UNITED STATES of America, Plaintiff-Appellee, v. John Wesley MOREHEAD, Sr., John Wesley Morehead, Jr., and Jackie Ray Hill, Defendants-Appellants.
Nos. 91-7003, 91-7009 and 91-7010.
United States Court of Appeals, Tenth Circuit.
March 4, 1992.
959 F.2d 1489
Judge Reinhardt‘s opinion further argues that as a practical matter what happened is exactly the same as if the certificate holder had waived the emergency procedures and sought review under the ordinary nonemergency procedures, thereby “enlarg[ing] beyond the statutory period the time during which the emergency revocation of a license may remain in effect.” Perhaps, but there is no provision in the regulations for any such election; the certificate holder may request an extension if he wants more time to prepare his defense, but there is no provision for waiving the emergency time limits. Nor does it follow, as Judge Reinhardt‘s opinion holds, that “[b]ecause the actions of the board denied Grant the benefit of the emergency rules, it would be unfair to require him to comply with the shortened filing requirements.” Neither Grant nor any other certificate holder aggrieved by the Board‘s failure to render a decision within 60 days is without remedy. Under the Administrative Procedure Act, the certificate holder may petition a district court to “compel agency action unlawfully withheld or unreasonably delayed.”
I therefore respectfully dissent.
David Booth, Tulsa, Okl., for John Wesley Morehead, Jr.
Vester Songer, Hugo, Okl., for Jackie Ray Hill.
Sheldon J. Sperling, Asst. U.S. Atty. (John Raley, U.S. Atty., with him on the brief), Muskogee, Okl., for plaintiff-appellee.
Before MOORE and BALDOCK, Circuit Judges, and SPARR, District Judge.*
BALDOCK, Circuit Judge.
Defendants-appellants John Wesley Morehead, Sr. (“Senior“), John Wesley Morehead, Jr. (“Junior“), and Jackie Ray Hill appeal their convictions and sentences following a jury verdict on various conspiracy and substantive charges relating to the cultivation, distribution and possession of marijuana and the use of firearms. We have jurisdiction under
This prosecution stemmed from the inadvertent discovery by state law enforcement officers of marijuana plants at Senior‘s residence. Senior lived in a house located in a rural section of southeastern Oklahoma near Hugo. Junior, who was Senior‘s eighteen year old son, lived in Hugo with his mother but stayed with Senior on weekends. While attempting to execute arrest warrants for Senior and Junior on an unrelated charge, officers observed marijuana plants in an open trailer and inside a camper and shop building behind the house. Officers subsequently arrested Hill, the boyfriend of Senior‘s sister, who was seen fleeing from a nearby wooded area just north of Senior‘s house, and Wesley Lane Morehead (“Lane“), Senior‘s fifteen year old son, who was hiding in some bushes in the woods. During a search of Senior‘s residence, officers discovered 7.8 kilograms of dried marijuana, several guns, two-way radios and police scanners in the house, and 360 marijuana plants from four to ten inches tall growing in paper cups in the trailer, camper and shop building. Senior and Junior turned themselves in to state authorities a few days later.
Following a jury trial, Senior was convicted of counts 1, 2, 3, 4, 5, 6 and 7, but he was acquitted of count 9—the substantive firearms count. Junior was convicted of counts 1 and 2—the marijuana and firearms conspiracies—while he was acquitted of all the substantive marijuana counts and the substantive firearms count. Hill was convicted solely on count 2—the firearms conspiracy—and he was acquitted of all remaining counts.
Senior challenges the lawfulness of the search of his residence. He also contends that fundamental error existed in allowing the prosecution to select the federal forum. Hill and Junior both challenge their convictions based on insufficient evidence. Senior and Junior each raise different multiplicity arguments—Senior contends that counts 5 and 6 are multiplicious, and Junior contends that counts 1 and 2 are multiplicious. Finally, all three Defendants allege error in the application of the sentencing guidelines.
I.
Senior challenges the search by law enforcement officers on essentially two grounds. He argues that the initial warrantless intrusion by sheriff‘s officers violated the Fourth Amendment. Additionally, he argues that the affidavit in support of the search warrant was insufficient. We find no merit in either argument.
A.
On Friday, April 13, at approximately 4:00 or 4:30 p.m., Choctaw County Undersheriff Mike Mitchell, along with Deputy Sheriff Jimmy Long, went to Senior‘s house to enforce arrest warrants for Senior and Junior on an unrelated burglary charge. There was a car in the carport and a pickup truck with a trailer attached parked in front of the house just south of the property. After receiving no response at the front door, the officers walked to the back of the house. From the back corner of the house, they noticed a trailer approximately 50 feet from the back door of the house. The trailer was a converted pickup truck bed which had four foot plywood siding attached to it on three sides. From a distance of approximately 50 feet, the officers observed marijuana plants in the trailer. After a closer inspection of the trailer, the officers then approached the nearby shop building and looked through the window observing marijuana plants growing in paper cups under fluorescent lights. Long then looked through the window of the camper, also located in the backyard, and observed more marijuana plants growing under florescent lights.
Senior contends that the officers’ act of walking to the back of the house and looking through the windows of the shop building and camper violated the Fourth Amendment. The curtilage of a house is protected under the Fourth Amendment to the extent that “an individual reasonably may expect that the area in question should be treated as a home itself.” United States v. Dunn, 480 U.S. 294, 300, 107 S.Ct. 1134, 1139, 94 L.Ed.2d 326 (1987) (citing Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 1742, 80 L.Ed.2d 214 (1984)). However, even if we assume that Senior could reasonably expect the area from where the officers made their observations “harbors the intimate activity associated with the sanctity of a man‘s home and the privacies of life,” id. (citations and internal quotations omitted), the officers’ limited intrusion was justified in their execution of a valid arrest warrant.
