means
profits in some cases and gross receipts in others, depending on the legislative history.
Id. at 2033.
The defendant in Santos, who operated an illegal lottery, was convicted of
illegal gambling and money laundering promotion. Id. at 2022–23. The transactions
that formed the proceeds element of the money laundering charge were payments
made by the defendant to lottery winners. Id. at 2023. The defendant challenged the
money laundering conviction on the theory that the payments were not proceeds (in
the sense of profits) but rather were simply receipts or revenue used to cover his
operating expenses, and therefore they were not sufficient to support a money
laundering conviction. Id. The Court considered whether "proceeds" under the statute
means only profits of the specified criminal activities or whether it includes all
receipts. Id. at 2022.
Invoking the rule of lenity in light of statutory ambiguity, a four-justice
plurality held that the money laundering conviction was invalid because "proceeds"
includes only the profits of unlawful activity, not all receipts. Id. at 2031. The
defendant's payments to his employees and the lottery winners could not serve as the
basis for money laundering charges because the monies involved in those payments
were not profits but merely receipts necessary to paying his expenses. Id.We recently considered Santos for the first time. In United States v. Spencer,
under similar facts to the present case, a defendant was convicted for conspiracy to
distribute cocaine and money laundering. 592 F.3d 866, 870 (8th Cir. 2010). The
defendant argued that because the jury instructions in his trial did not distinguish
between "profits" and "receipts," his conviction was impermissibly based on receipts
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rather than profits. Id. at 879. We held that Santos does not apply in the drug context.
Id.Other circuits have similarly noted that "[t]he precedential value of Santos is
unclear outside of the narrow factual setting of that case, and the decision raises as
many issues as it resolves for the lower courts." Brown, 553 F.3d at 783; see also
United States v. Demarest, 570 F.3d 1232, 1242 (11th Cir. 2009) (distinguishing,
based on Santos, the definition of proceeds as to drug trafficking from proceeds as to
illegal gambling); United States v. Fleming, 287 F. App'x. 150, 155 (3d Cir. 2008)
(unpublished) (holding that "the term 'proceeds' includes gross revenues for drug
sales").
Therefore, we conclude that the district court did not abuse its discretion by
providing the jury with an instruction that did not define "proceeds" as the profits of
the drug trafficking operation.
C. Amount of MDMA
Williams next argues that the district court erred in its calculation of MDMA
attributable to him. Williams contends that his jointly undertaken activity concluded
upon his incarceration for an unrelated offense. Williams argues that there was no
evidence adduced at trial indicative of a shared purpose once Williams was
incarcerated.
A district court's sentence is reviewed under an abuse-of-discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007). Its factual findings in relation to drug
quantity are reviewed for clear error. United States v. Alexander, 408 F.3d 1003, 1009
(8th Cir. 2005). Its interpretation of the Sentencing Guidelines is reviewed de novo.
United States v. Mickle, 464 F.3d 804, 807 (8th Cir. 2006).
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U.S.S.G § 1B1.3(a)(1)(B) provides that a defendant's base offense level shall
be determined
in the case of a jointly undertaken criminal activity (a criminal plan,
scheme, endeavor, or enterprise undertaken by the defendant in concert
with others, whether or not charged as a conspiracy), all reasonably
foreseeable acts and omissions of others in furtherance of the jointly
undertaken criminal activity, that occurred during the commission of the
offense of conviction, in preparation for that offense, or in the course of
attempting to avoid detection or responsibility for that offense. . . .
"A defendant may be guilty of conspiracy even when he is incarcerated while
the purpose of the conspiracy is being effected." United States v. Casares-Cardenas,
14 F.3d 1283, 1288 (8th Cir. 1994). A quantity of drugs from sales that are
foreseeable to the defendant, although he did not actively participate in the actual sale,
may be attributed to the defendant. United States v. Brown, 148 F.3d 1003, 1008 (8th
Cir. 1998). "Factors relevant to foreseeability include whether the defendant
benefit[t]ed from his co-conspirator's activities and whether he demonstrated a
substantial level of commitment to the conspiracy." Id. Additionally, a defendant bears
the burden of showing that he withdrew from a conspiracy and must take affirmative
actions to do so. United States v. Granados, 962 F.2d 767, 773 (8th Cir. 1992); United
States v. Zimmer, 299 F.3d 710, 718 (8th Cir. 2002). "Mere cessation of activities is
not enough" to prove a defendant withdrew from a conspiracy. Granados, 962 F.2d
at 773; accord United States v. Maggard, 156 F.3d 843, 851 (8th Cir. 1998).
