Case Information
*3 Before RICHARD S. ARNOLD, Chief Judge, MAGILL, Circuit Judge, and VAN
SICKLE, District Judge. [*]
___________
*The Hon. Bruce M. Van Sickle, United States District Judge for the District of North Dakota, sitting by designation. *4
RICHARD S. ARNOLD, Chief Judge.
A jury convicted the seven defendants of various crimes, including interstate murder-for-hire, 18 U.S.C. § 1958(a), arising out of a Twin Cities-based drug conspiracy and gang rivalry. They received prison sentences ranging from 97 months to life. The defendants challenge their trial, convictions, and sentences. We reject most of these challenges. We agree, however, with Chanise Lynn and Zackarrie Prado that their interstate murder-for-hire convictions must be reversed. They may well have taken part in a murder plot, but the government did not prove they violated federal law. Finally, we remand Saunders's case for resentencing because the murder-for-hire plot of which he was a leader or organizer did not involve five or more "participants." U.S.S.G. § 3B1.1(a).
I.
The jury found that the defendants all participated in the drug- dealing and strong-arm tactics of a Twin Cities gang called the Shotgun Crips. Dennell Malone and Jermaine Saunders were the ringleaders of the operation. They imported cocaine from California, for re-sale in Minnesota, through their source, Kenneth Washington (who apparently remains a fugitive). The operation included couriers who smuggled procaine (a cutting agent used to make crack) from California to Minnesota; underlings who helped convert cocaine powder into crack; and middle-men who bought crack from the operation and sold it to others. And in August 1994, the operation employed the services of Calvin "Monster" Delpit, a Los Angeles- based hitman, to intimidate a rival gang and competitor in the Twin Cities drug market.
We describe the evidence against the individual defendants in more detail below. For now, we will simply summarize the case against the Malone/Saunders operation. The case grew out of an investigation into the Los Angeles Shotgun Crips' Minnesota
outreach efforts. Beginning in May 1994, government agents began wiretapping telephones used by Larry Thomas, and they intercepted coded conversations about drug-dealing. These conversations led the agents to one of Thomas's customers, Tim Nelson, who agreed to cooperate with the investigation.
Thomas's drug source, the wiretaps revealed, was the Malone/Saunders operation, and Thomas owed the operation a large sum of money. On June 7, the police observed as Thomas passed a paper bag to Malone and Saunders during a pre-arranged money drop. That night, Malone and Saunders told Thomas he hadn't paid all the money he owed. Malone also tried to sell Thomas a cellular phone, which, he suggested, would help them avoid wiretaps. Thomas continued to negotiate with Washington and Malone to purchase more drugs, but because Thomas was so far behind in his payments, they cut him off. Thomas continued his relation with the operation, though, until mid-July, when he caught on that they were being investigated. Malone and Saunders, however, did not quit their drug-dealing
activities. That same June, Malone was using three juveniles, including his younger brothers, to sell drugs for him. And in August, the [1]
government intercepted phone calls between Saunders and Washington concerning a 15.6 kilogram cocaine shipment that had been intercepted in Utah. The calls revealed how Malone had set up the shipment and recruited the failed courier. The calls also suggested that at least one other significant drug shipment had made it through to Minnesota.
That same August, the government learned that Malone and Saunders had hired Calvin Delpit, an L.A. hitman, to come to Minnesota and kill members -- no one in particular, apparently --
All three young men pleaded guilty to drug-related offenses. 1
See United States v. D.A.M.,
The next day, August 28, Prado called Saunders to complain that he'd seen Vice Lords driving by his mother's house. Saunders told Prado he'd better kill the Vice Lords before they got him first. Prado suggested they could ambush the Vice Lords that afternoon at a concert in downtown Minneapolis, and Saunders put Prado in touch with Delpit. A little later, Prado picked up Delpit, and then Malone. The group then split up into two cars, with Prado and Malone in the lead and Delpit following by himself. The police, concerned that the drive-by plan was about to go off, stopped the cars. Delpit tried to escape. He pulled his gun, pointed it at an officer, then threw the gun away, and ran off. He was captured, and his gun was recovered. A second gun was found in his car. Malone and Prado were released because they were unarmed. Later, the police overheard phone conversations confirming that Prado, Malone, and Delpit had been planning to do a drive-by shooting when they were apprehended.
Meanwhile, the operation's drug activities continued. A few days later, Saunders sent Chanise Lynn to California to pick up *7 some procaine. Saunders asked Jai Jones, who was in Los Angeles, to help Lynn get the procaine, and to accompany her back to Minnesota. Jones and Lynn arrived back in Minnesota with two black bags. Prado met them at the airport, dropped Lynn off at her house, and then he and Jones delivered the procaine to Malone and Saunders. While the police were getting a warrant to search the house where Malone and Saunders had divided up the procaine and were getting ready to "cook" the crack, people started leaving the house. The police stopped Jones and Prado, and found seven pounds of procaine in their car. Malone and another left next, and the police found seven more pounds of procaine, a scale, a clone cellular phone, and almost $5,000 in cash in the car. Finally, Saunders and two others left. The police tried to stop them and, during a high-speed chase, Saunders threw two guns and a backpack out of the car. The police eventually caught the car, arrested Saunders, and found the guns (both loaded). They also found three more pounds of procaine and a scale in the car. The next day, someone turned the backpack over to the police. It contained another clone cellular phone, 1.5 kilograms of powder cocaine, wrapped in a special fashion, just like the cocaine shipment that had been intercepted in Utah.