Senior does not challenge the validity of the arrest warrant1 but rather contends that it did not authorize a search of the premises. “[F]or Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” Payton v. New York, 445 U.S. 573, 603, 100 S.Ct. 1371, 1388, 63 L.Ed.2d 639 (1980). If a law enforcement officer may enter a suspect‘s house to execute an arrest warrant when the officer has reason to believe the suspect is inside, the officer most certainly may walk to the back of the house and peer through the windows of a shop building and camper located on the property when he has reason to believe that the suspect is on the premises. See United States v. Pallais, 921 F.2d 684, 691 (7th Cir.1990) (entire “complex of buildings” constituted suspect‘s residence thereby permitting officers with valid arrest warrant to enter house even though defendant slept in apartment above detached garage). The officers knew that Senior resided at the house, and the presence of a car in the carport and a truck in front of the house gave the officers reason to believe that Senior was on the premises. Therefore, the mere act of walking to the back of the house cannot be considered unreasonable given that the officers were executing an arrest warrant.
While there was some dispute before the district court over whether the officers could see 8-10 inch marijuana plants in a trailer with four foot siding from their vantage point near the house some 50 feet away, the district court resolved this factual dispute in favor of the government. In reviewing the denial of a motion to suppress, we must accept factual findings by the district court unless they are clearly erroneous. United States v. Neu, 879 F.2d 805, 807 (10th Cir.1989). Given that there was evidence that the officers‘s vantage point was slightly elevated from the location of the trailer thus permitting the officers to look down into the trailer, and that some of the plants were sticking through cracks between the sideboards, we cannot say that the finding by the district court was clearly erroneous.
Finally, the fact that the officers looked through the windows of the shop building and camper did not violate the Fourth Amendment. From his vantage point at the trailer, Undersheriff Mitchell observed an illuminated light inside the shop building. Similarly, Deputy Long observed a light in the camper. This could have reasonably led the officers to believe that Senior was inside the shop building or camper. Therefore, assuming arguendo that Senior
B.
After viewing marijuana plants in the trailer, shop building and camper, the officers obtained a warrant authorizing a search of the “[r]esidence, outbuildings and vehicles” located on the property. The affidavit submitted by Mitchell in support of the warrant attested to his and Deputy Long‘s observations of marijuana in the open trailer and shop building. The affidavit recited Mitchell‘s experience in the recognition and identification of marijuana plants. The affidavit also indicated that shots had been fired at the scene. The affidavit stated that Deputy Long had seen two suspects in the area and they had dropped their weapons during a chase. Finally, the affidavit claimed that a nighttime search was necessary to secure the officers’ safety.
Senior makes two arguments as to the insufficiency of the search warrant. First, he contends that the affidavit was not sufficient to justify a nighttime search, nor did the issuing magistrate make a particular finding that a nighttime search was justified. Second, he contends that the affidavit contains factual inaccuracies thereby rendering it insufficient.
1.
In the Fourth Amendment context, “the factor of a nighttime search is sensitively related to the reasonableness issue.” United States v. Gibbons, 607 F.2d 1320, 1326 (10th Cir.1979). However, the record does not support Senior‘s contention that the search was conducted at night. The district court found that the search began between 7:00 and 7:30 p.m. when it was still daylight. The sole evidence on this issue was the testimony of Undersheriff Mitchell and Deputy Long who both testified that at the time the search began it was not dark. Given that this is the only evidence in the record, we cannot say that the district court‘s finding was clearly erroneous.
Assuming arguendo that there was some evidence that the search did not begin until night, Senior cites no controlling authority supporting the unreasonableness of such a search under the circumstances. Senior directs our attention to Oklahoma law which requires that a search warrant be executed during the day “unless the affidavits be positive that the property is on the person, or in the place to be searched, and the judge finds that there is a likelihood that the property named in the search warrant will be destroyed, moved or concealed.”
Both parties agree that the search was “state in character.” Indeed, the warrant was issued by a state judge, upon application by a state officer, executed by state officers, and returnable to the issuing state judge. See Gibbons, 607 F.2d at 1325; United States v. Millar, 543 F.2d 1280, 1284 (10th Cir.1976). When a search is state in character, “the warrant and affidavits need only conform to federal constitutional requirements in order for the resulting evidence to be admissible in a federal prosecution.” Gibbons, 607 F.2d at 1325 (citations omitted). See also Millar, 543 F.2d at 1283. Indeed, “violation of state law ... would not render the evidence obtained inadmissible in federal courts.” On Lee v. United States, 343 U.S. 747, 754-55, 72 S.Ct. 967, 972, 96 L.Ed. 1270 (1952) (citing Olmstead v. United States, 277 U.S. 438, 468, 48 S.Ct. 564, 569, 72 L.Ed. 944 (1928)). Given the fact that the marijuana could have readily been moved or destroyed, and that neither Senior or Junior were in custody at the time, the officers’ search, even if it was conducted in the evening, was not unreasonable.
2.