The evidence at trial showed that the first known parcel was mailed from
Oakland on March 3, 2006. The parcels continued after Williams's incarceration
because he had trained Pittman to take his place in the operation. The final parcel
arrived in St. Louis on September 11, 2006. After Williams left prison in January
2007, he continued to fly back and forth between Oakland and St. Louis. Between
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February 1, 2007, and December 6, 2007, the date the indictment was issued, Williams
completed 44 one-way flights between Oakland and St. Louis.
Williams produced no evidence that he withdrew from the conspiracy. There
was testimony that Pittman wanted to cut Williams out of the conspiracy, but in fact
Pittman still sent the agreed amount of money to "T" to hold for Williams while
Williams was incarcerated. On March 12, 2007, Williams made a cash deposit of
$2400 to his Bank of America account. Thereafter, several additional cash deposits
were made as he continued to travel between St. Louis and Oakland through the date
of the indictment (December 6, 2007) in this case.
Williams concedes that some evidence was presented that he wished to receive
some portion of drug proceeds upon his release, but he argues that the test is whether
he actually received that benefit to determine his level of commitment to the
conspiracy. In fact, "[c]ommitment to the conspiracy, along with degree to which a
defendant benefitted from his co-conspirators['] actions, are factors relevant to
foreseeability[,]" not a determinative test. United States v. Alexander, 408 F.3d 1003,
1010 (8th Cir. 2005) (internal quotations and citation omitted) (emphasis added).
Based on this record, the district court could conclude that Williams was aware of the
conspiracy and still wished to take part in it while he was incarcerated. There was no
clear error in the district court's calculation of drug quantity attributable to Williams.
D. Leadership Enhancement
Williams next argues that the district court created an unwarranted disparity
among similarly-situated codefendants by applying a four-level leadership
enhancement to his sentence that other codefendants did not receive. Williams alleges
a similarly-situated codefendant received only a three-level role-in-the offense
enhancement, although this codefendant directed several people in the retail sale of
drugs, and Williams did not. Williams also argues that such an enhancement was
unwarranted because the evidence was insufficient to prove that Williams controlled
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or directed other participants in the offense. The government responds that the district
court properly applied a four-level enhancement to Williams's Guidelines offense
level because he was an organizer and leader of several members of the conspiracy.
We review the findings of fact by the district court in applying a sentencing
enhancement based on defendant's role in the offense for clear error. United States v.
Lashley, 251 F.3d 706, 712 (8th Cir. 2001); United States v. White, 241 F.3d 1015,
1024 (8th Cir. 2001). We will find clear error only when we are left "with the definite
and firm conviction that a mistake has been committed." United States v. Lalley, 257
F.3d 751, 758 (8th Cir. 2001) (internal quotations and citation omitted). "On issues
of law (for example, what is the line between an organizer or leader, on the one hand,
and a manager or supervisor, on the other), our review is de novo." United States v.
Bahena, 223 F.3d 797, 804 (8th Cir. 2000). Finally, we note that "a defendant need
be only 'an' organizer or leader. He does not have to be 'the' organizer or leader." Id."There can be more than one organizer or leader of a criminal activity. . . ." Id.We review the reasonableness of a sentence for abuse of discretion. United
States v. Dalton, 404 F.3d 1029, 1032 (8th Cir. 2005). An abuse of discretion may
occur when a court "gives significant weight to an improper or irrelevant factor."
United States v. Pepper, 518 F.3d 949, 952 (8th Cir. 2008) (internal quotations and
citation omitted). Where the district court makes an individualized assessment based
on all facts presented, addressing the defendant's proffered information in its
considerations of the § 3553 (a) factors, such sentence is not unreasonable. United
States v. Stults, 575 F.3d 834, 849 (8th Cir. 2009).
1. Sufficiency of the Evidence
Under the Guidelines, an enhanced sentence for a leadership role is appropriate
where a defendant was: (a) an organizer or leader of five or more participants; (b) a
manager or supervisor of five or more participants; or (c) an organizer, leader,
manager, or supervisor of four or fewer participants. U.S.S.G. § 3B1.1 Thus, two
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elements operate to enhance a defendant's sentence by two, three, or four levels: a
leadership role over at least one other individual and numerosity of participants.
United States v. Logan, 121 F.3d 1172, 1179 (8th Cir. 1997).
