Lead Opinion
Antwoyn Terrell Spencer and Derrick Jerome Spencer were tried together in district court
I.
On May 21, 2007, a grand jury indicted four defendants: brothers Antwoyn, Derrick, and Frederick Spencer, and Jovan Gentle. Frederick Spencer was acquitted. Jovan Gentle, a seller for Antwoyn and Derrick, was a fugitive at the time of trial.
A. The conspiracy to distribute cocaine
Count 1 charges that Antwoyn, Derrick, and Jovan Gentle “knowingly and intentionally conspired with each [other] and with others to distribute” cocainе and crack cocaine.
The government offered testimony of several co-conspirators, including Jermaine Richardson and Vontrell Williams. Richardson testified that for two years, he and Derrick sold cocaine and crack regularly. Richardson indicated that Derrick got the drugs from his brother Antwoyn. Richardson’s testimony included this exchange:
Q. During the period of 1998 on until your arrest [in June 2006], how much time did you spend with Derrick?
A. At first really not too much, but probably like the last two years or year and a half of that, I spent a lot of time with him.
Q. And the last two years, that’s when you were getting those big amounts from Antwoyn Spencer?
A. Yeah.
Q. And were you out on the streets selling those amounts?
A. Was I?
Q. Well, breaking it down and selling it in smaller amounts?
A. Yeah, that’s how I sold it, in smaller amounts.
Q. And did you ever ride around and do that same thing with Derrick?
A. I did.
Co-conspirator Williams testified that from 1998 to 2001, he ordered about 80 kilograms of cocaine from Antwoyn, and that Derrick frequently delivered the drugs on Antwoyn’s behalf. He further testified that after getting out of prison in April 2005, he started getting cocaine from Antwoyn again.
The government also cited the interrupted delivery by John Nguyen to Antwoyn, discussed below, as evidence of the drug conspiracy.
The jury received conspiracy instructions tracking Eighth Circuit Model Criminal Jury Instruction § 5.06A-B, and convicted Antwoyn and Derrick on the conspiracy count.
B. Antwoyn’s attempted possession with intent to distribute cocaine
Police arrested John Nguyen in Wichita, Kansas, after seizing eight kilograms of cocaine at a traffic stop. Nguyen told police he was a mule regularly delivering cocaine from Texas to Antwoyn in Minnesota, and that the seized cocaine was on its way to Antwoyn. About 14 hours after Nguyen’s arrest (and two hours after Nguyen would have delivеred the load), Nguyen’s cell phone received a call from Antwoyn’s number. No one answered.
Nguyen testified against Antwoyn at trial. He stated that he had delivered, or attempted to deliver, 32 kilograms of cocaine to Antwoyn between early 2006 and his arrest on August 15, 2006. The government offered evidence to corroborate Nguyen’s testimony. First, at the time of the Wichita stop, Nguyen had multiple phone numbers for Antwoyn stored in two cell phones. The government established a calling history between the Spencers and Nguyen, which included a call Nguyen received, two days before his arrest, from a phone traced back to Derrick. Second, the eight kilograms of cocaine seized at Wichita were distinctively packaged like a kilogram of cocaine seized from Jermaine Richаrdson two months earlier. Third, according to other cooperating witnesses, Antwoyn’s cocaine source in the summer of 2006 was an Asian male from Texas.
C. Derrick’s distribution of cocaine
Jovan Gentle, cooperating with law enforcement, made two controlled purchases of powder cocaine from Derrick. Each time, he wore a transmitting device. Gentle subsequently disappeared and was a fugitive at the time of trial (following the trial, he was caught, pled guilty, and sentenced). The government proved the two transactions by two types of evidence: the tape-recorded conversations between Derrick and Gentle, and observations of surveillance officers.
D. Antwoyn’s money laundering
Before buying a home in Brooklyn Park, Minnesota, in 2005, Antwoyn gave cash to third parties in exchange for checks, which
IRS Special Agent Daniel Nye testified that his analysis excluded any legitimate funds as sources of the money for the home purchase. Antwoyn did not object to Nye’s testimony.
E. Counsel for Frederick Spencer’s opening statement
During opening statements, counsel for Frederick Spencer stated to the jury:
Fred Spencer is accused of two counts of money laundering. The Government will tell you that he [Frederick] is involved with his brothers Antwoyn and Derrick in this alleged drug trafficking ring and that he is allowing some of their drug proceeds to flow to his business.
You will hear another story from Fred Spencer, however. You will hear directly from Fred Spencer. He has always been coоperative. He’s not going to hide behind the Fifth Amendment.