Senior next contends that the affidavit contained “factually incorrect information” and “erroneous assertions.” Our review of the affidavit reveals two inaccuracies. First, the affidavit states that shots had been fired at the scene when, in fact, only one shot was fired at the scene, and this was by Deputy Long during his pursuit of Hill. Second, the affidavit indicated that Deputy Long had seen two suspects in the area and they had dropped their weapons during a chase when, in fact, Deputy James Day, one of the officers who responded to Mitchell and Long‘s request for assistance, retrieved the two weapons, and there was no indication that the weapons had been dropped by the suspects during a chase. Even if Mitchell intentionally submitted these inaccuracies to the issuing magistrate, a point which finds no support in the record, it would make no difference to the validity of the warrant. See Franks v. Delaware, 438 U.S. 154, 171-72, 98 S.Ct. 2674, 2684-85, 57 L.Ed.2d 667 (1978) (when affidavit contains materially false information which was submitted intentionally or with reckless disregard for the truth by law enforcement officer, court should redact false information and review affidavit de novo to determine whether remaining allegations establish probable cause). See also United States v. Ross, 920 F.2d 1530, 1533 (10th Cir.1990). Absent the allegations of shots being fired, or suspects dropping their weapons during a chase, the affidavit, established probable cause for the search.
In Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983), the Court “reaffirm[ed] the totality-of-the-circumstances analysis that traditionally has informed probable-cause determinations.” Id. at 238, 103 S.Ct. at 2332 (citations omitted). The Court articulated the standard for both the issuing magistrate and the reviewing court:
The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him ... there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of the reviewing court is simply to ensure that the magistrate had a substantial basis for ... concluding that probable cause existed.
Id. at 238-39, 103 S.Ct. at 2332 (internal quotation and citation omitted). “[V]iew[ing] the affidavit in a common-sense, nontechnical manner,” and giving “deference ... to the prior determination of probable cause by the issuing authority,” United States v. Barrera, 843 F.2d 1576, 1581 (10th Cir.), cert. denied, 488 U.S. 859 (1988), we hold that the affidavit in support of the warrant was sufficient. The officers’ observations of marijuana plants in the trailer and shop building adjacent to the residence by the affiant officer, provide a substantial basis for the issuing magistrate‘s conclusion that the affidavit as a whole established by a fair probability that contraband or evidence of a crime would be found on the property.
II.
Senior contends that his conviction should be reversed or he should be given a downward departure because of fundamental error due to the prosecution‘s choice of a federal forum. All three Defendants initially were charged in state court, but these charges were dismissed, and Defendants were indicted by a federal grand jury. Senior argues that because a federal conviction entails more severe consequences than a state conviction in terms of the length of the sentence and mandatory imprisonment, there must be some articulated standard, other than the “whim of the prosecutors,” in selecting the forum. Senior does not allege that the government‘s choice of a federal forum was based on an impermissible classification or Senior‘s exercise of a legal right. See Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 1531, 84 L.Ed.2d 547 (1985).
the potential for abuse requires that [the government‘s forum selection] must be controlled by ... internal or external guidelines, [and] unless there exists a definite and formulated standard with which to follow in selecting the forum, the unbridled discretion by the prosecution violates an individuals right to due process and equal protection of the law.
While the consequences to Senior from a federal conviction are certainly more severe as compared to a state conviction, this factor alone does not render the government‘s choice of a federal forum unconstitutional. “[S]o long as the prosecutor has probable cause to believe the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file ... generally rests entirely in his discretion.” Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978). Although “there are undoubtedly constitutional limits” upon the exercise of prosecutorial discretion, id. at 365, 98 S.Ct. at 669, we do not believe that this case approaches those limits. In the absence of proof that the choice of forum was improperly motivated or based on an impermissible classification as a matter of constitutional law, the prosecutor‘s discretion to prosecute in a federal rather than a state forum does not violate due process or equal protection notwithstanding the lack of any articulated guidelines for the exercise of such discretion. United States v. Andersen, 940 F.2d 593, 596-97 (10th Cir.1991) (lack of “any articulated policy or written guidelines” in deciding to prosecute in federal rather than state court does not violate due process). See also United States v. Raymer, 941 F.2d 1031, 1036-39 (10th Cir.1991) (rejecting argument that federal prosecution was merely a “sham and a cover” for an impermissible state prosecution).
III.
Both Junior and Hill challenge their conspiracy convictions based on insufficient evidence. In reviewing the sufficiency of the evidence to sustain a criminal conviction, our task is to determine whether the “evidence—both direct and circumstantial, together with reasonable inferences to be drawn therefrom—is sufficient if, when taken in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt.” United States v. Hooks, 780 F.2d 1526, 1531 (10th Cir.), cert. denied, 475 U.S. 1128 (1986). See also Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); United States v. Leaverton, 835 F.2d 254 (10th Cir.1987). This deferential standard recognizes that it is “the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. See also United States v. Record, 873 F.2d 1363, 1367 (10th Cir.1989).
“The evidence in a conspiracy prosecution must show that two or more persons agreed to violate the law, that the defendant knew at least the essential objectives of the conspiracy, and that the defendant knowingly and voluntarily became a part of it.”2 United States v. Fox, 902 F.2d 1508, 1514 (10th Cir.), cert. denied, 111 S.Ct. 199 (1990) (citing United States v. Savaiano, 843 F.2d 1280, 1294 (10th Cir. 1988)). See also U.S. v. Esparsen, 930 F.2d 1461, 1471 (10th Cir.1991) (conspiracy conviction requires government to prove that “(1) a conspiracy existed, (2) the defendant knew the essential objectives of the conspiracy, and (3) the defendant knowingly and voluntarily became a part of it“).