The government brought a fifteen-count indictment against the defendants. All but Delpit were included in Count 7, which alleged a conspiracy to distribute crack cocaine. 21 U.S.C. § 846. Delpit, Malone, Saunders, Lynn, and Prado were charged with interstate travel with the intent to commit murder-for-hire, 18 U.S.C. § 1958(a), and conspiracy to violate § 1958(a). The rest of the counts charged different defendants with various drugs-, fraud-, and weapons-related crimes. All the [2] Malone, Saunders, and Delpit were charged in Count 3 with use 2
of firearms in connection with a crime of violence, 18 U.S.C. § 924(c)(1); Delpit was charged in Count 4 with being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1); Saunders was charged in Count 5 with possession with intent to distribute cocaine, 21 U.S.C. § 841(a)(1), in Count 6 with use of firearms in connection with drug trafficking, 18 U.S.C. § 924(c)(1), and in Count 15 with obtaining cellular telephone services by fraud, 18 U.S.C. § 1029(a)(1); Malone was charged in Counts 9 and 8 with aiding and abetting possession with intent to distribute and distribution of cocaine base, 21 U.S.C. §§ 841(a)(1), in Count 10 with using minors in drug trafficking, 21 U.S.C. § 861(a)(1), and *8 appellants but Prado
in Count 13 with obtaining cellular telephone services by fraud, 18 U.S.C. § 1029(a)(1); Lynn was charged in Count 11 with possession with intent to distribute cocaine base, 21 U.S.C. § 841(a)(1); Malone, Saunders, Lynn, and Thomas were charged in Count 12 with conspiracy to engage in drug trafficking, 21 U.S.C. § 846. *9 were convicted on all counts against them; the jury acquitted Prado on the drug-conspiracy charge (Count 7). Malone and Saunders received life sentences; Delpit, 19 years; Thomas, 15 years and three months; Jones, nine years and four months; Lynn, nine years; and Prado, eight years and one month.
II.
This is a complicated case. Many of the defendants' claims overlap with others'; some arguments are raised by only one or a few. We think this opinion will be easier to follow if organized by shared claims and arguments instead of by the individual defendants bringing them.
A. Severance
Six of the seven defendants -- all but Delpit -- insist that the District Court should not have joined their cases with the others' and should have granted their motions to sever. The District Court found that because "the conspiracies alleged are interconnected and encompass each of the individual substantive counts, joinder of the defendants and counts is proper." We will reverse the District Court's denial of the severance [3]
motions only
Order (Dec. 30, 1994), adopted by Memorandum and Order (Jan. 3
18, 1995).
if it abused its discretion, resulting in definite prejudice. United
States v. Darden,
Under Fed. R. Crim. P. 8(a), offenses may be joined if they are of
the same or similar character, or are based on the same act or transaction,
or on different acts or transactions which are part of a "common scheme or
plan." Defendants may be joined if "they are alleged to have participated
in the same act or transaction or in the same series of acts or
transactions constituting [the] offense . . .." Fed. R. Crim. P. 8(b).
See Darden,
We agree with the District Court that joinder was proper in this case. All the defendants but Delpit were charged with the same, underlying drug conspiracy (Count 7), and the government alleged that Malone and Saunders hired Delpit to do a contract killing to increase their operation's prestige and profits. It doesn't matter that Larry Thomas and Jai Jones had nothing to do with the murder-for-hire plot, or that Delpit was not indicted for the drug conspiracy. As the District Court observed, when violence is part of the conspiracy's modus operandi, "charges stemming from that violence are properly joined with the conspiracy charges, even if not all members of the conspiracy participated in the violence." [4]
Even when Rule 8(a) permits joinder, a trial court may order separate trials on different counts, or sever certain defendants' Memorandum and Order, at p. 4 (Jan. 18, 1995). 4
cases from others', to protect defendants' fair-trial rights. Fed. R.
Crim. P. 14; Darden,
Saunders complains because Delpit told the jury that he was a drug
dealer -- not a killer -- and that he came to the Twin Cities to broker
drug deals. True, Delpit's defense did not put Saunders and the others in
the best light. But co-defendants are often hostile to one another, and
one will try frequently to "point the finger," to shift the blame, or to
save himself at the expense of the other. "Antagonistic" defenses require
severance only when "`there is a danger that the jury will unjustifiably
infer that this conflict alone demonstrates that both are guilty.'" United
States v. De Luna, 763 F.2d 897, 921 (8th Cir.) (citation omitted)
(emphasis added), cert. denied,
The self-described "minor players" -- Thomas, Prado, Jones, and Lynn
-- argue that they were prejudiced by the extra courtroom security, the
gang affiliations and disruptive courtroom behavior of some defendants, the
spillover taint of the murder-for-hire charges and the evidence relating
to those charges, and by publicity and paranoia about "black gang-crime"
in the Twin Cities. We reject all these claims. Severance is not required
merely because evidence which is admissible only against some defendants
*12
may be damaging to others, United States v. Blum,
The Supreme Court has made it clear that the risk of prejudice posed
by joint trials is best cured by careful and thorough jury instructions
like those given by the District Court in this case. See Zafiro, 506 U.S.
at 540-41. The District Court repeatedly instructed the jury -- using an
instruction drafted by the defense -- that the murder-for-hire evidence was
admissible only against the defendants charged with interstate murder-for-
hire. The jury acquitted Prado and one other defendant on the drug-
conspiracy charge, which shows they were able to separate out the drug-
related evidence from the murder-related evidence. See United States v.