Antwoyn and Derrick objected. The court gave the jury the following curative instruction, to which all parties agreed:
[Counsel for Frederick Spencer] has acknowledged that [his] statement was an inadvertent mischaracterization of the law, and you may not consider it in your deliberations. Please keep in mind that the defendant in a criminal case has an absolute right under the United States Constitution not to testify. The fact that a defendant does not testify cannot be discussed or considered by the jury in any way when you are considering and arriving at your verdict. But keep in mind that no inference of any kind may be drawn from the fact that other defendants may or may not decide to exercise their privilege under the constitution and not testify.
Frederick was acquitted and is not party to this appeal.
F. Drug-quantity determinations
The district court agreed with the drug quantities recommended in the presentence reports, finding Antwoyn responsible for 213.4 kilograms of cocaine and 56.6 kilograms of crack cocaine (1,174,680 kilograms of marijuana equivalency), and Derrick responsible for 677.52 grams of cocaine and 13.3 kilograms of crack cocaine (266,135.5 kilograms of marijuana equivalency). These quantities were “based on the testimony of trial witnesses.” With respect to Antwoyn, the district court reviewed “the trial transcript in preparation for sentencing' — with particular attention to the testimony of Vontrell Williams, Yama Tunson, Oliver Scott, and Jermaine Richardson” and concluded “the quantities suggested by these witnesses were proven by a preponderance of the evidence.” With respect to Derrick, the district court reviewed “the triаl transcript in preparation for sentencing-with particular attention to the testimony of Vontrell Williams” and concluded “the quantities suggested by these witnesses were proven by a preponderance of the evidence.”
G. Sentences
The district court sentenced Antwoyn to concurrent 324 month terms on two counts — conspiracy, and attempted possession with intent to distribute cocaine. It also imposed a concurrent sentence of 240 months on the money-laundering count.
The district court sentenced Derrick to 292 months on the conspiracy count and a concurrent 240 months on the distribution counts.
A. The conspiracy to distribute cocaine
Antwoyn and Derrick contest their conspiracy convictions, arguing: (1) the conspiracy instructions impermissibly amend the conspiracy charged in the indictment, and (2) the government failed to prove that either Antwoyn or Derrick acted to further the conspiracy within the five-year statute of limitations.
1. Jury instructions
Antwoyn and Derrick argue that the district court’s jury instructions 20 and 21, which track Eighth Circuit Model Criminal Jury Instruction § 5.06A-B, constructively amend the indictment. A constructive amendment of an indictment occurs when jury instructions broaden the scope of an indictment by permitting a conviction for an uncharged offense. See United States v. Griffin,
Ordinarily, this court reviews jury instructions de novo. But here, both defendants acknowledge that they never objected to the instructions below, and thus review is for plain error. See United States v. Smith,
Count 1 charges that Antwoyn, Derrick, and Gentle “knowingly and intentionally conspired with each [other] and with others to distribute” cocaine and crack cocaine. Jury instruction 20 states that one essential element of conspiracy is that “two or more persons reached an agreemеnt or came to an understanding to distribute cocaine or crack cocaine.” Jury instruction 21 states in relevant part:
The prosecution must prove that each of the defendants charged in Count 1 reached an agreement or understanding with at least one other person. It makes no difference whether that other person is a defendant or named in the indictment. You do not have to find that all the persons charged were members of the conspiracy.
Antwoyn and Derrick argue that these instructions constructively amend the indictment “because the indictment required the jury to find the defendants guilty of the crime of conspiracy with each other, while Instruction 20 [and 21] specifically instructed the jury could find either or both Spencers guilty of simply conspiring with any other person, and therefore, not each other.”
Instructions 20 and 21 do not amend the indictment, because the indictment does not require “the jury to find the defendants guilty of the crime of conspiracy with each other” as the Spencers insist. A defendant can be convicted of conspiracy even if the jury concludes that not everyone alleged to be involved in the conspiracy actually participated. See Berger v. United States,
The indictment in this case specifically states that the defendants conspired with each other and with others. “An
In Behler, Count 1 charged a conspiracy “with Thomas Stephen McRea and others” to distribute methamphetamine. During deliberation, the jury asked the court: “Does Thomas Stephen McRea have to be a part of the conspiracy to enable a guilty verdict on Count # 1?” The district court answered “no.” Id. at 1269. This court affirmed, applying United States v. Lueth,
The indictment here is phrased in the conjunctive. Under Behler, the jury instructions in the disjunctive do not constructively amend the indictment. The district court did not commit plain error by giving model jury instructions consistent with the law.