“The core of a conspiracy is an agreement to commit an unlawful act.” Esparsen, 930 F.2d at 1471. See also United States v. Falcone, 311 U.S. 205, 210, 61 S.Ct. 204, 206, 85 L.Ed. 128 (1940). Proof of an agreement rarely is susceptible to direct evidence, and may be inferred from the facts and circumstances of the case. Iannelli v. United States, 420 U.S. 770, 777 n. 10, 95 S.Ct. 1284, 1289 n. 10, 43 L.Ed.2d 616 (1975); Fox, 902 F.2d at 1514; U.S. v. Kendall, 766 F.2d 1426, 1431 (10th Cir.1985). “[T]he critical inquiry is whether the circumstances, acts, and conduct of the parties are of such a character that the minds of reasonable men may conclude therefrom that an unlawful agreement exists.” Kendall, 766 F.2d at 1431.
In determining whether an agreement can be reasonably inferred from “the circumstances, acts, and conduct of the parties,” we recognize that a defendant‘s “guilt is always dependent on personal and individual conduct, not on mere association or unknowing involvement.” United States v. Horn, 946 F.2d 738, 741 (10th Cir.1991) (citing Kotteakos v. United States, 328 U.S. 750, 773, 66 S.Ct. 1239, 1252, 90 L.Ed. 1557 (1946); United States v. Harrison, 942 F.2d 751, 755-56 (10th Cir.1991); Fox, 902 F.2d at 1514). In order to reasonably infer such an agreement, the Defendants’ conduct must be interdependent with the conduct of the alleged coconspirators. Horn, 946 F.2d at 740; United States v. Daily, 921 F.2d 994, 1007 (10th Cir.1990), cert. denied, 112 S.Ct. 405 (1991); Fox, 902 F.2d at 1514. Interdependence is present if “the activities of a defendant ... facilitated the endeavors of other alleged coconspirators or facilitated the venture as a whole....” Horn, 946 F.2d at 740-41 (citing Fox, 902 F.2d at 1514). “Casual transactions” or “mere association” with persons involved in criminal activity is insufficient to establish the interdependence of a defendant‘s conduct. See id. at 741. See also Fox, 902 F.2d at 1514. We cannot sustain a conspiracy conviction if the evidence does no more than create a suspicion of guilt or amounts to a conviction resulting from piling inference on top of inference. Direct Sales, 319 U.S. at 711, 63 S.Ct. at 1269; Fox, 902 F.2d at 1513.
A.
Hill, who was convicted solely of count 2, the firearms conspiracy, makes two arguments concerning the sufficiency of the evidence. First, he contends that there was no evidence that he knew or should have known of the marijuana cultivation, distribution and possession. Second, he contends that there was no evidence of an agreement to use or carry firearms during and in relation to the commission of a drug trafficking offense.
Hill‘s challenge regarding his lack of knowledge raises a question concerning what a person charged with conspiring to commit a crime which itself requires the commission of another crime must know and intend in order to be a participant in the conspiracy. Count 2 alleged that Defendants conspired to use or carry firearms during and in relation to the commission of particular drug trafficking crimes. The unlawful objective of the conspiracy was to violate
The primary objective of a conspiracy to violate § 924(c) is the use or carrying of firearms. Indeed, the legislative history of § 924(c) makes clear that the mandatory prison term Congress provided was to deter the use of firearms, albeit during the commission of a drug trafficking offense or crime of violence.5
In determining whether the evidence was sufficient for the jury to infer that Hill knew of the marijuana cultivation and participated or intended to participate in it, Hill‘s acquittal on the count 1 marijuana conspiracy and the substantive marijuana offenses does not weigh in our independent review of the sufficiency of the evidence. In United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984), the defendant was convicted of using the telephone in “committing and in causing and facilitating” a conspiracy to possess cocaine with intent to distribute and possession of cocaine with intent to distribute,
inconsistent verdicts—even verdicts that acquit on a predicate offense while convicting on the compound offense—should not necessarily be interpreted as a windfall to the Government at the defendant‘s expense. It is equally possible that the jury, convinced of guilt, properly reached its conclusion on the compound offense, and then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the lesser offense.... Given this uncertainty, and the fact the Government is precluded from challenging the acquittal, it is hardly satisfactory to allow the defendant to receive a new trial on the conviction as a matter of course.
Id. at 65, 105 S.Ct. at 477. The Court recognized that “a criminal defendant already is afforded protection against jury irrationality or error by the independent review of the sufficiency of the evidence undertaken by the trial and appellate courts.” Id. at 67, 105 S.Ct. at 478. The Court expressly cautioned that “[t]his review should be independent of the jury‘s determination that the evidence on another count was insufficient.” Id. Thus, contrary to the dissent‘s conclusion in the present case, we may not rely on the fact that the jury acquitted Hill of the marijuana conspiracy and substantive offenses in determining the sufficiency of the evidence on the count for which he was convicted.