Jackson,
A defendant must show actual prejudice before we will reverse a denial of a motion for severance. None of the defendants has made such a showing, and the District Court did not abuse its discretion. We think the Court did a good job managing this very difficult case. In re-affirming the law's preference for joint trials, we do not endorse guilt by association. Instead, we
presume, as we must, that juries can and do follow instructions conscientiously, evaluate evidence carefully, and judge defendants individually.
B. Sergeant Murphy's Interpretation of the Coded Conversations The government's investigation and prosecution depended heavily on wiretapped telephone conversations; about 100 of these conversations were introduced at trial. These conversations were tricky for at least three reasons. First, many of the speakers used slang, or street jargon (e.g., "straps" for "guns" and "mix" for "procaine"). Second, many of the conversations were in code (e.g., "let's go play ball" for "let's do a cocaine deal"). Third, the speakers often stuck the syllable "iz" in the middle of words, resulting in a kind of "pig latin" (e.g., "kiz-ar" means "car," and "shiz-ootin" means "shooting").
Sergeant James Murphy prepared transcripts of the wiretap evidence with translations of the "pig latin" words in brackets and, at trial, he identified most of the taped conversations. He also gave the jury his opinion about the meaning of certain code words and slang terms. Lynn, Delpit, Jones, and Saunders argue that Sergeant Murphy's testimony went beyond interpretation to speculative, prejudicial, testimony. As Jones puts it, Sergeant Murphy's explanations and translations were only his opinions that the defendants were guilty. The defendants also insist that Sergeant Murphy's testimony was unnecessary, because the jury could easily have interpreted the tapes on its own, and they contend that the District Court committed reversible error by allowing the testimony. We disagree.
Saunders cites the following exchange as an example of Sergeant Murphy's allegedly over-creative interpretation:
[Thomas's Voice]: "You at least have a shade over some *14 motherf*****, man!"
Sergeant Murphy interpreted this statement:
I don't believe he liked . . . having to meet out in the open like that.
Delpit provides another example:
[Saunders's Voice] The ni**** got my, um, I can't really even like let ah, him handle his business cuz I can't get to no straps. He got like two of my straps. You know what I'm saying?
Sergeant Murphy, when asked what this meant, said:
Dennell Malone has two of Jermaine Saunders' guns.
He can't let Monster go out and take care of the business that he was up there for[,] to shoot some Vice Lords.
A third example: Saunders said, on tape, "He was fittin to liz-iz-iz-ay some down." Sergeant Murphy testified that to "lay some down" meant to kill someone. And when asked whom Saunders was talking about, Sergeant Murphy said, "The Vice Lords."
It is well established that experts may help the jury with the
meaning of jargon and codewords. See, e.g., United States v. Lowe, 9 F.3d
43, 47 (8th Cir. 1993), cert. denied,
That said, we agree that Sergeant Murphy appears on occasion to have
gone beyond merely translating straightforward terms. But even if the
Sergeant's testimony did, at times, "go [ ] beyond the plain meaning of the
recorded conversation[s]," we must still decide whether there is a
"significant possibility" that this testimony had a "substantial impact on
the jury." United States v. Sanchez-Sotelo,
It appears the defendants don't really believe this either. 5
Prado's brief notes that Sergeant Murphy had to interpret "Saundersease," a "combination of hybrid pig latin and street slang which is difficult to understand until one is accustomed to it." Jones concedes as much in his brief as well.
similar in kind to other evidence).
The District Court instructed the jury that it was not bound by the
opinion of any expert. See United States v. Daniels,
C. Other Evidence Issues
Several defendants raise other evidence-related claims. We will not overturn a trial court's decision concerning the admissibility of evidence absent abuse of discretion. See, e.g., United States v. Roulette, 75 F.3d 418, 423 (8th Cir. 1996).
1. Delpit's Prior Felony Convictions
Calvin Delpit was charged, in Count 4 of the indictment, with being a felon in possession of a firearm. 18 U.S.C. § 922(g)(1). The prior felonies alleged were credit-card fraud and rape. Delpit offered to stipulate to the existence and number of prior felonies, but the government declined. Delpit therefore decided to plead guilty to the felon-in- possession count. He now claims "[h]e had
no other choice" and argues that the District Court abused its discretion by not ordering the government to stipulate to his prior offenses or granting his motions to sever or to strike.
As Delpit candidly admits, "the government is not bound by . . . an
offer to stipulate and . . . it is not error to allow the government to
introduce more than one conviction in a case where only a single conviction
is necessary . . .." United States v. Garner,
Delpit decided it was in his best interest to plead guilty instead
of going to trial. No doubt, this was a difficult decision, but it was no
different from the hard choices made by thousands of defendants every day.
Perhaps, in an extraordinary case, a trial court's allowing the government
to refuse to stipulate to a prior conviction would create such clear and
compelling prejudice as to be an abuse of discretion, see United States v.