Antwoyn and Derrick contend that if the jury instructions do not constructively amend the indictment, then Count 1 of the indictment is duplicitous, inappropriately joining multiple offenses in a single count. See United States v. Moore,
Antwoyn and Derrick waived this argument by failing to object to the allegedly duplicitous count before trial. See United States v. Prescott,
Behler adopts the Lueth rule where the indictment lists conspirators, rather than drugs, in the conjunctive.
Even if the indictment raised duplicity concerns, the Spencers’ convictions would stand. In Griffin v. United States,
2. Statute of limitations
According to Antwoyn and Derrick, the government failed to prove an act in furtherance of their conspiracy, with a date attached to it, in the five years before their indictmеnt on May 21, 2007.
The brothers contend that the government had the burden to prove that they conspired with each other within the limitations period. This is incorrect as stated above. See Behler,
The government provided ample evidence that both Antwoyn and Derrick committed conspiratorial acts within the limitatiоns period. Testimony indicated that during 2006 alone, Antwoyn received 24 kilograms of cocaine from Nguyen. Vontrell Williams testified that he purchased cocaine from Antwoyn following his release from prison in 2005. Jermaine Richardson testified that in the two years before his 2006 arrest, he received large amounts of cocaine from Antwoyn. Richardson also testified that he rode around selling cocaine and crack cocaine with Derrick during this period. Derrick’s two convictions for selling cocaine to Gentle in April and May 2006 corroborate Richardson’s testimony that Derrick was dealing drugs within the limitations period.
The Spencers argue that Richardson did not testify that he rode around selling cocaine and crack cocaine with Derrick in 2005-2006. The Spencers focus on the prosecutоr’s use of “ever” in questioning Richardson:
Q. Did you ever ride around and do that same thing with Derrick?
A. I did.
(emphasis added). But, in context, the prosecutor had already narrowed the scope of the questioning to 2005-2006. Three questions earlier, the prosecutor asked, “And the last two years, that’s when you were getting those big amounts from Antwoyn Spencer?” Critically, the prosecutor prefaced this question with the restrictive clause “And the last two years,” referring to the last two years before Richardson’s 2006 arrest. Thus, a reasonable jury could conclude that the ensuing questions — “And were you out on the streets selling those amounts?”; ‘Well, breaking it down and selling it in smaller amounts?”; and “And did you ever ride around and do the same thing with Derrick?” — asked about the two-year period already identified. Interpretation of testimony is for the jury. See, e.g., Alholm v. Am. S.S. Co.,
The district judge who heard Richardson’s testimony understood the exchange this way. Denying the Spencers’ motion for acquittal, the court found, “Richardson testified that he sold drugs with Derrick Spencer in the two years prior to his arrest in June 2006.”
Antwoyn and Derrick assert that evidence that they separately sold cocaine to third parties is not enough to establish a conspiracy. See United States v. Prieskorn,
Prieskom does not help the Spencers. It recognized that evidence does not sufficiently establish conspiracy in buyer-seller situations where there is “only evidence of a ‘single transient sales agreement’ and small amounts of drugs consistent with personal use.” Id. at 634. In this case, the evidence indicates multiple transactions of large amounts of drugs, and an ongoing relationship between Antwoyn, Derrick, and other co-conspirators. The evidence here sufficiently establishes conspiracy.
Even if, as the Spencers maintain, the government had to prove they conspired with each other within the limitations period, Jermaine Richardson testified that when he was selling drugs with Derrick in 2005-06, Derrick got his drugs from Antwoyn. In addition, officers executing a search warrant at the Spencers’ mother’s home in 2007 found drug scales and packing materials, as well as documents and other items tying Antwoyn and Derrick to the home. The evidence here is sufficient to establish conspiracy between Antwoyn and Derrick within the statute of limitations.
