*1 not be testimony, he would Rill’s credited attempt reduction a three-level
entitled to Rill, 2Xl.l(b)(l). he According to §
under escape attempt ended their Harper burning a hole they “spent hours”
because the window and covering plexiglass
in the fact that anything.” The
“just couldn’t do than Rill ex stronger was plexiglass “interruption by some similar
pected is an beyond control.” See U.S.S.G. [his]
event 2X.l(b)(l); v.
§ also United States see (1st 35-36 Cir.
Chapdelaine, 989
1993) early departure of (finding that the truck that the defendants
the armored “interruption by an going to rob was
were beyond similar event the defendant’s
some 1.1(b)). § 2X
control” under with the court agree
We thus to a
that Rill not entitled three-level level under
reduction in his base offense 2X1.1(b)(1), judgment
§ and we affirm the
of the district court. America,
UNITED STATES
Appellee, SPENCER, Appellant. Terrell America, Appellee, Spencer, Appellant.
Derrick Jerome 09-1196,
Nos. 09-1197. Appeals,
United States Court
Eighth Circuit. Oct. 2009.
Submitted:
Filed: Jan. Rehearing En Banc
Rehearing and 25, 2010.*
Denied Feb. * rehearing panel "attempt” Judge grant on the issue. C. Arlen Beam would *4 Paulsen, Attorney’s
Jeffrey S. U.S. Of- MN, fice, Minneapolis, Appel- argued, lee. COLLOTON, BEAM, and
Before BENTON, Judges. Circuit BENTON, Judge. Circuit Spencer and Derrick Terrell together were tried Spencer Jerome charges court1 on of cocaine distri- convicted bution. The cocaine, attempted conspiracy to distribute it, intent to possession with distribute money laundering. convicted *5 cocaine, conspiracy Derriсk of to distribute distributing and counts of it. The two alleging trial and sentenc- appeal, brothers jurisdiction Having error. under 28 § this court affirms. U.S.C. I. 21, 2007, May grand jury indicted
On Antwoyn, four brothers Der- defendants: rick, Spencer, Frederick and Jovan Spencer acquitted. Frederick was Gentle. Gentle, Jovan seller for Derrick, fugitive at the time of trial. A. The to distribute cocaine Derrick, 1 charges Antwoyn, Count “knowingly and and Jovan Gentle inten- tionally conspired with each [other] with others to distribute” cocaine and crack cocaine. government testimony
The offered co-conspirators, including several Jermaine Schermer, argued, Daniel W. Minne- Rich- Richardson and Vontrell Williams. MN, Antwoyn Terrell apolis, Appellant, for years, testified that for two he and ardson Spencer. regularly. Derrick sold cocaine and crack got indicated that Derrick Virnig, argued, Minneapolis, Richard S. Richardson MN, Antwoyn. Rich- Appellant, Spenc- drugs Derrick Jerome from his brother testimony exchange: included this er. ardson’s Tunheim, United sota. 1. The Honorable John R. Judge States District for the District of Minne-
Q. period sota, During the of 1998 on until and that the seized cocaine was on its 2006], your arrest June how much [in way Antwoyn. About 14 hours after you spend time did with Derrick? (and Nguyen’s arrest two hours after Ngu- much, At really A. first not too but yen load), would have delivered the Ngu- probably years year like the last two or yen’s cell phone received a call from Ant- that, a half I spent a lot of time woyn’s number. No one answered. him. Nguyen against Antwoyn testified at tri- Q. years, And the last two that’s al. He delivered, stated that he had or you getting big when were those deliver, attempted to kilograms of co- Antwoyn Spencer? amounts from caine to early between 2006 and A. Yeah. his arrest on August gov- The Q. you And wеre out on the streets ernment offered evidence to corroborate selling those amounts? First, Nguyen’s testimony. at the time of A. I?Was stop, the Wichita Nguyen had multiple Well, Q. breaking it selling down and phone numbers for Antwoyn stored two it in smaller amounts? cell phones. government established Yeah, it, A. that’s how I sold in a calling history Spencers between the smaller amounts. Nguyen, which Nguyen included call re-
Q. you And did ever ride around and ceived, days arrest, two before his from a thing do that same with Derrick? phone Second, traced back to Derrick. IA. did. eight kilograms of cocaine seized at Wich- *6 ita were distinctively packaged like a kilo- Co-conspirator Williams testified that gram of cocaine seized from Jermaine from 1998 to he ordered about 80 Richardson Third, two months earlier. ac- kilograms of cocaine from Antwoyn, and cording to other cоoperating witnesses, frequently that Derrick delivered the Antwoyn’s cocaine source in the drugs Antwoyn’s on summer of behalf. He further 2006 was an testified that after Asian male from getting prison out of in Texas. April getting he started cocaine from C. Derrick’s distribution of cocaine
