Lead Opinion
The government indicted 12 individuals connected to a crack-cocaine distribution network in Clinton, Iowa. The indictment alleged various drug and weapons charges. Three of those individuals proceeded to trial and were convicted. Those three individuals now appeal.
A grand jury indicted Anthony Conway, Kendall Robinson, and Excell James Randolph each with conspiracy to manufacture, distribute, and possess with intent to distribute 280 grams or more of crack and cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A), and 841(b)(1)(C). After a six-day trial, a jury found each defendant guilty. Each defendant now challenges the sufficiency of the evidence used to support his conviction. Robinson also challenges the sufficiency of the evidence that supported the jury’s guilty verdict as to his various weapons charges. Robinson and Randolph also challenge the district court’s
I. Background
When reviewing a jury’s verdict, “[t]his court views the entire record in the light most favorable to the government, resolves all evidentiary conflicts accordingly, and accepts all reasonable inferences supporting the jury’s verdict.” United States v. Boesen,
From 2008-2011, several individuals formed a loose-knit crack-cocaine distribution network in Clinton, Iowa. The lead distributor was a group calling itself the “Co-op.” The Co-op consisted of four individuals—John Lewis, Tavares Jones, Thomas Kitt, and Jonathan Spates. Spates was a drug supplier from Rockford, Illinois. Lewis and Jones began traveling to Rockford in early 2010 to purchase substantial quantities of crack and powder
A second important group within the conspiracy consisted of individuals who relocated to Clinton from Chicago, Illinois, to sell crack. Randolph left Chicago and began distributing crack in Sioux City, Iowa. One of Randolph’s childhood acquaintances from Chicago, Carley Campbell, recruited Randolph to Clinton by emphasizing the potential for increased profits and decreased violence. Randolph agreed to relocate to Clinton. Because Randolph was unfamiliar with many of Clinton’s residents, he distributed crack to other dealers, including Campbell. Randolph recruited other Chicago and Sioux City acquaintances to Clinton for the purposes of crack distribution.
Finally, the network included a third group consisting of low-level crack users who bought from distributors. Many of these users allowed distributors to use their residences as distribution points in exchange for money or crack. Conway, Robinson, and Randolph each distributed crack out of these residences on occasion.
Conway, Randolph, and Robinson knew each other through this network. Upon traveling to Clinton, Spates met Conway and began distributing crack and powder cocaine directly to him. Lewis also testified that he sold crack to Conway. Kitt sold crack to Randolph “on numerous occasions.” Meanwhile, Conway and Randolph befriended each other soon after Randolph moved to Clinton. They developed an arrangement where, if either party had little or no crack to distribute and needed money, the other party would provide crack to him. Conway also referred his customers to Randolph when Conway had no crack to distribute. Finally, they often sold crack from the same location and converted powder cocaine to crack cocaine together.
Lewis also supplied Robinson with crack and powder cocaine. Lewis testified that Robinson “purchased drugs from me on numerous occasions.” Robinson accompanied Lewis, Jones, and Kitt to Rockford at least once to purchase crack. Robinson formed a distribution relationship with Thomas Brown, a Clinton dealer. Robinson “fronted”
On March 1, 2010, police recorded phone calls between Randolph and an informant in which they planned a crack deal. The informant then met Randolph and made a controlled purchase of crack. On December 7, 2010, authorities stopped a car in which Robinson was a passenger. The officers who performed the stop knew Robinson and knew that he was the subject of an active arrest warrant. After arresting Robinson, police discovered two packages of cocaine in his possession.
II. Discussicnt
On appeal, all three defendants challenge the sufficiency of the evidence underlying their convictions for conspiracy to
A. Sufficiency of the Evidence
“We review the sufficiency of the evidence de novo, viewing evidence in the light most favorable to the government, resolving conflicts in the government’s favor, and accepting all reasonable inferences that support the verdict.” United States v. Polk,
“To establish that a defendant conspired to distribute drugs under 21 U.S.C. § 846, the government must prove: (1) that there was a conspiracy, i.e., an agreement to distribute the drugs; (2) that the defendant knew of the conspiracy; and (3) that the defendant intentionally joined the conspiracy.” Slagg,
“[A] defendant may be convicted for even a minor role in a conspiracy, so long as the government proves beyond a reasonable doubt that he or she was a member of the conspiracy.” United States v. Lopez,
“[A] defendant’s mere presence, coupled with the knowledge that someone else who is present intends to sell drugs, is insufficient to establish membership in a conspiracy.” United States v. Rolon-Ramos,
Finally, evidence is sufficient to show a conspiracy where drugs are purchased for resale. Donnell,
1. Anthony Conway
Conway contends on appeal that the government presented insufficient evidence for the jury to find him guilty of conspiracy to manufacture, distribute, and possess with intent to distribute crack. He emphasizes that he “was never the subject of any controlled buy, was never the subject of a search warrant, was never at any place when a search warrant was executed, and was never found in possession of any controlled substance.” Conway also contends that the only evidence against him was the self-serving, speculative testimony of other eoconspirators.