Having said this, we conclude that the evidence, when construed in the light most favorable to the government, is sufficient for the jury reasonably to infer that Hill knew marijuana was being cultivated at Senior‘s residence and that he intended to participate in this activity. There was substantial direct evidence that marijuana was being cultivated at Senior‘s residence. Hill admitted that he brought a tractor and tiller, which he had access to from working on a ranch, out to the house, and showed Senior how to operate it. Senior instructed Lane later that same evening to “help” Hill “the next day.” Hill returned to Senior‘s residence the following afternoon and used the tractor to till a pasture in the woods near Senior‘s residence while Lane fertilized the pasture. While returning from the pasture, Lane, who was driving Senior‘s pickup, and Hill, who was driving the tractor, saw the game warden‘s truck parked in the drive leading up to the house. Hill motioned with his head to Lane to back up, which he did. Hill told Lane to “stay low” and left him in the woods instructing him to “stay right there.” Hill then ran across the road “in a crouched position with [his] head down.” At this point, he was spotted by Game Warden Smalling and Deputy Long. Hill continued running after being ordered to stop, but eventually stopped when Long fired a shot into the ground. Notwithstanding Hill‘s denials and explanations,7 resolution of these factual issues is within the province of the jury. Hill‘s provision
2.
Hill also contends that there was no evidence that he agreed to use or carry firearms. Hill brought two pistols and rifle when he went to Senior‘s residence to till the pasture. Although he left these firearms in his truck, the fact that he brought them in his truck knowing that he was to be assisting in the cultivation of marijuana evidences an agreement to carry firearms. Moreover, Lane had a .22 caliber rifle with him when he and Hill tilled and fertilized the pasture. Finally, an AR-15 rifle, subsequently determined to belong to Junior, was found in the cab of Senior‘s pickup which Lane used to haul the fertilizer out to the pasture. The presence of these guns in the proximity of Hill‘s activity relating to the cultivation of marijuana is sufficient evidence for the jury to infer that Hill agreed to use or carry firearms during and in relation to the commission of a drug trafficking offense.
B.
Junior was convicted of both the marijuana conspiracy charged in count 1 and the firearms conspiracy charged in count 2, and he also challenges his convictions based on insufficient evidence. The crux of Junior‘s argument is that there was no evidence that he agreed to participate in the manufacturing, distribution, or possession with intent to distribute marijuana or to carry firearms during the commission of any of these offenses. However, Junior admitted that he knew that marijuana was being grown at the house. Based on his admitted knowledge of the illegal activity, it is reasonable to infer from Junior‘s conduct, in light of the surrounding circumstances, that he agreed to participate in the unlawful activity.
1.
As earlier stated, the evidence clearly established that marijuana was being cultivated at Senior‘s residence. Junior assisted Senior in renting the house by signing of the rental agreement and delivering the rental payments despite Junior‘s knowledge that Senior was involved in marijuana.8 Junior admitted that he stayed at the house on weekends, at times with his girlfriend Angela Caldwell. Junior also admitted that on one occasion, at Senior‘s request, he brought a jug of water to Senior
2.
Having found sufficient evidence that Junior was part of the marijuana conspiracy, we also believe the evidence was sufficient for the jury to infer that Junior agreed to use or carry firearms during the commission of a drug trafficking offense. Junior admitted that he kept his guns at his father‘s house, but claimed that he did not “have those guns out there for any purpose that was related to [his] father‘s marijuana business.” Junior said that he used his guns for “spotlighting,” “target practice,” “shoot trees,” “just anything.” Again, however, credibility determinations are uniquely within the province of the jury, and the jury was free to find that Junior‘s guns at the house were part of the conspiracy. This inference is supported by the uncontradicted evidence that the loaded AR-15 was in Senior‘s truck found near the shed and tractor with fertilizer on it, and Junior not only admitted ownership of the gun but admitted that he left the gun in the truck.
IV.
Both Senior and Junior raise multiplicity arguments. Senior contends that count 5 is multiplicious of count 6 and suggests that one count should be dismissed. Junior contends that count 1 is multiplicious of count 2, and suggests that the rule of lenity requires that he be sentenced under count 2 because it is less onerous.
“[M]ultiplicity refers to multiple counts of an indictment which cover the same criminal behavior.” United States v. Dashney, 937 F.2d 532, 540 n. 7 (10th Cir.) (citing United States v. Chrane, 529 F.2d 1236, 1237 n. 3 (5th Cir.1976)), cert. denied, 112 S.Ct. 402 (1991). While multiplicity is not fatal to an indictment, United States v. Duncan, 850 F.2d 1104, 1108 n. 4 (6th Cir.1988), it poses the threat of multiple sentences for the same offense and may improperly suggest to the jury that the defendant has committed more than one crime. Id. See also United States v. Marquardt, 786 F.2d 771, 778 (7th Cir.1986); United States v. Reed, 639 F.2d 896, 904 (2d Cir.1981); United States v. Carter, 576 F.2d 1061, 1064 (3d Cir.1978). The threat of multiple sentences for the same offense raises double jeopardy implications. See Brown v. Ohio, 432 U.S. 161, 169, 97 S.Ct. 2221, 2227, 53 L.Ed.2d 187 (1977) (“Fifth Amendment forbids ... cumulative punishment for greater and lesser included offenses“) (footnote omitted).
Where multiple counts for which a defendant is convicted cover the same criminal behavior, our review is limited to whether Congress intended multiple convictions and sentences under the statutes. See Garrett v. United States, 471 U.S. 773, 779, 105 S.Ct. 2407, 2411, 85 L.Ed.2d 764 (1985). See also Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983). We first look to the language of the statutes and then to legislative history to discern Congressional intent regarding multiple convictions and sentences. If Congressional intent cannot be discerned, we apply the well-settled “rule of statutory construction” set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), “to determine whether Congress has in a given situation provided that two statutory offenses may be punished cumulatively.” Whalen v. United States, 445 U.S. 684, 691, 100 S.Ct. 1432, 1437, 63 L.Ed.2d 715 (1980). Accord Albernaz v. United States, 450 U.S. 333, 337, 101 S.Ct. 1137, 1141, 67 L.Ed.2d 275 (1981). See also Raymer, 941 F.2d at 1044 (“Blockburger ... remains the test in the multiple punishment context“). This test was articulated by the Supreme Court as follows:
[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.
