United States v. Dahda
2017 U.S. App. LEXIS 5791
| 10th Cir. | 2017Background
- Los Dahda was convicted with 42 others in a long-running marijuana distribution network that sourced marijuana from California for distribution in Kansas; he was convicted on 15 counts and sentenced to 189 months plus a $16,985,250 fine.
- The government’s proof included co-defendant testimony, recorded calls via court-authorized wiretaps, surveillance, seizures, and business records showing trips to California, purchases, warehousing, shipments, and retail distribution in Kansas.
- Count 1 charged a single conspiracy (also alleging cocaine in the indictment but that theory was not submitted to the jury) encompassing 1,000 kilograms or more of marijuana.
- Los challenged (inter alia) sufficiency of evidence for a single, large conspiracy; variance between indictment and proof; territorial defects in wiretap orders; a missing jury finding on drug quantity; an allegedly improper jury instruction on maintaining drug premises; and the fine amount.
- The Tenth Circuit affirmed convictions and the 189-month sentence, rejected five challenges, agreed the fine exceeded statutory maximum, vacated the fine, and remanded for reconsideration.
Issues
| Issue | Plaintiff's Argument (Los) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Sufficiency of evidence for a single conspiracy of ≥1,000 kg marijuana | Evidence showed multiple smaller, shifting conspiracies, not one unified conspiracy | Evidence (cooperator testimony, recordings, records) proved a common illicit goal, interdependence, and Los’s participation | Affirmed: evidence sufficient to support single, large conspiracy and Los’s participation |
| Variance between indictment and proof | Trial proof established multiple smaller conspiracies, creating an unconstitutional variance | No variance; same-conspiracy proof was submitted to jury | Affirmed: no prejudicial variance; treated as sufficiency challenge and failed |
| Wiretap authorization exceeded court’s territorial jurisdiction | Orders allowed stationary listening posts outside issuing court’s district, making orders facially insufficient | Orders valid; suppression not required because territorial defect does not implicate core Title III concerns | Mixed: orders were facially insufficient, but suppression not required; denial of suppression affirmed |
| Jury finding on marijuana quantity (Apprendi claim) | Jury did not explicitly find drug quantity on verdict form; thus maximum exposure should be for <50 kg (5 years) | Indictment and jury instruction charged and required jury to find ≥1,000 kg; verdict form referred to instructions | Rejected: jury was instructed on quantity and verdict form referenced those instructions; no Apprendi violation |
| Jury instruction on maintenance of premises (primary-purpose requirement) | Court should have instructed that premises count requires storing/distributing drugs to be principal or primary purpose of maintaining premises | Defense failed to preserve that instructional-content challenge at trial | Waived: defendant intentionally relinquished challenge; review ends |
| Fine amount | Fine was procedurally and substantively unreasonable and exceeded statutory maximum | Government conceded the fine exceeded statutory maximum and should be reduced | Agreed: fine vacated and remanded for reconsideration (aggregate statutory maximum $13,750,000) |
Key Cases Cited
- United States v. Yehling, 456 F.3d 1236 (10th Cir.) (standard for sufficiency review)
- United States v. Wardell, 591 F.3d 1279 (10th Cir.) (elements of conspiracy)
- United States v. Dickey, 736 F.2d 571 (10th Cir.) (single-conspiracy factual question; unity of purpose)
- United States v. Tavarez, 40 F.3d 1136 (10th Cir.) (where interception occurs: telephone location and listening post)
- United States v. Giordano, 416 U.S. 505 (U.S.) (suppression requires statutory violation that directly and substantially implements congressional intent)
- United States v. Radcliff, 331 F.3d 1153 (10th Cir.) (presumption of validity for wiretap orders and review standard)
- United States v. Brewer, 630 F.2d 795 (10th Cir.) (membership changes do not negate a single conspiracy)
- United States v. Evans, 970 F.2d 663 (10th Cir.) (sufficiency upheld based on assigned roles in drug operations)
- Apprendi v. New Jersey, 530 U.S. 466 (U.S.) (facts increasing statutory maximum must be charged, submitted to jury, and proved beyond reasonable doubt)
- United States v. Chavez, 416 U.S. 562 (U.S.) (legislative history absence can affect suppression analysis)