Conway’s arguments fail. First, a defendant need not be caught “red-handed” with drugs to be convicted of this crime. We have previously recognized that convictions attained on the basis of testifying coconspirators is sufficient. See Rodriguez-Mendez,
Second, the evidence demonstrated that Conway associated with other members of the conspiracy, which supports an inference of his participation. See Jackson,
Although the evidence does not reflect an explicit agreement among all coconspir-ators to distribute crack and cocaine throughout Clinton, the law does not require such evidence. The evidence here amply demonstrates “proof of a common plan or tacit understanding” among all of those indicted to distribute these drugs throughout Clinton. See Hoelscher,
2. Excell James Randolph
Like Conway, Randolph contends that insufficient evidence supported his conviction for conspiracy to manufacture, distribute, and possess with intent to distribute crack. Specifically, he contends that “[t]he evidence at trial did not show even a tacit agreement between himself and the majority of those individuals indicted.”
Randolph’s argument fails for many of the same reasons fatal to Conway’s. Randolph associated with many co-conspirators, including Campbell, Cameron Williams, and Conway. See Jackson,
Randolph’s ties to other coconspirators involving drug distribution, his relationship with a common supplier, his numerous purchases of resale quantities of drugs, and his distribution of crack to a government informant support the jury’s conclusion that Randolph agreed to participate in the conspiracy to distribute crack and cocaine throughout Clinton.
3. Kendall Robinson
a. Drug Charge
Robinson similarly argues that sufficient evidence did not support his conviction for conspiracy to manufacture, distribute, and possess with intent to distribute crack. He contends that “[t]he evidence presented at ... trial relating to [his] participation, association, and communication with others alleged to have been involved and contributing to the purposes of the charged conspiracy was so lacking and insufficient[] that a reasonable jxrry could not have reached” a guilty verdict.
We reject Robinson’s contention. The government proved beyond a reasonable doubt that Robinson played at least a minor role in the conspiracy. See Lopez, 443 F.3d at 1030. First, officers discovered significant quantities of cocaine on Robinson’s person during the stop of a vehicle in which he was a passenger. Second, Robinson associated with other members of the conspiracy and bought crack from the same supplier. See Jackson,
b. Weapons Charges
The grand jury also indicted Robinson with one count possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c), and two counts of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Robinson contends that sufficient evidence did not support his conviction on any of these weapons charges.
i. Possession in Furtherance
In connection with the possession-in-furtherance crime, Robinson emphasizes that “[t]he gun or weapon referenced by witnesses was never discussed as being brandished in any fashion; nor discussed as ever being fired upon another or in the direction of another” or “seen during any alleged drug transaction.” Furthermore, he highlights that authorities never found a weapon in his possession.
Federal law criminalizes the activities of those who “in furtherance of any [drug trafficking crime], possesses a firearm.” 18 U.S.C. § 924(c). “To satisfy the ‘in furtherance of element of § 924(c), the government must present evidence from which a reasonable trier of fact could find a ‘nexus’ between the defendant’s possession of the charged firearm and the drug crime, such that this possession had the effect of furthering, advancing or helping forward the drug crime.” United States v. Robinson,
Here, a reasonable juror could determine that a sufficient nexus existed between Robinson’s firearm possession and his drug distribution. See Robinson,
ii. Felon in Possession
To obtain a conviction for possession of a firearm by a convicted felon, the government must prove “(1) previous conviction of a crime punishable by a term of imprisonment exceeding one year, (2) knowing possession of a firearm, and (3) the- firearm was in or affecting interstate commerce.” United States v. Montgomery,
The government’s felon-in-possession charges stem from two incidents that occurred in November and December 2010. Robinson’s friend, Mykeah Jefferson, testified that Robinson had become angry with his wife in November 2010. Robinson
Jefferson also recalled riding with Robinson to Brown’s apartment in December 2010. Once there, Robinson asked Brown “to bring his stuff down.” Brown brought Robinson a coat, a watch, and a revolver. Apparently, Robinson returned the revolver to Brown at some point because, after police arrested Robinson in a different matter, he told them that Brown had a revolver in his apartment. Police later found the revolver there. Brown told police and later testified that the revolver actually belonged to Robinson.