Bruton,
6
Delpit's reliance on United States v. Poore,
because the government accepted the stipulation, the district court
erred by not redacting references to the stipulated offense from
the indictment. Poore has nothing to do with whether the
government must accept a defendant's offer to stipulate. See
Poore,
2. Delpit's Nickname
Delpit's unfortunate nickname is "Monster." Before trial, he moved
to strike this nickname from the indictment. The District Court denied
this motion, correctly noting that "the use of this name is necessary to
fully identify . . . Delpit." Delpit now claims he was denied a fair trial
because the government's "continued and repeated reference to his nickname
was tantamount to testimony about his character . . .." We disagree. In
some cases, the use of a defendant's irrelevant nickname to suggest his bad
character or unsavory proclivities may be prejudicial, see, e.g., United
States v. Williams,
3. Mention of Murdered Police Officers
In one taped phone call, Saunders and Malone discussed how Malone, Delpit, and Prado were stopped by the police on their way to do a drive-by shooting. Malone complained that the officers who stopped them had their badge numbers covered with black tape. He said the tape was on the badges because of the "two clowns" (police officers) who "got smoked over on the other side of town." Malone also said the officers had harassed him, and that he was going to tell his lawyer that the officers had hidden their badge numbers. When this tape was played at trial, Sergeant Murphy explained that the officers had small black ribbons on their badges honoring two officers who had been killed recently in the line of duty. Prado
and Jones now argue that the District Court abused its discretion by allowing Sergeant Murphy to explain the ribbons. They claim that the mention of the two dead police officers was far more prejudicial than probative. Jones says that he was particularly prejudiced because he had nothing to do with the murder-for-hire plot. We disagree. Even if the reference to the murdered officers as "clowns" could have reflected badly on Malone and Saunders, we believe this isolated incident did not prejudice Prado or Jones.
4. Co-conspirators' Statements
Dennell Malone states that the District Court abused its discretion in admitting statements by his co-conspirators. This claim is poorly developed; it appears Malone is simply restating his argument that his trial should have been severed from his co-defendants'. He suggests that "because there were multiple conspiracies" (which, he argues, should have been tried separately) "the trial court should have been more scrupulous in determining the admissibility of what would otherwise be hearsay and give meaningful cautionary instructions." We do not know which statements Malone is objecting to; he identifies none. We can only note, once again, that, as Malone admits, the District Court was careful to instruct the jury that certain evidence was admissible only on the murder-for-hire counts, or against the murder-for-hire defendants, and not on the drug counts.
5. Guns Evidence
Jai Jones contends he was denied a fair trial because the District Court admitted various guns into evidence, guns which had nothing to do with the case against him. True, guns were admitted into evidence which had nothing to do with Jones, but the government never argued otherwise. And just because the guns were not relevant to the charges against Jones does not mean they were not admissible against his co-defendants. It is a simple fact of
joint trials that some evidence is relevant to and admissible against only some defendants. The proper response is to instruct the jury, as the District Court did in this case, that the evidence -- here, the guns -- is admissible against some defendants but not others. In any event, Jones has not proved, or even alleged with specificity, any prejudice, so there was no abuse of discretion.
D. Use of Transcript in Jury Deliberations
Jermaine Saunders argues that the District Court abused its
discretion by allowing the jury to use transcripts of the wiretapped
conversations during trial and deliberations. First, Saunders complains
that the government did not give the defendants enough time to evaluate the
transcripts to insure their accuracy. Next, he says that the transcripts
were not "objectively verifiable" translations of the recordings; instead,
they included the government's "prefabricated subjective interpretations
of conversations that were recorded in English." Saunders also insists
that there was no need for the transcripts, because the tapes themselves
were clear and audible, and the speakers were identified in Sergeant
Murphy's testimony. See United States v. McMillan,
It is well settled that the jury may use transcripts of wiretapped
conversations during trial and deliberations. See United States v. Byrne ,
tape (i.e., to take out the "iz" syllable, when appropriate). We also note that the defense lawyers prepared transcripts of their own, which were also given to the jury. For all we know, the jury never even looked at the government's transcripts, only at the defendants'. Most importantly, the District Court instructed the jury, diligently and repeatedly, as it was required to do, that the tapes themselves, not the transcripts, were evidence. See United States v. Foster, 815 F.2d 1200, 1203 (8th Cir. 1987). We assume the jury did as it was told.
E. Jury Instructions
Chanise Lynn and Dennell Malone object to the District Court's reasonable-doubt instruction, and Jai Jones and Malone contend that the District Court should have given a multiple-conspiracy instruction. We reject both these claims.
1. Reasonable-Doubt Instruction
The District Court instructed the jury as follows: Reasonable doubt is a doubt based on reason and common sense and not the mere possibility of innocence. A reasonable doubt is the kind of doubt that would make a reasonable person hesitate to act.
Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his or her own affairs. However, proof beyond a reasonable doubt does not mean proof beyond all possible doubt.
Lynn and Malone object to the "mere possibility of innocence" language. Lynn argues that the reasonable-doubt instruction "misdefined the government's burden" by suggesting a "more likely than not," or "clear and convincing," rather than a "beyond a
reasonable doubt," standard of proof. Malone raises similar objections.
