United States of America v. Roy William Burris, Jr., also known as Glasses, also known as Goggles, also known as Lentes, also known as Bota Roja, also known as Frank White
No. 20-3056
United States Court of Appeals For the Eighth Circuit
Submitted: September 24, 2021; Filed: January 6, 2022
Appeal from United States District Court for the Eastern District of Missouri - St. Louis
Before LOKEN, COLLOTON, and BENTON, Circuit Judges.
A jury convicted Roy Burris of conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine. See
I.
Burris and Oscar Dillon, III, were tried together on a charge of conspiracy to distribute cocaine. According to evidence at trial, Burris was involved in the distribution of cocaine in both California and Missouri. Proceeding chronologically, the evidence begins in February 2016. At that time, Burris attempted to pass through airport security screening at the Long Beach Airport in California with a bag containing a pistol. Police officers arrested Burris and seized from his person seven cellular phones, cash wrapped in a rubber band, gift cards, and “miscellaneous papers with numbers and notes on them.” The latter appeared to be notes of “payments and money owed.” Investigators later obtained a search warrant for the seven cell phones and found text messages, photos, and videos that connected Burris with a conspiracy to distribute cocaine.
On March 30, 2016, after Burris was released on the February arrest, investigators conducted surveillance at a residential complex in Hawaiian Gardens, California. Officers observed Burris participate in an exchange of two bags between two cars, and they believed that it was a drug transaction. Police sought to arrest Burris, but he tried to evade them by driving his car onto a sidewalk and toward an officer. Police eventually apprehended Burris and took him into custody.
On the same day, officers executed a search warrant at the home of Burris‘s mother in the residential complex. They found five kilograms of cocaine, $124,900 in cash, and a firearm case for the pistol that officers seized from Burris at the Long Beach Airport.
A confederate of Burris‘s, Edgar Roque, testified that he and Burris had coordinated a Hawaiian Gardens drug transaction in March 2016 after which Burris was arrested. Several witnesses at trial described a five-kilogram cocaine sale that occurred between Roque and Burris on that day. Roque explained that his cocaine supplier, Cazares, had terminated the business relationship after the Hawaiian Gardens seizure, and that Roque found a new supplier named Avendano. Roque and Burris then traveled to Mexico to meet with Avendano about distributing cocaine in St. Louis. After the meeting, Avendano agreed to ship ten kilograms of cocaine to St. Louis for Roque and Burris to distribute there.
In September 2016, investigators identified a UPS package containing ten kilograms of cocaine that was delivered to Oscar Dillon, III, in St. Louis. They arrested Dillon and found that he possessed five cellular phones. One of the phones contained text messages in which Burris provided Dillon with information and direction about the delivery of cocaine in St. Louis. Before the delivery, Dillon asked Burris to specify the time of delivery. Burris informed Dillon of the amount of cocaine to be delivered, told Dillon that he should be at the delivery location to accept the package, answered a question from Dillon about who was allowed to accept the package, and updated Dillon on the status of the delivery.
After a trial, a jury convicted Burris on the drug trafficking conspiracy charge. The district court resolved several disputes under the sentencing guidelines, and sentenced Burris within the advisory guideline range to a term of 300 months’ imprisonment.
II.
Burris first argues that the district court should have suppressed evidence
Delay in searching a phone is immaterial to the reasonableness of a seizure, however, when the device has independent evidentiary value. If a cellular phone is evidence of a crime regardless of its contents, then the government is justified in retaining the device on that basis alone. See United States v. Smith, 967 F.3d 198, 209 (2d Cir. 2020); United States v. Mitchell, 565 F.3d 1347, 1352 (11th Cir. 2009) (per curiam).
In this case, the seven cell phones seized from Burris had evidentiary value independent of their contents. The government seized a gun, cash, and other evidence that Burris was involved in drug trafficking. That Burris possessed seven cell phones is further evidence that he was involved in the drug trade, as traffickers often use multiple phones to avoid detection and to compartmentalize different points of contact in the drug dealing business. United States v. Spires, 628 F.3d 1049, 1053 (8th Cir. 2011); United States v. Thompson, 881 F.3d 629, 633 (8th Cir. 2018). Because the phones had evidentiary value independent of the data on the phones, the eight-month seizure of the devices before they were searched was not unreasonable.