Antwoyn again. Gentle, Jovan cooperating with law en- government The interrupt- also cited the forcement, purchases made two controlled delivery by Nguyen ed John to Antwoyn, powder of below, cocaine from discussed Derrick. Each as evidence of the drug time, he conspiracy. transmitting wore device. Gen- subsequently tle disappeared and was a The received instruc- fugitive at the time of trial (following the tracking tions Eighth Circuit Model trial, caught, pled guilty, he was and sen- Jury 5.06A-B, § Criminal Instruction tenced). government proved the two Antwoyn convicted and Derrick on the by types transactions two of evidence: the conspiracy count. tape-recorded conversations between Der- Antwoyn’s B. attempted possession Gentle, rick and and observations of sur- with intent to distribute cocaine veillance officers. Wichita, Nguyen Police arrested John in Antwoyn’s D. money laundering
Kansas, seizing eight kilograms after Park, cocaine at a traffic Before in stop. Nguyen buying Brooklyn home told Minnesota, police regularly he was a mule delivering Antwoyn gave cash to cocaine from checks, Texas to parties exchange Minne- third for which the consti- privilege under exercise their He also in his bank account. deposited
he testify. $4,000 there. tution and not cash deposited buy to from this account used funds then party and is not acquitted Frederick $22,900, pre- which he for cashier’s check appeal. to this Antwоyn purchased closing. sented name. in his own home determinations Drug-quantity F. Nye testified Agent Daniel Special
IRS any legitimate analysis his excluded drug agreed court The district money for the funds as sources presen- in the recommended quantities object Antwoyn did not purchase. home finding Antwoyn responsible reports, tence Nye’s testimony. of cocaine and 56.6 kilograms for 213.4 (1,174,680 kilo- of crack cocaine kilograms Spencer’s Frederick E. for Counsel and Der- marijuana equivalency), grams of opening statement grams of co- responsible rick for 677.52 statements, counsel for During opening of crack cocaine kilograms and 13.3 caine jury: to the Spencer stated Frederick (266,135.5 marijuana equiva- kilograms is accused of two counts Spencer Fred on quantities These were “based lency). The Government money laundering. trial With testimony witnesses.” in- is you will tell that he [Frederick] court re- respect Antwoyn, the district Antwoyn and his brothers volved with transcript preparation trial viewed “the drug trafficking alleged Derrick in this particular attention sentencing' —with allowing some of ring and that he is Williams, testimony to the of Vontrell flow to his busi- drug proceeds their Tunson, Scott, and Yama Oliver Jermaine ness. quantities and concluded “the Richardson” story another from Fred You will hear by proven these witnesses were suggested hear direct- Spencer, however. You will of the evidence.” preponderance always ly Spencer. from Fred He has Derrick, court respect to the district With *7 going He’s not cooperative. been prepara- transcript reviewed “the trial Fifth behind the Amendment. hide sentencing-with particular atten- tion for objected. The Antwoyn and Derrick testimony the of Vontrell Williams” tion to curаtive jury following the the gave court suggested quantities concluded “the and instruction, parties agreed: all to which proven by pre- were by these witnesses has ac- Spencer] for Frederick [Counsel ponderance of the evidence.” an knowledged that statement was [his] inadvertent mischaracterization G. Sentences law, your it in you may and not consider keep in mind that deliberations. Please Antwoyn to The district court sentenced in a criminal case has an the defendant on two concurrent 324 month terms States right absolute under United posses- conspiracy, attempted counts— fact testify. not Constitution cocaine. It sion with intent to distribute testify does not cannot that a defendant of 240 imposed a concurrent sentence also jury by the be discussed or considered count. money-laundering months on you considering are any way when Derrick to court sentenced The district your keep verdict. But arriving count and a conspiracy 292 months on the any kind in mind that no inference of months on the distribution concurrent 240 from the fact that other may be drawn may not decide to counts. may or defendants
II.