Blockburger, 284 U.S. at 304, 52 S.Ct. at 182. Because we must assume that Congress legislated with Blockburger in mind, Albernaz, 450 U.S. at 341-42, 101 S.Ct. at 1143-44, we presume, absent express Congressional intent to the contrary, that Congress intended multiple convictions and sentences for the same criminal behavior which violates more than one statute when each statute requires proof of a fact that the other does not.
A.
The charging language of counts 5 and 6 indicates that they are based on the same conduct. Count 5 charged a violation
Nothing in the statutory language or legislative history of
Generally, when two counts for which a defendant is convicted are multiplicious, the conviction on the lesser included offense must be vacated. United States v. Stallings, 810 F.2d 973, 976 (10th Cir.1987); United States v. Dickey, 736 F.2d 571, 597 (10th Cir.1984), cert. denied, 469 U.S. 1188 (1985). Count 5 charging the violation of subsection (a)(1) is the lesser included offense of count 6 because it “requires no proof beyond that which is required for conviction of the greater.” See Brown, 432 U.S. at 168, 97 S.Ct. at 2226. See also Jeffers v. United States, 432 U.S. 137, 150, 97 S.Ct. 2207, 2215, 53 L.Ed.2d 168 (1977); United States v. Neal, 692 F.2d 1296, 1306 (10th Cir.1982).
However, we believe that the conduct charged fits more squarely into count 5. The plain language of subsection (a)(2) indicates that it was designed to punish a person who permits property which they manage and control to be used by a third person for the activity relating to narcotics. Essentially, subsection (a)(2) seeks to punish the lessor, not the lessee. See United States v. Chen, 913 F.2d 183, 190 (5th Cir.1990) (“§ 856(a)(2) is designed to apply to the person who may not have actually opened or maintained the place for the purpose of the drug activity, but who has knowingly allowed others to engage in those activities“). Whereas, the language of subsection (a)(1) indicates that it was designed to punish a person who uses his own property for the activity relating to narcotics. See id. at 189-90 (“purpose” requirement of subsection (a)(1) applies to person who knowingly opens and maintains place for the illegal activity). The government‘s suggestion that (a)(2) can be used to
B.
In determining whether the two conspiracies charged in counts 1 and 2 for which Junior was convicted are multiplicious, “the relevant inquiry is whether there existed more than one agreement to perform some illegal act or acts.” United States v. Swingler, 758 F.2d 477, 491-92 (10th Cir.1985) (quoting Ward v. United States, 694 F.2d 654, 661 (11th Cir.1983)). “A single agreement to commit several crimes constitutes one conspiracy. By the same reasoning, multiple agreements to commit separate crimes constitute multiple conspiracies.” United States v. Broce, 488 U.S. 563, 570-71, 109 S.Ct. 757, 763, 102 L.Ed.2d 927 (1989).
Counts 1 and 2 allege the same conspirators and time frame. The underlying drug trafficking offenses of the unlawful objective in count 2 mirror the unlawful objectives of count 1. Further, count 2 alleges the same conspiracy charged in count 1 as an additional underlying drug trafficking offense. Thus, the circumstances indicate that there was but a single agreement. See United States v. Anderson, 872 F.2d 1508, 1520 (11th Cir.1989) (three conspiracies covering the same general time frame and relating to the sale or transfer of the same government munitions and explosives were multiplicious).
However, if Congress intended multiple convictions and sentences under
Because the statutory language as well as the legislative history is silent, we apply the Blockburger test to determine whether Congress intended a conspiracy to violate
V.
Hill contends that the district court‘s reliance on
Applying § 2D1.1 to Hill was error because he was not convicted of a drug conspiracy. Section 2D1.1 is applicable to drug trafficking offenses charged under
While a defendant must have intended to commit a drug trafficking crime in order to be convicted of a conspiracy to violate
The appropriate guideline for
Application of this guideline provides some difficulty, however, because the guideline for the substantive offense,
We believe the “most analogous offense guideline” is
Finally, we note that Hill received a two-level upward adjustment pursuant to
[t]o avoid double counting, when a sentence under [U.S.S.G. § 2K2.4] (which is applicable to substantive violations of
18 U.S.C. § 924(c) ) is imposed in conjunction with a sentence for an underlying offense, any specific offense characteristic for firearm discharge, use, or possession is not applied in respect to such underlying offense.
VI.