A leadership role is determined by "the nature of defendant's role in the offense,
the recruitment of accomplices, the degree of participation in planning or organizing
the offense." United States v. Ortiz-Martinez, 1 F.3d 662, 677 (8th Cir. 1993)
(citations omitted). A court may also look to a defendant's "decision-making authority
. . . and the degree of control and authority that the defendant exercised over others."
United States v. Del Toro-Aguilera, 138 F.3d 340, 342 (8th Cir. 1998) (internal
quotations and citations omitted).
"In this circuit, a four-level upward adjustment applies where the evidence
shows a defendant is a leader or organizer of an illegal enterprise that involved five
or more participants even if the defendant's leadership role did not encompass all the
participants." United States v. Payne, 119 F.3d 637, 646 (8th Cir. 1997). Factors to
consider are:
[T]he defendant's "exercise of decision making authority, the nature of
participation in the commission of the offense, the recruitment of
accomplices, the claimed right to a larger share of the fruits of the crime,
the degree of participation in planning or organizing the offense, the
nature and scope of the illegal activity, and the degree of control and
authority exercised over others."
United States v. Rodriguez, 484 F.3d 1006, 1015 (8th Cir. 2007) (quoting U.S.S.G.
§ 3B1.1 cmt. n.4). We recognize that "the line between being an 'organizer or leader,'
on the one hand, and a 'manager or supervisor,' on the other, is [not] always clear."
United States v. Delpit, 94 F.3d 1134, 1155 (8th Cir. 1996). However, "we have said
several times that this Court has 'broadly defined' the terms 'organizer' and 'leader.'"
Bahena, 223 F.3d at 804.
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Williams argues he was a "middleman," and not a leader, because, for example,
it was Miller who told Pittman to fly to California. But the record reflects that Miller
told Pittman to go to California at Williams's behest because Williams needed
someone to take over his role when he was incarcerated. Williams also relies on Del
Toro-Aguilera in support of his argument that there was insufficient evidence to prove
a leadership role. In Del Toro-Aguilera, a three-level role-in-the-offense enhancement
was overturned because the defendant merely fronted the drugs to another dealer but
did not exercise a sufficient amount of control over the operation. 138 F.3d at 343.
However, in that case, the only evidence of the defendant's involvement in the drug
conspiracy was the fact that he "occasionally fronted drugs" to other members of the
conspiracy. Id. at 342. Conversely, in United States v. Flores, there was evidence that
the defendant had "solicited a substantial buyer on behalf of the drug ring, helped
finance the [buyer's] trip, played an integral and extensive role in planning [a]
transaction . . . and personally managed and ensured that [a] $200,000 deal got done."
73 F.3d 826, 836 (8th Cir. 1996).
In this case, Williams did more than merely introduce Miller to a supplier, as
he contends. The government presented evidence showing that Williams acquired the
drugs from the California supplier, Thu Van Dinh; introduced Pittman to Dinh so that
she could take his place by delivering money to Dinh and mailing the MDMA from
California to St. Louis while he was in prison; instructed Pittman how to carry money
on an airplane; acquired names and addresses from other persons in order to send the
pills to persons other than himself; set the price per pill to Miller and his street
distributors; increased the price per pill while he was in prison so he would have
money when he got out; and, before surrendering himself to prison, oversaw the
distribution of the pills once the shipments were received from California. Williams
was the primary link in the acquisition and distribution of the illegal drugs from
California to St. Louis. He then sold the pills to others in St. Louis who distributed
them. "Typically, this [four-level] enhancement applies to a defendant who employs
or otherwise arranges for intermediaries to sell his drugs." United States v. Sherman,
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262 F.3d 784, 793 (8th Cir. 2001) (internal quotations and citation omitted).
"Although the defendant need not directly control his intermediaries in order to be a
leader or organizer of the conspiracy, he must do more than sell for resale." Id.Williams did much more than sell for resale, and we hold the district court did not err
in finding that he was in fact a leader or organizer of this drug conspiracy. The
enhancement is affirmed.
2. Sentencing Disparity
Williams alternatively argues that if an enhancement was appropriate, he still
received a four-level enhancement while Miller received only a three-level
enhancement, which resulted in an unwarranted disparity between the two
codefendants. Williams asks us to at least reduce his enhancement to a level
commensurate with Miller's. The government contends that Williams's participation
in the conspiracy was one step above that of Miller and a four-level enhancement was
warranted.