makes no difference whether that other
person
ais
defendant or named in the
conspiracy
A. The
distribute cocaine
indictment. You do not have to find
Antwoyn and Derrick contest their con-
persons
that all the
charged were mem-
(1)
convictions,
spiracy
arguing:
the con-
bers of the conspiracy.
spiracy
impermissibly
instructions
amend
Antwoyn
argue
and Derrick
indictment,
conspiracy charged
these instructions constructively amend
(2)
government
prove
failed to
the indictment “because the indictment re
Antwoyn
either
or Derrick acted to further
quired
jury
to find the defendants
fivе-year
within the
statute
guilty of the crime of conspiracy with each
of limitations.
other, while Instruction 20
specifi
[and 21]
cally
jury
instructed the
could find either
Jury
instructions
Spencers guilty
or both
simply
conspir
argue
and Derrick
any
person,
therefore,
other
jury
the district court’s
instructions 20 and not each other.”
21,
track Eighth
which
Circuit Model
Instructions 20 and 21 do not
5.06A-B,
Jury
§
Instruction
Criminal
con
indictment,
amend the
because the indict
structively amend the indictment. A con
require
ment does not
jury
“the
to find the
structive
an
amendment of
indictment oc
guilty
defendants
of the crime of conspira
curs when
instructions broaden the
cy with each other”
Spencers
as the
insist.
scope
of an indictment
permitting a
A defendant can be convicted of conspiracy
uncharged
conviction for an
offense. See
even if the
concludes that not every
Griffin,
866,
215 F.3d
alleged
one
to be involved in
conspira
(8th Cir.2000);
868-69
United States v.
cy actually participated.
Berger
See
(8th Cir.1986).
Begnaud,
States,
78, 81,
United
295 U.S.
55 S.Ct.
Ordinarily,
this court
reviews
(1935) (“It
jury instructions de novo. But both great weight of authority that although acknowledge they defendants never an charges indictment a conspiracy involv objected below, to the instructions and ing persons several proof and the estab plain thus review is for error. See United conspiracy against lishes the some of them Smith, (8th States v. material.”). only, the variance is not If Cir.2006); Gavin, United States v. acquitted, Derrick were could be Cir.2009). 546-47 others, convicted for conspiring with See, vice e.g., versa. United States v. Al 1 charges Antwoyn, Derrick, Count *8 len, 1248, (3d. Cir.1980) 613 F.2d 1253 and “knowingly Gentle and intentionally (where charged Allen, the indictment Coo conspired with each and with oth- [other] per, and Meador unlawfully conspired to ers to distribute” cocaine crack cо- drugs sell with each per other and with Jury caine. instruction 20 states one unknown, sons known and question “the is essential conspiracy element of is that not whether there was sufficient evidence persons “two or more agree- reached an that Allen conspired with Meador and/or ment or an understanding came to to dis- Cooper, but whether there was sufficient Jury tribute cocaine or crack cocaine.” conspired evidence that he with some oth instruction 21 part: states relevant person.”). er prosecution prove The must that each of charged defendants Count 1 The specifi indictment this case an agreement understanding reached or cally states that the conspired defendants with at least person. one other It with each other and with “An others. 874 plain commit error conjunc- court did not in the district may рhrased be
indictment
jury instructions consistent
model
jury
giving
tive,
instructions
when the statute
the law.
with
disjunctive, without cre-
in the
phrased
are
of the in-
amendment
ating a constructive
contend that
Antwoyn and Derrick
Thompson,
v.
...” United States
dictment.
do not constructive
jury
if the
instructions
(8th Cir.2009),
745,
quoting
748
560 F.3d
indictment,
1 of
ly
then Count
amend
Brown,
1073,
v.
330 F.3d
States
United
duplicitous, inappropri
is
the indictment
(8th Cir.2003); see also United States
1078
ately joining multiple
single
offenses
a
Cir.1994).
(8th
Behler,
875
argument
impair
Even if this
were not
the
Drug
efforts of the
Enforce-
ment Administration to ascertain
waived,
forfeita-
duplicitous.
the indictment was not
general
ble assets. The
returned a
Lueth,
government
prove
the
can
Under
guilty
verdict of
appeal-
on the count. She
disjunctive
where the indict
its case
the
ed, arguing
general
that the
verdict left in
conjunctive,
in the
that the
alleges,
ment
doubt whether the
convicted her of
committed the
offense
defendant
same
(for
conspiring to defraud the IRS
which
to distribute controlled
(conspiracy
sub
proof)
there was sufficient
or conspiring to
stances)
way (by selling
in more than one
(for which,
defraud the DEA
prosecu-
the
by selling marijuana).
cocaine and
807
conceded,
tion
there was not sufficient
context,
In
indicting
F.2d at 738-34.
this
proof).