The "beyond a reasonable doubt" standard is a bedrock due-process
requirement, but, like most constitutional standards, it does not come in
a ready-made package. See Victor v. Nebraska,
2. Multiple-Conspiracy Instruction
Jones and Malone insist that there were three drug conspiracies
involved in this case, and that the District Court erred in refusing to
give a multiple-conspiracy instruction. There may have been common actors,
he argues, but there were several separate criminal agreements. Malone
urges a similar argument. A trial court should give a multiple-conspiracy
instruction when, and only when, the evidence supports it. United States
v. Jackson,
The Malone/Saunders operation involved several players with different tasks, but Jones and Malone point to no evidence that undercuts the government's theory that these players and tasks were part of a single conspiracy, the one charged in Count 7. See
United States v. Cabbell, 35 F.3d 1255, 1262 (8th Cir. 1994) (although
"`various defendants entered the conspiracy at different times and
performed different functions, the conspiracy had one criminal objective:
to sell large quantities . . . [of] drugs'"); United States v. Lucht, 18
F.3d 541, 553 (8th Cir.) (separate transactions do not prove separate
conspiracies), cert. denied,
E. Sufficiency of the Evidence: Interstate Murder-for-Hire
Saunders, Thomas, Prado, Jones, and Lynn all claim that the evidence
was insufficient to support their convictions. In this Part, we discuss
only Saunders's, Lynn's, and Prado's challenges to their murder-for-hire
convictions (Counts 1 and 2); we discuss the other sufficiency-of-the-
evidence arguments in Part G, infra. As the defendants are well aware, it
is hard to win on an insufficiency claim: they must show that no
reasonable jury could have found them guilty beyond a reasonable doubt.
We review and interpret the evidence in the light most favorable to the
jury's verdict. See United States v. Horne,
The defendants face long prison terms. Although we will not recite all the evidence introduced at trial, we have reviewed that evidence closely and given careful consideration to the defendants' arguments. For the reasons outlined below, we affirm the convictions of Jai Jones, Jermaine Saunders, and Larry Thomas. We also affirm Chanise Lynn's possession-with-intent-to-distribute conviction. We reverse Lynn's and Zackarrie Prado's murder-for-hire convictions. Lynn and Prado may well have aided and abetted an attempted murder, and conspired to commit murder, but these are not federal crimes.
Our Constitution is a charter for a federal government of
*24
limited powers, and under this charter the "States possess primary
authority for defining and enforcing the criminal law." Engle v. Isaac,
Whoever travels in or causes another (including the intended victim) to travel in interstate or foreign commerce, or uses or causes another (including the intended victim) to use the mail or any facility in interstate or foreign commerce, with intent that a murder be committed . . . as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value . . .
[is guilty of a crime against the United States].
So, to convict the defendants under this statute, the government had to
prove that they (1) travelled or caused another to travel in interstate
commerce, (2) with the intent that a murder be committed, (3) for hire.
United States v. McGuire,
This statute is relatively straightforward, both in what it prohibits and in what it does not reach. It does not prohibit murder or attempted murder. Instead, it outlaws using interstate-commerce facilities with the intent that murder-for-hire be committed. Once the interstate-commerce facility is used with the required intent the crime is complete. One who travels or causes another to travel in interstate commerce with the necessary
murderous intent need not do anything else to violate the statute. See
[7]
McGuire,
would be dispelled by the clear legislative history:
The gist of the offense is the travel in interstate commerce or the use of the facilities of interstate commerce or of the mails with the requisite intent and the offense is complete whether or not the murder is carried out or even attempted.
S. Rep. No. 225, 98th Cong., 2d Sess. 306 (1984), reprinted in, Compare § 1958(a) with the Travel Act, 18 U.S.C. § 1952(a), 7
which provides in part:
(a) Whoever travels in interstate or foreign commerce or uses the mail or any facility in interstate or foreign commerce, with intent to--
(1) distribute the proceeds of any unlawful activity; or (2) commit any crime of violence to further any unlawful activity; or
(3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity, and thereafter performs or attempts to perform-- (A) an act described in paragraph (1) or (3) [shall be punished]; or
(B) an act described in paragraph (2) [shall be punished].
(emphasis added).
"[Whoever violates the statute] shall be fined under this 8
title or imprisoned for not more than ten years, or both; and if personal injury results, shall be fined under this title and imprisoned for not more than twenty years, or both; and if death results, shall be punished by death or life imprisonment, or shall be fined not more than $250,000, or both." 18 U.S.C. § 1958(a). *26 1984 U.S.C. Cong. & Admin. News 3182, 3485.
1. Jermaine Saunders
To convict Saunders of violating § 1958(a), the government had to
prove that (1) Saunders caused Delpit to travel in interstate commerce, (2)
he or Delpit intended that a murder be committed in violation of Minnesota
law, and (3) the murder was to be committed for hire. McGuire,
2. Chanise Lynn
Ms. Lynn helped Delpit, at Saunders's request, seek out Vice Lords to kill. By this point, though, the § 1958(a) violation was complete. [9] Malone and Saunders had already caused Delpit to travel, and Delpit had already travelled, with the requisite intent that a murder-for-hire be committed. The government insists that
The evidence suggested that Delpit had arrived in the Twin 9
Cities by August 24, and that Chanise Lynn was recruited as Delpit's driver on August 26 and 27.
"[t]he attempted murder-for-hire and the related conspiracy continued for another week and Lynn played an integral role in it," but that does not matter. Section 1958(a) is not a murder statute; it is a carefully-drafted federal criminal law of constitutionally limited scope.