Junior received a mandatory minimum five year sentence for his conviction under count 1. See
In pre-guidelines cases, we have held that the government must allege in the indictment the quantity of controlled substance involved in order to trigger the enhanced sentencing provisions of § 841. United States v. Crockett, 812 F.2d 626, 629 (10th Cir.1987). See also United States v. Jenkins, 866 F.2d 331, 334 (10th Cir.1989) (Crockett bars enhanced sentence under § 841 absent a quantity allegation in the indictment); United States v. Brandon, 847 F.2d 625, 631 (10th Cir.) (“[t]he quantity possessed by the defendant is a necessary element which the government must allege and prove to obtain the greater penalty provided under § 841(b)(1)(B)“), cert. denied, 488 U.S. 973 (1988). More recently, however, we have stated that “Crockett, a pre-guideline case, is inapposite to post-guideline cases.” United States v. McCann, 940 F.2d 1352, 1358 (10th Cir. 1991) (citing United States v. Ware, 897 F.2d 1538, 1542-43 (10th Cir.), cert. de-
Junior attempts to distinguish McCann on its facts. Admittedly, the issue before the court in McCann was whether the stipulation between the government and the defendant that the quantity of chemical that the defendant pled guilty to possessing was not “readily provable” precluded the district court from considering all relevant conduct in determining the offense level under the sentencing guidelines. Nevertheless, after determining that the district court should have considered all relevant conduct, the court proceeded to hold that defendant‘s guilty plea was not knowing and intelligent because defendant was not told that the mandatory minimum sentence was applicable. In reaching this conclusion the court stated that “the imposition of a mandatory minimum sentence under the guidelines cannot be eliminated from the court‘s consideration simply because a specific amount of drugs was not alleged in the indictment.” Id. The plain language of McCann leads us to conclude that the imposition of a mandatory minimum sentence under
Alternatively, Junior contends that McCann, which was decided after he was sentenced, should not be applied retroactively. In the area of constitutional criminal procedure, the Supreme Court has held that “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases ... pending on direct review or not yet final....” Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987). Retroactive application of new rules to cases pending on direct appeal protects “the integrity of judicial review” and ensures that similarly situated defendant‘s are treated the same. Id. at 323, 107 S.Ct. at 713. In Griffith, the Supreme Court held that the rule announced in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), applied to all cases pending on direct review. Griffith, 479 U.S. at 316, 107 S.Ct. at 709. In doing so, the Griffith Court held that the “clear break” exception, which recognized that a new rule overruling past precedent or disapproving of a practice previously sanctioned is not applied retroactively, was not applicable to cases pending on direct review. Id. at 326, 107 S.Ct. at 715.
The analysis and holding of Griffith must be considered in the context of the rule at issue. Batson expanded the rights of criminal defendants by lowering the defendant‘s burden in establishing a prima facie case of racial discrimination in jury selection. In contrast, the rule announced in McCann arguably constricts the rights of criminal defendants by eliminating the government‘s duty to allege the quantity of controlled substance in order to trigger a mandatory minimum sentence under
The test for determining whether the retroactive application of a judicial decision violates due process is essentially one of foreseeability. A decision is unforeseeable if it is “unexpected and indefensible by reference to the law which had been expressed prior to the conduct at issue.” Bouie, 378 U.S. at 354, 84 S.Ct. at 1703. Perhaps the clearest example is when a court overrules its own precedent. See Marks, 430 U.S. at 192-96, 97 S.Ct. at 993-95.
Junior argues that McCann overruled Crockett and therefore it was unforeseeable and should not be applied retroactively. However, McCann does not nor could not reverse Crockett. See United States v. Spedalieri, 910 F.2d 707, 710 n. 3 (10th Cir.1990) (three-judge panel cannot overrule circuit precedent). Rather, McCann distinguishes Crockett and holds that it is not applicable to post-guidelines cases.
The sentencing guidelines were promulgated well before Junior participated in the marijuana conspiracy. The guidelines clearly provided that all relevant conduct would be taken into account in determining the appropriate sentence.
VII.
Senior contends that the two-level enhancement for possession of a firearm during the commission of a drug trafficking offense was improper.16 Section 2D1.1 of the Sentencing Guidelines provides for a two-level increase in the base offense level if the defendant possessed a firearm during the commission of a drug trafficking offense.
As stated earlier, the evidence at trial indicated that marijuana cultivation activity was occurring near the house on April 13. Near the door of the house leading to the carport, officers found a loaded .22 caliber rifle. In Senior‘s truck which the evidence at trial indicated had been used for marijuana cultivation, officers discovered a loaded AR-15 rifle of which Junior admitted ownership. Finally, near the shed where the tractor which had been used for the cultivation was parked, officers discovered Lane‘s loaded .22 caliber rifle. In light of the proximity of the rifles to the cultivation, we cannot say that it was clearly improbable that the weapons were connected with the offense. See Goddard, 929 F.2d at 549 (§ 2D1.1(b)(1) applicable when defendant knew coconspirator possessed gun). Thus, the two-level upward adjust-
We AFFIRM the convictions and sentence of John Wesley Morehead, Sr., on counts 1, 2, 3, 4, 5 and 7, but REMAND to the district court with instructions to VACATE his conviction on count 6 as multiplicious. We AFFIRM the convictions and sentence of John Wesley Morehead, Jr., on counts 1 and 2. We AFFIRM the conviction of Jackie Ray Hill on count 2 but REMAND to the district court with instructions to VACATE his sentence and resentence him consistent with this opinion.
JOHN P. MOORE, Circuit Judge, dissenting:
I must respectfully dissent from that part of the court‘s opinion sustaining the conviction of Mr. Hill. I cannot agree there was sufficient evidence to support it. The issue is close; however, I believe the court relies upon inferences rejected by the jury to reach its conclusion. As a result, I cannot agree.
To focus upon the issue, we must first examine the indictment. The charged offenses are both specific and intertwined. Count 1 charges a conspiracy to manufacture, possess with intent to manufacture, and distribute marijuana. The means of the conspiracy alleged are, in general terms: 1) obtaining and maintaining the place, funds, tools, and seeds to plant, cultivate, and harvest marijuana; 2) arranging for the security of the places where marijuana was grown and “strategically locating firearms against an eventuality or circumstances in which such firearms were intended to or would be used” (emphasis added); 3) taking steps to avoid detection by law enforcement officers; 4) other specific acts relating to the growing of marijuana.