Supreme
Court affirmed.
conjunctive
in the
does not
render a
The Court stated that
a jury re-
“[w]hen
Moore,
charge duplicitous. See
guilty
turns a
verdict on an indictment
(“Enumerating
at 793
the controlled sub
charging
conjunctive
several acts in the
stances did not render count I duplici
...,
the verdict stands if the evidence is
Lueth,
tous.”), citing
concerns,
Spencers’
convictions would
States,
stand.
v. United
According
Griffin
U.S.
S.Ct.
This
reviews
of
Richard-
court
novo,
supporting
testimony
dealing
evidence
conviction de
son’s
that Derrick was
most favorably
the evidence
to the
viewing
drugs
period.
within the limitations
verdict,
in
resolving conflicts
favor
argue that
Spencers
The
Richard
verdict,
it the
all
giving
benefit of
testify
son did not
that he rode around
reasonable inferences. See United States
selling
crack cocaine
cocaine and
with Der
(8th Cir.2002).
Cruz,
692, 697
285 F.3d
rick in
Spencers
2005-2006. The
focus on
upheld
jury’s
“The
verdict must be
if there
prosecutor’s
question
the
of “ever” in
use
is an
of the evidence that
interpretation
ing Richаrdson:
would allow a reasonable
to find the
Q. Did you ever ride around and do
beyond a
guilty
reasonable
defendant
thing
that
with Derrick?
same
Moore,
doubt.”
A.
I did.
Cir.1997).
881
added). But,
context,
(emphasis
in
govern-
The
contend
brothers
prosecutor
already
had
narrowed the
prove
they
ment
the burden to
had
scope of
questioning
to 2005-2006.
conspired
limi-
with each other within the
earlier,
questions
prosecutor
Three
period. This is incorrect as stated
tations
asked,
years,
“And the last
two
that’s
Behler, 14
above. See
F.3d at 1269-70.
you
getting
big
when
were
those
amounts
burden,
To
government
meet its
need-
Antwoyn Spencer?”
from
Critically, the
only
ed to
show
each defendant con-
prosecutor
question
spired
prefaced this
with the
with others within the limitations
period.
restrictive clause “And the last two years,”
referring
years
to the last two
before Rich-
government provided
ample
Thus,
ardson’s
arrest.
2006
reasonable
evidence that both
and Derrick
jury could
ensuing ques-
conclude
conspiratorial
committed
acts within the
you
tions—“And were
out on the streets
period. Testimony
limitations
indicated
amounts?”; ‘Well,
selling
breaking
those
it
alone,
during
Antwoyn received
amounts?”;
in
selling
down
it
smaller
24 kilograms
Nguyen.
of cocaine from
and “And
you
did
ever ride around
do
pur
Vontrell Williams testified that he
the same thing with Derrick?” —asked
Antwoyn following
chased cocaine from
his
the two-year period already
about
identi-
prison
release from
Jermaine
fied. Interpretation
testimony
is for the
that in
years
Richardson testified
the two
See,
jury.
Co.,
e.g., Alholm v. Am. S.S.
arrest,
he
large
before his
received
(8th Cir.1998) (where
of cocaine from Antwoyn.
amounts
Rich
testimony
interpreted
Alholm’s
could be
ardson
that he
also testified
rode around
multiple ways,
evidence at
trial
selling
“[t]he
cocaine and crack cocaine with Der
period.
support
type
rick
could
either
during
finding,
this
Derrick’s two con
de-
selling
pending
victions for
cocaine to
on
interpretation
testimony,
Gentle
that,
respond
performed”
conspiracy
Derrick
when a limitations
within the
defect is not in the indictment but
period). They
limitations
maintain that here
proof, the defense can be asserted for the first
the statute-of-limitations issue was evident
acquittal
time in a motion for
either before or
only
parsing
from a close
of the trial tran-
after the trial. See Grunewald v. United
script. This court need not here address the
States,
391, 396,
353 U.S.
S.Ct.