Because the crime was complete when Delpit arrived in Minnesota, Lynn
did not--she could not--aid or abet the crime's perpetrators. If anything,
she was an accessory after the fact (for which she was not charged). As
[10]
Chief Judge Posner noted recently, Judge Learned Hand's "canonical"
definition of aiding and abetting requires "not only that the defendant
have aided his principal to commit a crime but also that he have wanted the
principal to succeed in committing it. Obviously this rules out . . .
cases in which the defendant was a mere accomplice after the fact . . .."
United States v. Ortega,
1002 (8th Cir. 1994): "`The very definition of the crime
[accessory after the fact] also requires that the felony not be in
progress when the assistance is rendered because then [the person]
who renders assistance would aid in the commission of the offense
and be guilty as a principal.'" Id. at 1004 (quoting United States
v. Barlow, 470 F.2d 1245, 1252-53 (D.C. Cir. 1972)); see United
States v. Innie,
Circuit Model Jury Instructions § 5.01 & n.4 (West 1996) (citing United
States v. Jarboe,
It follows that Lynn's conviction for conspiracy to violate § 1958(a)
must also be reversed. To prove a conspiracy, the government needed to
prove an agreement, between at least two people, the objective of which was
to violate federal law. See United States v. Jenkins,
This case is different from our recent decision in United 11 States v. Baker, 82 F.3d 273, 275-76 (8th Cir. 1996). In that case, Baker, a police officer, extorted a payment from an arrested
motorist, who withdrew money from an automated teller machine (ATM) to pay the bribe. Baker was convicted under the Travel Act, 18 U.S.C. § 1952(a), and argued on appeal that his act of extortion lacked the required effect on interstate commerce. This Court disagreed, noting that the ATM was a "facility in interstate or foreign commerce," which Congress was entitled to regulate and to protect, even from wholly intrastate activity. In Baker, the defendant argued that the United States could not prosecute him because there was no jurisdictional "hook," no "nexus" with interstate commerce. In this case, though, the question is simply whether or not the government introduced sufficient evidence to permit a reasonable jury to conclude that the elements of a § 1958(a) violation had been proved against Lynn.
3. Zackarrie Prado
Prado was acquitted on the drug-conspiracy count (Count 7), but, like Lynn, convicted of the interstate murder-for-hire charges (Counts 1 and 2). Prado makes the implausible argument that the government's wiretap evidence shows only that he was concerned about Vice Lords harassing his mother, not that he had anything to do with an assassination scheme. We think it quite clear that Prado, Malone, and Delpit planned to kill some Vice Lords, and that Prado knew exactly what was going on. We reverse his murder-for-hire convictions, though, for the reason discussed above: The government did not prove that Prado committed a federal crime. As with Chanise Lynn, the government failed to prove that Prado violated § 1958(a), or that he conspired to do so, because there was no evidence that Prado had any involvement in the murder plot before the federal crime with which he was charged was complete.
F. Sufficiency of the Evidence: Other Convictions Larry Thomas, Jai Jones, Chanise Lynn, and Jermaine Saunders all argue that the evidence against them was insufficient to support their drug-related convictions. We affirm the convictions.
1. Jermaine Saunders
Saunders contends that his conviction for using or carrying a firearm
during a crime of violence, 18 U.S.C. § 924(c)(1), must be reversed
because, under Bailey v. United States,
As for Count 8 (attempted possession with intent to distribute the
15.6 kilograms of cocaine seized in New Mexico), Saunders again insists
that Sgt. Murphy's testimony and the wiretap evidence are insufficient to
support his conviction. Saunders claims the government presented no
evidence connecting the New Mexico seizure to his alleged drug operation
in Minnesota. We disagree. To convict Saunders on this Count, the
government had to prove that he "intended to possess and distribute the
cocaine, and that he took a substantial step toward that goal . . .."
United States v. Searing,
2. Larry Thomas
Thomas contends that the evidence against him was insufficient to support his convictions for conspiracy to distribute cocaine base (Count 7), 21 U.S.C. § 846, and distribution of cocaine base (Count 9), 21 U.S.C. § 841(a)(1). Regarding Count 9, Thomas says Tim Nelson's testimony that Thomas sold him drugs was the only evidence against Thomas, and, therefore, the jury's verdict was unreasonable. Nelson told the jury that Larry Thomas was "one of the nicest persons that you would want to know," but he also testified that he bought about 1.5 kilograms of crack from Thomas over a six-month period. Thomas thinks the jury should not have believed Nelson, and recites a 10-point litany why Nelson's *31 testimony is unreliable (e.g., Nelson was a paid informant, Nelson cut a deal to avoid prosecution, Nelson did not wear a body wire, etc.). But, as Thomas admits, these points came out, in one form or another, at trial, and it is the jury's business whom it chooses to believe.
Next, Thomas claims his conspiracy conviction (Count 7) must be reversed because the only evidence against him was (1) that a police officer saw him and Malone exchange a bag (an exchange Thomas insists was perfectly innocuous) and (2) coded phone conversations, none of which, Thomas contends, connect him to a drug conspiracy. Thomas says the calls were about women, sports, and a truck sale, not drugs. In the end, though, Thomas is arguing that the jury was unreasonable for believing the government's "spin" on the evidence instead of Thomas's.