B. Antwoyn’s attempted possession with intent to distribute cocaine
Antwoyn contends that the evidence is insufficient to support his attempted possession conviction. This court reviews the sufficiency of the evidence supporting a conviction de novo, viewing the evidence most favorably to the jury verdict, resolving conflicts in favor of the verdict, and giving it the benefit of all reasonable inferences. Cruz,
According to Antwoyn, the government failed to prove that he took a substantial step towards acquiring the eight kilograms of cocaine seized from Nguyen. Antwoyn maintains that the government relied on the unanswered telephone call to Nguyen’s phone after his arrest as the “substantial step.” This act, Antwoyn contends, is too ambiguous to be a substantial step. See United States v. Davis,
Antwoyn relies on United States v. Joyce,
Joyce and subsequent decisions “turned on whether it was the defendant himself — • rather than a third party — who ended the chain of events leading toward, but not resulting in, the commission of a substantive crime.” United States v. Burks,
Here, as in Burks, the government, not the defendant, ended the chain of events. As in Burks, the government presented circumstantial evidence that Antwoyn ordered and intended to possess the eight kilograms of cocaine. Nguyen testified that he was delivering the еight kilograms to Antwoyn, and that he had already delivered 24 kilograms of cocaine to Antwoyn in 2006 before his Wichita arrest. Co-conspirators testified that Antwoyn’s source of supply in the summer of 2006 was an Asian male from Texas. A kilogram of cocaine seized from Jermaine Richardson, which Richardson testified he got from Antwoyn, was packaged in the same distinctive manner as the eight kilograms seized from Nguyen. Telephone records show Antwoyn and Nguyen were in frequent telephone contact during the summer of 2006. The jury could reasonably infer from this evidence, along with the missed phone call to Nguyen’s phone, that Antwoyn ordered and intended to possess the eight kilograms of cocaine.
C. Derrick’s distribution of cocaine
Derrick was convicted on two counts of distributing cocaine, both based on controlled sales to Gentle. Derrick argues that the district court violated his rights under the Sixth Amendment’s Confrontation Clause by allowing evidence of these controlled buys despite Gentle’s unavailability. This court reviews de novo the district court’s determination of the protections afforded by the Confrontation Clause, and reviews the underlying factual determinations for clear error. See United States v. Bordeaux,
The Confrontation Clause bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Crawford v. Washington,
The tape recordings do not implicate Crawford. Derrick’s statements on the tape are “admissions by a party-opponent” and are admissible on that basis. See United States v. Tolliver,
As for the observations of the surveillance officers, the officers were live witnesses, subject to cross-examination. Derrick does not explain how their testimony implicates Crawford.
D. Antwoyn’s money laundering
Antwoyn objects to his money-laundering сonviction on two grounds: (1) there is insufficient evidence that the money used to purchase his home in 2005 was “proceeds” of his unlawful drug trafficking, and (2) there is insufficient evidence that he “intended to conceal” the source of the money. This court reviews the sufficiency of the evidence supporting a conviction de novo, viewing the evidence most favorably to the jury verdict, resolving conflicts in favor of the verdict, and giving it the benefit of all reasonable inferences. Cruz,
1. Proceeds
IRS Special Agent Daniel Nye testified that his analysis excluded any legitimate funds as sources of the money for the home purchase. This evidence, admitted without objection, is sufficient. See United States v. Pizano,
Antwoyn contends that he is entitled to a new trial under the Supreme Court’s intervening decision in United States v. Santos,
Other circuits hold- — and this court agrees — that Santos does not apply in the drug context. See United States v. Howard,
2. Intent to conceal
Antwoyn asserts that the evidence cannot establish intent to conceal when assets are purchased in his own name, relying on United States v. Rockelman,
Unlike Rockelman, Antwoyn converted cash into checks from third parties, paying for the home with a cashier’s check. Antwoyn did not pay for the home in cash. The jury could reasonably conclude that Antwoyn structured the transactions this way in order to conceal the source of his money.
E. Counsel for Frederick Spencer’s opening statement
Antwoyn and Derrick argue that they are entitled to a new trial because Frederick Spencer’s counsel told the jury, in his opening statement, ‘You will hear directly from Fred Spencer. He has always been cooperative. He’s not going to hide behind the Fifth Amendment.”
If Antwoyn or Derrick had been denied a mistrial, the standard of review would be whether the district court abused its discretion in denying their motion for a new trial. See United States v. Metz,
The Fifth Amendment forbids any direct comment by the prosecution or defense counsel on a defendant’s failure to testify. See Griffin v. California,
Antwoyn and Derrick argue that Frederick’s counsel’s comment was sufficiently direct that it was not cured by the district court’s privilege instruction, analogizing it to the comments warranting reversal in De Luna. In De Luna, one codefendant, Gomez, testified; the other, de Luna, did not. Counsel for Gomez argued, “Well, at least one man was honest enough and had courage enough to take the stand and subject himself to cross examination and tell you the whole story ... You haven’t heard a word from this man [de Luna].” De Luna,
The comment at issue here is more analogous to the comment in Metz.