Williams notes that § 3553(a) seeks to avoid sentencing disparities. Williams
again argues that he was just a middleman while Miller was the true leader. "A
sentence is not unreasonable simply because it [ ] creates some disparity between
sentences." United States v. Myers, 503 F.3d 676, 686–87 (8th Cir. 2007) (citation
omitted). "Applying [the Guidelines rigidly to avoid disparity] would effectively
render the Guidelines mandatory." United States v. Winters, 416 F.3d 856, 861 (8th
Cir. 2005). "We cannot isolate possible sentencing disparity to the exclusion of . . . all
the other Section 3553(a) factors." Id. "[E]ach case must be judged on its own facts
. . . ." Id.As explained supra, Williams's leadership role exceeded Miller's. Williams led
Miller and in fact instructed Miller to send him money while Williams was in prison.
Williams was the person in contact with Thu Van Dinh, the source. He was the person
who obtained the MDMA from Dinh and funneled it down through Miller to the street
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distributors. Williams trained Pittman to replace him, traveled with her, introduced her
to Dinh, took her to the post office to show her how to address the packages, and paid
for her expenses in California until reimbursed by Miller. Williams also set the drug
prices for Miller and his subordinates. Williams told Miller that he purchased the pills
for $1 each but would sell them to Miller and Terrell Terry for $2.50 each. Williams
increased the price to $2.75 per pill just before he went to prison to increase profit for
when he was released. Each time a package arrived in St. Louis (before Williams went
to prison), Williams appeared with the package and doled the pills out to Miller and
his street distributors.
We hold that any sentencing disparity between Williams and Miller was due to
their unique roles in the conspiracy and is not unreasonable.
E. Speedy Trial Act
Finally, Williams argues that at least 72 days lapsed between the start of the
Speedy Trial Act ("Act") clock and the commencement of his trial and submits that
he is entitled to dismissal of his case on that basis. The government responds that the
Act was not violated. The government alleges that Williams waived his rights under
the Act by failing to file a motion to dismiss his charges based on a violation of the
Act. Alternatively, the government maintains that Williams was in fact tried in a
timely manner.
We review a district court's findings of fact relative to the Act for clear error
and its legal conclusions on the issue de novo. United States v. Contreras, 341 F.3d
791, 793 (8th Cir. 2003). The defendant bears the burden of proof to show that his
statutory speedy trial right has been violated. United States v. El-Alamin, 574 F.3d
915, 922 (8th Cir. 2009). When a defendant fails to assert his right to a speedy trial
by moving for a dismissal before trial, the right is waived. United States v. McAdory,
501 F.3d 868, 872 (8th Cir. 2007) (citing 18 U.S.C. § 3162(a)(2) ("Failure of the
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defendant to move for dismissal prior to trial . . . shall constitute a waiver of the right
to dismissal under this section.")).
Under the Act, a federal criminal defendant must be brought to trial within 70
days of the defendant's arraignment or the filing of the defendant's indictment,
whichever is later. See United States v. Gamboa, 439 F.3d 796, 804 (8th Cir. 2006);
18 U.S.C. § 3161(c)(1). However, the Act provides for a tolling of this 70-day period
upon certain delays including "delay resulting from any pretrial motion, from the
filing of the motion through the conclusion of the hearing on, or other prompt
disposition of, such motion" 18 U.S.C. § 3161(h)(1)(D), and "delay reasonably
attributable to any period, not to exceed thirty days, during which any proceeding
concerning the defendant is actually under advisement by the court." 18 U.S.C.
§ 3161(h)(1)(H).
In this case, Williams's counsel did not file a pretrial motion to dismiss the
charges. Williams did attempt to file a pro se motion to dismiss. However, because
Williams was represented by counsel at the time, the district court did not accept the
motion into the record, stating: "IT IS HEREBY ORDERED that the Pro Se Motion
to Dismiss Indictment filed by Defendant be stricken as a filing in the Court record,
and be retained in the record for informational purposes only."
No other motions to dismiss were filed. Williams's failure to timely file a
motion into the record waived his right to seek dismissal based upon the Act when he
decided to proceed to trial on December 8, 2008. 18 U.S.C. § 3162(a)(2); see also
McAdory, 501 F.3d at 872 ("We will not reach the merits of McAdory's Speedy Trial
Act claim, however, because he waived his right to assert it by failing to move for
dismissal before trial."); United States v. McFarland, 116 F.3d 316, 318 (8th Cir.
1997) ("McFarland's remaining claims merit little discussion. McFarland waived his
right to assert a Speedy Trial Act violation by failing to move for dismissal before
trial.").
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We hold that Williams waived his right to object on the basis of a violation of
the Speedy Trial Act because he did not properly file a motion to dismiss before trial,
and therefore we need not consider the merits of this claim.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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