As we said above, we think the evidence against Thomas shows that he
was buying drugs from the Saunders/Malone operation and selling drugs to
others. The question remains, was he a part of the conspiracy charged in
Count 7 of this indictment? In this Circuit, a series of drug deals for
resale can prove a conspiracy to distribute. See United States v. Eneff,
3. Jai Jones
Jones was convicted of the Count 7 conspiracy and, like Thomas, contends the evidence was insufficient to support his conviction. He says his conviction was based solely upon his transportation of procaine, "a lawful substance," and on approximately five telephone conversations with Saunders about obtaining the procaine. In effect, Jones admits he transported the procaine, but insists that he thought what he was doing was legal. But the jury heard evidence that Jones talked in code about the procaine; that he took precautions, on instructions from Malone, to avoid being caught with it; and that he delivered it to Malone and Saunders, who were waiting for the procaine so they could make crack. The jury also heard evidence of Jones's experience with drug-dealing, and apparently thought he knew exactly what the procaine was for. The evidence supports the jury's verdict.
4. Chanise Lynn
Lynn also argues that the evidence does not support her conspiracy conviction. We disagree. The evidence suggested that Lynn was a regular courier for the Saunders/Malone operation; that she went to California, on Saunders's orders, to get procaine; and that she occasionally kept contraband and money for the conspiracy at her residence. A reasonable jury could have found that Lynn knew of, and intentionally joined, the drug conspiracy charged in Count 7.
Chanise Lynn also contends the evidence does not support her conviction for possession with intent to distribute crack. The government found and seized 3.7 grams of crack -- 20 individually wrapped rocks -- at her residence. At trial, Lynn simply denied
that the drugs were hers. She now argues that 3.7 grams is too small an amount to support the inference that she intended to distribute the crack. It is a close call, but we disagree.
Possession of such a small amount of drugs, standing alone, is an
insufficient basis from which to infer intent to distribute. United States
v. Buchanan,
The government introduced no evidence, from among the many wiretapped conversations or from their search of her residence, that Lynn ever dealt drugs herself. But she was a member of a drug-dealing conspiracy, and the government's expert witness testified that the drugs found in her room were packaged for distribution. Her defense at trial was that the drugs were not hers, but the jury obviously did not believe her. We do not know how we would have voted if we had been on the jury, but we cannot *34 quite say that a reasonable juror could not have found beyond a reasonable doubt all the elements of possession with intent to distribute.
G. Sentencing Issues
Dennell Malone, Larry Thomas, and Jermaine Saunders challenge their sentences. We reject most of their arguments, but remand Saunders's case for resentencing because he did not organize or lead five "participants" in the murder-for-hire plot.
1. Crack/Cocaine Powder Disparity
Under the Sentencing Guidelines, a gram of crack cocaine is
"worth," for sentencing purposes, 100 times as much as a gram of cocaine
powder. U.S.S.G. Guideline Manual § 2D1.1. This is a harsh rule. Malone
argues that the 100-to-1 ratio is "obsolete," and Thomas insists it is
unconstitutional because of its disparate impact on black defendants. We
are bound by precedent to reject these arguments. See United States v.
Jackson,
2. Evidentiary Hearing
Malone complains that he was sentenced without an evidentiary hearing. He failed, though, to move for an evidentiary hearing as required by the District Court's Local Rule 83.10(f) ("The interested party must file a separate Motion for Evidentiary Hearing contemporaneous with submission of the [sentencing] position pleading.") True, in his "Position Paper for Sentencing," Malone disputed his liability for the 15.6 kilograms of cocaine seized in Utah, and added that "this denial/challenge precipitates an evidentiary hearing." The government responded to Malone's position paper by noting that he had not filed the required motion for evidentiary hearing. Although thus warned, Malone never filed *35 such a motion, nor did he say anything about the need for an evidentiary hearing at his sentencing. See United States v. Oehlenschlager, 76 F.3d 227, 230-31 (8th Cir. 1996) ("[W]e will not permit the defendant to sandbag the district court by contesting valuation without submitting a request for an evidentiary hearing, as required by local rule.")
In his position paper, Malone claims he should not have been
sentenced for the 15.6 kilograms of cocaine seized in Utah. He also argues
that he is not liable for all the drugs involved in Counts 10 and 11 (drug-
dealing using juveniles) or Count 7. Malone is correct that a PSR is "not
a legally sufficient basis for making findings on contested issues of
material fact," because the government must prove, by a preponderance of
the evidence, all facts relied on by the sentencing court. United States
v. Hammer,
This concern does not apply here. At Malone's sentencing, the District Court made it clear that it was relying on evidence and testimony from the trial, and on the jury's verdict. Unlike the PSR, the testimony [12]
presented at trial is evidence. See United States v. Greene,
After considering the objections in Malone's position paper, 12
the Court "adopt[ed] the findings of the jury." Malone Sentencing Hearing, at p. 8 (June 12, 1995).
presentence report."). The jury found Malone guilty, beyond a reasonable
doubt, of the conduct on which Malone's sentence is based, and the Court
heard testimony at trial concerning the drug quantities involved with that
conduct. Even if we were inclined to overlook Malone's failure to comply
with the local rule, an evidentiary hearing was not required in this case.