Count 2 charges the three defendants conspired to use or carry firearms “during and in relation to” the commission of: 1) manufacturing marijuana; 2) possessing marijuana with intent to distribute; 3) distributing marijuana; 4) conspiring to manufacture, possess with intent to distribute, and distributing, marijuana. The means of the conspiracy charged under count 2 were that: 1) “certain of the defendants” traveled from Oklahoma to Texas to “attempt to manufacture, and/or possess with intent to distribute marijuana;” 2) the defendants later did the same things in the state of Oklahoma; 3) “[i]n an attempt to secure the clandestine marijuana manufacturing operation ... the defendants assembled, possessed, and/or maintained” firearms and ammunition “in and near various buildings at or near the laboratory site.”
Although stated in separate counts, the conspiracies charged embrace essentially the same events. The theory of prosecution was that the defendants conspired to conduct a marijuana business and that they conspired to use or carry firearms in connection with that business and in connection with the conspiracy to conduct the marijuana business. (A conspiracy within a conspiracy). Thus, the conspiracy charged in count 2 consisted of an agreement coupled with two distinct elements of criminal conduct: 1) the overt acts relating to carrying on the marijuana business; 2) agreeing with others to carry on the marijuana business. To convict on the count 2 conspiracy, the government had to prove at least one of the two elements and the agreement.
By acquitting Mr. Hill of all other counts, the jury found the evidence insufficient to prove he distributed, manufactured, or intended distribution of marijuana. Thus, there is insufficient evidence on the first element of distinct conduct contained in count 2. The jury also found the evidence insufficient to prove Mr. Hill agreed with others to engage in the marijuana business; therefore, it determined the evidence insufficient to prove the second distinct element of conduct. It is therefore impossible for Mr. Hill to have been found guilty of conspiring to use or carry firearms in connection with conduct that was not proved.
The very interrelation of the charges will not permit such an inconsistent result. Because the criminal transactions were made interdependent, it is a logical inconsistency to suggest that the evidence on count 2
I have a further basis for disagreement, however. The court seems to take the position that
First, the statutory language will not permit such an interpretation. The section provides:
Whoever, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm, shall, in addition to the crime, be sentenced to imprisonment....
The offense is, as noted by the court, a “firearms offense,” but it is not an offense which can be committed simply by carrying or controlling a firearm. An essential element of the § 924(c) offense is the connection with a “crime of violence or drug trafficking crime.” Any other conclusion is contrary to the express language of the statute. Indeed, “[b]ecause all elements of the crime created by section 924(c)(1) must be proved for conviction under that section, a defendant charged with violating section 924(c)(1) must be proven to have committed the underlying crime.” United States v. Hunter, 887 F.2d 1001, 1003 (9th Cir.1989). We have already neared this conclusion in United States v. Henning, 906 F.2d 1392, 1399 (10th Cir.1990), when we observed, “[s]ection 924(c) is an enhancement statute enacted to punish those drug traffickers who choose to carry on their trade with the assistance of a firearm.”
In this case, the government failed to prove the underlying crimes. No amount of reconsideration of the inferences that would have allowed the jury to convict on those offenses can resurrect them. Without proof that the underlying substantive offenses were committed, a conviction on § 924(c)(1) cannot stand.17
Having reached this conclusion, I do not consider whether the district court properly applied the guidelines in arriving at Mr. Hill‘s sentence. I do not, therefore, join in the court‘s opinion on that issue except to suggest the court‘s difficulty in resolving the problem it presents is the result of the inconsistency in the verdicts. I would reverse Mr. Hill‘s conviction.
BOBBY R. BALDOCK
UNITED STATES CIRCUIT JUDGE
Notes
In response to Supreme Court decisions holding that a defendant could not be sentenced under § 924(c) when the underlying offense provided for an increased sentence for use of a firearm during its commission, Busic, 446 U.S. at 407, 100 S.Ct. at 1753; Simpson, 435 U.S. at 16, 98 S.Ct. at 914, and to the possibility that the sentence for a violation of § 924(c) was not mandatory, could run concurrently, and might permit the offender to be eligible for parole, Congress substantially revised § 924(c). See Comprehensive Crime Control Act of 1984, Pub.L. No. 98-473, § 1005, 98 Stat. 1837, 2138. See also
Further, the government sought to elicit testimony from Lane that Hill told him they were going out to the pasture to “plant some weed.” Lane‘s testimony does indicate that Hill “hollered” something to him from the living room while Lane was in the hallway which sounded something “around [the] basis” of “preparing plots for marijuana,” or “kind of sounded something like” “plant some weed.” However, Lane could not remember what Hill said, and eventually admitted that he assumed, after seeing all the marijuana seized from his father‘s house, the reason he assisted Hill in tilling and fertilizing the pasture was related to marijuana. Indeed, he unequivocally stated that no one ever mentioned marijuana to him inside his father‘s house until the police officers questioned him. Thus, we believe that Lane‘s testimony could provide some evidence of Hill‘s knowledge or intent to participate in the cultivation of marijuana, depending on what the jury believed.
We cannot accept Hill‘s argument that the jury evidently believed Lane‘s repudiation because it acquitted him of the marijuana conspiracy as well as the substantive marijuana and firearms counts. Our review of the sufficiency of the evidence to convict Hill of the count 2 firearms conspiracy must “be independent of the jury‘s determination that the evidence on another count was insufficient.” Powell, 469 U.S. at 67, 105 S.Ct. at 478.