Burris next challenges the district court‘s decision to reject his proposed instruction on multiple conspiracies. The proposed instruction provided that the jury must decide whether there were really two (or more) separate conspiracies, namely, one among Roque, Cazares, and Burris, and another among Roque, Avendano, and others, but not Burris. R. Doc. 412, at 2. The district court denied the proposed instruction. The court explained that the indictment charged a single conspiracy, and that Burris was free to argue that he was not part of the conspiracy. But the court believed that it would be incorrect to give an instruction that listed a second conspiracy that did not include Burris when there was evidence that he participated in that asserted conspiracy. The court further observed that a single conspiracy is not converted to multiple conspiracies simply because different conspirators enter the agreement at different times or perform different functions.
Burris renews his contention on appeal. He maintains that the evidence showed two conspiracies—a small California conspiracy in which he participated, and a larger St. Louis conspiracy in which he did not. As such, he argues that the evidence supported a multiple conspiracy instruction, and that the district court abused its discretion by declining to give it. He contends that the lack of a multiple conspiracy instruction caused prejudice, because some jurors might have convicted based on the California evidence alone, even though he was not part of a “totally different agreement” to distribute drugs in St. Louis.
We discern no abuse of discretion in the district court‘s instructions.
Burris‘s suggested instruction suffered from other shortcomings. While the district court might have added general language emphasizing that the government must prove the conspiracy charged in the indictment, as opposed to some other conspiracy, e.g., United States v. Sawyers, 963 F.2d 157, 161 & n.4 (8th Cir. 1992), that is not the language that Burris requested. His proposed instruction called for the court to specify that the jury must decide whether there were two conspiracies—one in California that included Burris, and another in Missouri that involved Roque, Avendano, and others, but not Burris. The district court properly concluded that such an instruction was not required by the law or adequately supported by the evidence.
The potential that the instructions prejudiced Burris is also minimal. The existence of multiple conspiracies would raise the possibility of a variance between the conspiracy charged in the indictment and the conspiracy proved at trial. In that event, a defendant might be prejudiced by the “spillover” of evidence from one conspiracy to another. United States v. Jones, 880 F.2d 55, 66 (8th Cir. 1989). But where, as here, the evidence shows that the defendant was a member of both alleged conspiracies, “the danger of prejudice from [spillover] is minimal, if not non-existent.” Id. (quoting United States v. Scott, 511 F.2d 15, 20 (8th Cir. 1975)). We note also that the jury, in convicting Burris, was required to find that the offenses charged “were begun, continued or completed in the Eastern District of Missouri,” so it is unlikely that the jury could have convicted Burris of participating in a separate conspiracy based entirely in California.
In a related argument, Burris asserts that evidence of his drug trafficking activity in California should not have been admitted at trial. Because the record supports a finding that the California activity was undertaken as part of the charged conspiracy, the district court properly admitted that evidence. See United States v. Stephenson, 924 F.2d 753, 762 (8th Cir. 1991).
III.
Burris also raises claims of procedural error at sentencing. He contends
Burris first objects to the district court‘s calculation of drug quantity. He argues that some of the drugs counted were not relevant conduct to the charged conspiracy. “In a drug conspiracy, a defendant is held responsible for all reasonably foreseeable drug quantities that were within the scope of the criminal activity that he jointly undertook.” United States v. Vinton, 429 F.3d 811, 817 (8th Cir. 2005); see
The district court determined Burris was responsible for 106 kilograms of cocaine: 9.9 kilograms seized in St. Louis, 5.1 kilograms seized in Los Angeles, 53 kilograms established by drug ledgers and forensic analysis of Burris‘s cell phones, and 18 and 20 kilograms of cocaine based on two other transactions that Roque described to investigators. These findings are supported by the record. Burris‘s challenge is based largely on his contention that the California drug trafficking activity was not part of the charged conspiracy, but the district court did not err in concluding that the government‘s evidence established a jointly undertaken activity that encompassed the events cited in the quantity finding. The district court did not clearly err in finding that Burris was responsible for 106 kilograms of cocaine.
Burris next objects to a four-level increase for aggravating role in the offense. That increase applies when the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive. See
Burris argues that because Dillon was acquitted at trial, Burris did not direct or supervise any other participant. The guideline, however, provides that a “‘participant’ is a person who is criminally responsible for the commission of the offense, but need not have been convicted.”
Burris also challenges a two-level increase for reckless endangerment during flight. See
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The judgment of the district court is affirmed.