issue,
provided
government
waiver
as the
suf-
(1957) ("It
L.Ed.2d 931
was therefore incum
Antwoyn and
ficient evidence that
Derrick
prove
bent on the Government to
that the
conspiratorial
committed
acts within the limi-
still in
... was
existence ... and
period.
tations
that at least one overt act in
furtherance
*11
questions
jury
Antwoyn’s
factual
are for the
B.
attempted possession
and such
determine.”).
to
with intent to distribute cocaine
judge who heard Richard-
The district
Antwoyn contends that
the evidence is
testimony
exchange
understood the
son’s
support
insufficient to
attempted pos-
his
way. Denying
Spencers’
motion
this
session conviction. This court reviews the
found,
acquittal,
the court
“Richardson
sufficiency of the
supporting
evidence
drugs
testified that he sold
with Derrick
novo,
conviction
viewing
de
the evidence
Spencer
years prior
the two
to his ar-
verdict,
favorably
most
to the
resolv-
rest in June 2006.”
ing
verdict,
conflicts
favor of the
giving it the benefit of all reasonable infer-
Antwoyn and Derrick assert
that evi
Cruz,
ences.
at
they separately
dence that
sold cocaine to
parties
enough
third
is not
to
establish
According Antwoyn,
to
government
conspiracy.
See United States
Priesk
prove
failed to
that he took a substantial
(8th
orn,
Cir.1981)
658 F.2d
step
acquiring
towards
eight kilograms
(“Appellant correctly argues that the rela
of cocaine seized from Nguyen. Antwoyn
tionship
buyer
between
and seller does not
government
maintains that
relied on
a conspiracy.”)
establish
telephone
unanswered
call to Nguyen’s
phone after his arrest as the “substantial
Prieskom does not help
Spencers.
act,
step.”
contends,
This
is too
It recognized that evidence does not suffi-
ambiguous to
step.
be a substantial
See
ciently
buyer-seller
establish
Davis,
United States v.
“only
situations where there is
evidence of
(8th Cir.1993) (“Conduct is not considered
a ‘single
agreement’
transient sales
a substantial step unless it
strongly
is
drugs
small amounts of
сonsistent with
corroborative of the criminal intent of the
case,
personal use.” Id. at 634.
In this
accused.”);
Nix,
Fryer
multiple
the evidence indicates
transac-
(8th Cir.1985) (the act cannot
ambigu-
be
large
drugs,
tions
amounts of
and an
ous,
“unequivocal”).
but must be
ongoing relationship
Antwoyn,
between
Derrick,
co-conspirators.
and other
Antwoyn relies on United States v.
sufficiently
evidence here
establishes con-
Joyce,
Cir.1982),
Even as the sess cocaine with intent to distribute. government prove they conspired Joyce had to flew from City Oklahoma to St. with each other within peri- cocaine, the limitations purchase Louis to arrived at the od, Jermaine Richardson arranged $22,000 testified that cash, hotel room with when he was selling drugs with Derrick in momentarily package handled the 2005-06, Derrick got drugs his from Ant- cocaine. But negotiations broke down in addition, woyn. room; officers executing the hotel Joyce left with no intent search Spencers’ warrant returning mother’s purchase. make a This home in drug pack- 2007 found scales and court held that a reasonable could not materials, as well as documents and step, find substantial because “the [at- tying Antwoyn other items and Derrick to tempter’sj passed act must prepa- have the home. The evidence here is sufficient ration if stage interrupted so that it is not to establish conspiracy Antwoyn extraneously, crime,” between it will result in a and Derrick “Joyce, within the statute of limita- despite having opportuni- both the tions. ty ability purchase the cocaine at
878
the
delivering
eight
testified that he was
unambiguously re-
agreed upon price,
the
kilograms
Antwoyn,
F.2d at 841-42.
and that he
fused....”
693
had
alrеady
kilograms
24
of
delivered
cocaine
subsequent
“turned
Joyce and
decisions
Antwoyn
in
before his Wichita
2006
the
on
it was
defendant himself—(cid:127)
whether
Co-conspirators
arrest.
testified
Ant-
party
third
ended the
rather than a
—who
woyn’s
supply
source of
the summer of
toward,
leading
but not
chain of events
2006 was an
male from Texas. A
Asian
in, the commission
a substan-
resulting
of
kilogram
from
of cocaine seized
Jermaine
Burks,
States v.