[A]n examination of the statements made by Spero’s counsel reveals no direct reference to Metz’s decision not to testify. Instead, the remarks were limited to the decision made by Metz’s co-defendants to take the stand and subject themselves to cross-examination. Under the circumstances, any prejudice which Metz might have suffered is the product of inference, alone, and can in no way be compared to the direct statements of the codefendant’s counsel in De Luna.
Id. at 778. This court held: “Contrary to the situation in De Luna, we believe that the court’s instructions to the jury in the present appeal were sufficient to remove any prejudice to Mr. Metz which might have been inferred by the jury from the comments of Spero’s counsel.” Id.
Like Spero’s counsel in Metz, Frederick’s counsel never affirmatively stated that Antwoyn and Derrick would not testify. He emphasized that Frederick ivould testify. A reasonable juror would not naturally and necessarily interpret this as commenting on Antwoyn’s or Derrick’s failure to testify. Any prejudice to Antwoyn or Derrick is the product of inference alone. As the district court noted in denying the Spencers’ motion for acquittal, “any inference as to Antwoyn or Derrick Spencer’s failure to testify is made all the more tenuous by the fact that, at the time the comment was made, it was not certain that [they] would invoke their Fifth Amendment rights during the trial.” In this case, the district court’s instruction was sufficient.
F. Drug-quantity determinations
Antwoyn and Derrick contest the district court’s drug-quantity determinations, which are factual findings reviewed under the clearly erroneous standard. See United States v. Casas,
The district court presided at trial, observed the demeanor of the witnesses, and reviewed the trial transcript before sentencing. In its written statement of reasons for imposing sentences for both Antwoyn and Derrick, the district court noted that it overruled their challenges to the drug-quantity calculations. In each, the district court wrote that the drag-quantity calculations “were based on the testimony of trial witnesses.” “After viewing that testimony at trial and reviewing the trial transсript in preparation for sentencing ... the Court concluded that the quantities suggested by these witnesses were proved by a preponderance of the evidence.”
The district court’s careful determinations were not clearly erroneous.
III.
The judgment of the district court is affirmed.
Notes
. The Honorable John R. Tunheim, United States District Judge for the District of Minnesota.
. As the district court noted, Antwoyn's counsel requested (successfully) that the multiple conspiracies jury instruction be withdrawn (while the prosecutor desired to include it out of an abundance of caution).
. The government contends that Antwoyn and Derrick waived the statute-of-limitations defense by not raising it before or at least during trial. See United States v. Siegelman,
. Because Santos was a plurality opinion, its precedent is the narrowest holding that garnered five votes. See SOB, Inc. v. County of Benton,
Concurrence Opinion
concurring and
dissenting.
I concur in the court’s opinion except for Part II.B. which concerns Antwoyn Spencer’s alleged attempt to possess the cocaine seized from John Nguyen in Wichita, Kansas. From this holding, I dissent. There was simply insufficient evidence to support the conviction.
Proof of an attempt to possess drugs requires that (1) the defendant intended to possess the drugs, and (2) he took a substantial step towards possession of the drags. United States v. Joyce,
There really is no evidence regarding specific steps Antwoyn took toward the possession of this particular eight kilograms of cocaine seized from Nguyen on August 15, 2006. The only evidence, minimal at best, of a substantial step towards completion of the offense is the unanswered phone call Nguyen received from Antwoyn’s phone following Nguyen’s arrest. The government, and apparently the court, relies heavily on inferences raised from evidence of the “normal” course of business between Nguyen and Antwoyn to support Antwoyn’s attempt charge. That evidence might support a conspiracy con
The key lies in the difference between the law of attempt and the law of conspiracy. Under the law of attempt, a substantial step is required in order for the defendant to be convicted. In contrast, conspiracy ... does not require an overt act.
United States v. Robinson,
Each case the court cites in support of its affirmance is distinguishable. United States v. Burks,
The inferences to be gleaned from the facts in this case fall well short of establishing a substantial step toward possession of the particular eight kilograms possessed by Nguyen at the time of his arrest. The inferences from the surrounding facts that Antwoyn often dealt with an Asian male from Texas, dealt in multi-kilo levels of cocaine, that the packaging of the cocaine Nguyen possessed matched other batches co-conspirators claimed they received from Antwoyn do little if anything to prove that on August 15, Antwoyn attempted to possess that particular eight kilograms.
Accordingly, I would reverse the attempt conviction and remand the case to the district court for resentencing of Antwoyn Spencer without consideration of that crime.