Jefferson’s testimony alone supports the jury’s determination of guilt as to the felon-in-possession charges. She testified to seeing Robinson possess a firearm on two occasions. Additionally, as for the November 2010 incident, forensic evidence established that the bullets in Robinson’s wife’s car matched those of the weapon that Robinson was alleged to have carried. As for the December 2010 incident, Brown also testified that Robinson owned the revolver in question. Although Brown, a convicted felon, had the motive to disclaim ownership of the gun, “[w]e will not weigh the evidence or assess the credibility of witnesses” when criminal defendants launch sufficiency-of-the-evidence challenges. United States v. Willis,
Consequently, we reject Robinson’s contention that sufficient evidence did not support his weapons convictions.
B. Jury Instructions
Randolph and Robinson both contend that the district court erred in refusing to provide a “buyer-seller” closing instruction to the jury. Randolph also challenges the district court’s denial of his request to provide a “multiple conspiracies” preliminary instruction.
“Defendants are entitled to an instruction explaining their theory of the case if the request is timely made and if the proffered instruction is supported by the evidence and correctly states the law.” Slagg,
1. Buyer-Seller Instruction
The point at which buyers and sellers of narcotics become co-conspirators in drug distribution evades precise definition. “[A] single drug sale does not automatically make buyer and seller co-conspirators.” United States v. Moran,
At some point the relationships converge. A pattern of sales for resale between the same persons, together with details supplying a context for the relationship, might well support a finding of conspiracy. Even a single sale for resale, embroidered with evidence suggesting a joint undertaking between buyer and seller, could suffice. Common knowledge, interdependence, shared purpose and the other ingredients of a conspiracy are matters of degree. Almost everything in such a case depends upon the context and the details. The evaluation of the facts is entrusted largely to the jury.
Moran,
The buyer-seller instruction is inappropriate where “there is evidence of multiple drug transactions, as opposed to a single, isolated sale.” United States v. Hester,
The district court declined the defendants’ request for a buyer-seller instruction. In rejecting the instruction, the district court explained:
I didn’t give the buyer-seller instruction. That instruction usually says something to the effect of the mere fact of a buyer-seller relationship alone is insufficient to establish a conspiracy. Case law from the Eighth Circuit Court of Appeals states that it’s appropriate where the government alleges a conspiracy relationship arising out of a single transaction and it’s not appropriate where there’s multiple. And here is why I think that’s true. If, for example, you had behavior that was buyer-seller behavior that was repeated a hundred times in a similar fashion, the fact of a buyer-seller relationship might establish a conspiracy under those circumstances, and it could be confusing because there’s—the mere fact of repetitive similar activity can easily be indicative of an agreement or understanding. So that’s why I didn’t give them.
This case does not involve the one-time buyer who purchased a small amount of crack for personal use; rather, this case involves the interactions of members of a drug-distribution network over approximately three years. See Cordova,
2. Multiple Conspiracies Instruction
Randolph argues that the district court erred by failing to provide a “multiple conspiracies” preliminary instruction. Although the district court provided such an instruction in its final jury instructions, Randolph contends that the district court should have provided it as a preliminary instruction. The district court declined, stating, “I purposefully excluded an instruction on multiple conspiracies. Like any other defense, I want to hear the opening statement and hear whether the evidence is sufficient to support that kind of defense, and that’s why I did not give that.”
“A single conspiracy may exist even if the participants and their activities change over time, and even if many participants are unaware of, or uninvolved in, some of the transactions.” United States v. Roach,
Although defendants are entitled to receive a theory-of-defense instruction if the instruction is a correct statement of law and the evidence supports it, Slagg,
III. Conclusion
We affirm the judgments of the district court.
Notes
. The Honorable John A. Jarvey, United States District Judge for the Southern District of Iowa.
. Brown defined "fronting” as the following: "[Robinson] would give [crack] to me and I owed some money back on whatever I make on it.” We have explained that " '[Qronting' denotes a transaction in which the buyer receives drugs on credit and repays the seller from the resale proceeds.” United States v. Slagg,
. Because we conclude that Robinson fails to identify any district court error, we also reject Robinson's derivative contention that the district court abused its discretion in denying his motion for new trial.
Concurrence Opinion
concurring in part and dissenting in part.
I respectfully concur in part and dissent in part. I concur with the majority that sufficient evidence supports each conspiracy conviction. However, I disagree with
In drug conspiracy cases such as this, defendants face vast difficulty to undercut these claims with only the general credibility evaluation jury instruction. Moreover, most conspiracy convictions call for very harsh, lengthy prison sentences under federal sentencing guidelines. Too often the conspiracy convictions rest on little more than guilt by association. The jury should be given a clear choice by appropriate instructions in such cases. Here, an additional instruction as to a buyer-seller relationship was warranted and would have aided the jury in properly evaluating the facts and deciding whether a true conspiracy existed.