See United States v. Simpkins,
3. "Role in the Offense" Enhancement
In accordance with U.S.S.G. § 3D1.2-.3, the District Court grouped
the charges against Malone and Saunders into three groups of "closely-
related counts," and calculated the adjusted offense levels appropriate for
each group. Group 1 included the murder-for-hire counts; Group 2 included
the drug-trafficking counts; and Group 3 consisted of the cellular-phone
fraud counts. Malone and Saunders object to their four-level "leadership
role" enhancements for Groups 1 and 2. U.S.S.G. § 3B1.1(a) provides for
such an increase "[i]f the defendant was an organizer or leader of a
criminal activity that involved five or more participants . . .." Our
Court has "broadly defined" the terms "organizer" and "leader." United
States v. Ortiz-Martinez,
Regarding Malone's role in the drug-trafficking offense group, the
evidence showed that he "directed or procured the aid of underlings," and
that he was responsible for organizing others for the purpose of carrying
out crimes. See United States v. Rowley,
dealing.
Saunders complains that the District Court gave him a four-level role
enhancement for the drug-dealing offenses but "offered neither at
sentencing nor in the written Statement any additional findings of fact to
support this conclusion." The District Court found that Saunders was
convicted for his role in a drug conspiracy involving at least five others,
and that he played an organizing and leadership role. For example,
[13]
Saunders sent Chanise Lynn to Los Angeles to procure procaine for the
manufacture of crack cocaine. While we do not pretend that the line
between being an "organizer or leader," on the one hand, and a "manager or
supervisor," on the other, is always clear, see Ortiz-Martinez,
Saunders and Malone also received four-level role-in-the-offense enhancements for Offense Group 1 (murder-for-hire). At Saunders's sentencing hearing, the District Court commented, "[i]t appears that [Saunders] was an organizer or leader of this criminal activity which involved five or more participants, . . . [including] Malone, Delpit, Prado, and Lynn." The Court also found that the enhancement was proper in Malone's case, "based upon the evidence that [was] submitted in this matter . . .." However, because the District Court counted Prado and Lynn as "participants" for purposes of Offense Group 1, we think it erred in imposing four-level enhancements for that offense group.
It is true that a person need not have been convicted to count 13 At Saunders's sentencing, the Court noted that "[t]he trial
testimony in this matter clearly shows the leadership role of the defendant as it applied to these proceedings." Saunders Sentencing Hearing, at p. 17 (June 12, 1995).
as a "participant" under § 3B1.1; a "participant" is "a person who is
criminally responsible for the commission of the offense . . .." Id. at
cmt. 1; see United States v. Freeman,
In Malone's case, though, even if he had received no enhancement at all for his role in the Group 1 offenses, he would still be facing a mandatory life sentence. It is not necessary, therefore, to remand [14]
Malone's case for resentencing. Saunders's case is different. Had he received no role enhancement for the murder-related group of offenses, he would have been eligible for a 30-year sentence. This is not to say [15] that, at resentencing,
Malone's Group 1 adjusted offense level was 36; his Group 2 14
adjusted offense level was 43, and his Group 3 level was 8. The District Court correctly selected the greater of these three levels (43), and increased it by one level under § 3D1.4 to arrive at a total offense level of 44. Had Malone received no enhancement for his role in the Group 1 offenses, his Group 1 adjusted offense level would have been 32, and his total offense level would have been 43, not 44. See § 3D1.4(b). An offense level of 43 calls for a mandatory life sentence. 15
Saunders's adjusted offense level for Group 1 (with the four- level role enhancement) was 36; his adjusted offense level for Group 2 was 42; and for Group 3, 10. The highest adjusted offense level was 42, and the District Court increased it by one under § 3D1.4 for a total offense level of 43. Had Saunders not received any role enhancement for Group 1, his total offense level would have been 42, § 3D1.4(c), which would have permitted the District Court to impose a 30-year sentence.
Saunders won't again receive a four-level enhancement. Section 3B1.1(a) permits a four-level enhancement when a defendant is the leader or organizer of a criminal activity that is "otherwise extensive," and it may be that such an enhancement is appropriate in Saunders's case. That is a question for the District Court to decide.
4. Saunders's Relevant Conduct
The District Court held Saunders responsible for 532.3 grams of crack
involved in Counts 10 and 11 (the Counts involving Malone's use of
juveniles in drug-dealing). The Court found that these drugs were part of
the Saunders/Malone operation -- part of the overall conspiracy -- and were
therefore attributable to Saunders. Saunders contends that the evidence
does not support this finding. He admits, though, that he may be sentenced
for drug quantities which are part of the conspiracy, and are reasonably
foreseeable. See U.S.S.G. § 1B1.3(a)(1)(B) (A defendant may be sentenced
for "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 . . .."). It is not necessary that
Saunders have participated in distributing the drugs himself, or even that
he actually knew about the drugs, only that the drug quantities were
reasonably foreseeable to him. See Darden,
Saunders Sentencing Hearing, at p. 18 (June 12, 1995). 16
III.
We affirm the convictions and sentences of Jai Jones, Larry Thomas, Calvin Delpit, and Dennell Malone; reverse Jermaine Saunders's four-level role-in-the-offense enhancement on the murder-for-hire charge; affirm in part and reverse in part Chanise Lynn's convictions; and reverse Zackarrie Prado's interstate murder-for-hire conviction. We remand this case to the District Court for further proceedings consistent with this opinion. Saunders and Lynn should be re-sentenced, and the indictment against Prado should be dismissed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.