135
tive crime.” United
Richardson,
Richardson testified he
(8th
which
Cir.1998),
582,
citing
584
United
F.3d
Jonsson,
got
Antwoyn,
packaged
from
was
in the
15 F.3d
762
States v.
Mims,
Cir.1994);
eight
the
v.
same distinctive manner as
kilo-
see also United States
(8th Cir.1987).
grams
Nguyen. Telephone
812 F.2d
1078
from
seized
Burks,
executed a search warrant
officers
Antwoyn
Nguyen
records
show
were
of
house
after
the defendant’s
minutes
frequent
during
telephone contact
the
postal
delivered
of co-
inspectors
a box
jury
summer
2006. The
could reason-
opened
package,
had not
caine. Burks
evidence,
ably
along
infer
this
from
of the
but had cut one side
box. “Officers
Nguyen’s phone,
the missed phone call to
utility
package,
knife beside
found a
pos-
ordered and intended
in the
and elsewhere
master bedroom
eight kilograms
sess the
of cocaine.
blade,
razor
plate,
found a
and a small
Burks,
plastic baggie with some residue.”
C.
Derrick’s distribution
cocaine
They
135
at 583.
also
“seven
found
on
Derrick was convicted
two
hundred dollars
cash
three Western
cocaine,
counts of distributing
both based
receipts”
Money
Union
Order
from Burks
on controlled sales to Gentle. Derrick ar
Diego,
to a man in
San
source of
gues that
the district court violated his
package.
Id. Burks was convicted for at-
rights under
Amendment’s
the Sixth
Con
possession with intent
tempted
to distrib-
by allowing
frontation Clause
evidence of
affirmed,
ute
holding
cocaine. This court
buys despite
these controlled
Gentle’s una
from Joyce
case differs
because
“[t]his
vailability. This court reviews de novo the
by
here it was the intervention
govern-
the pro
determination of
court’s
agents
ment
ended the chain of
tections
by
afforded
the Confrontation
“Furthermore,
at 584.
events.” Id.
Clause,
underlying
and reviews
factual
presented
was
with other circumstan-
determinations for clear error. See Unit
supports
tial evidence that
conclusion
Bordeaux,
ed States v.
that Burks’s actions
a substan-
constituted
(8th Cir.2005).
possession
tial
actual
step toward
may
cocaine.
‘A reasonable fact-finder
The Confrontation Clause bars
beyond a
guilt
find
reasonable doubt based
“admission of testimonial statements of a
” Id.,
solely on circumstantial evidence.’
appеar
witness
at trial
who did not
unless
Garrett,
quoting
testify,
he was unavailable to
and the de
(8th Cir.1991).
474, 476
prior opportunity
fendant had had a
cross-examination.”
Wash
Burks,
Here,
govern
as
Crawford
36, 53-54,
ington, 124 S.Ct.
U.S.
defendant,
ment, not the
ended the chain
(2004).
Burks,
Gentle
L.Ed.2d
As in
the government
events.
fugitive at
trial.
presented
the time of Derrick’s
circumstantial
evidence
government proved
the two
possess
ordered
intended to
transactions
types
eight kilograms
Nguyen
tape-record-
cocaine.
two
of evidence: the
verdict,
resolving
between Derrick and to the
ed conversations
conflicts in
Gentle, and the observations of surveil-
*13
verdict,
giving
favor of the
it the bene-
lance officers.
Cruz,
fit of all reasonable inferences.
285
F.3d at 697.
recordings
not im
tape
do
Derrick’s statements on
plicate Crawford.
1. Proceeds
party-oppo
tape
are “admissions
Sрecial Agent
Nye
IRS
Daniel
on that basis.
nent” and are admissible
analysis
any
testified that his
Tolliver,
excluded
le
454
See United States v.
(7th Cir.2006).
660,
gitimate funds
of money
Gentle’s state
as sources
for
665
tape
purchase.
evidence,
ments on the
are admissible because
the home
This
admit
They
they
put
are nontestimonial.
Der
objection,
ted without
is sufficient. See
context, making
statements “into
rick’s
Pizano,
707,
United States v.
723
jury.”
at
intelligible
admissions
for
Id.
(8th Cir.2005)
(holding
circumstantial
providing context for
666. “Statements
evidence of a defendant’s lack of legitimate
other admissible statements are not hear
sufficiently
income
establishes that funds
say
they are not offered for their
because
purchase
defendant used to
real property
result,
of
truth. As
admission
such
drug proceeds).
are
evidence
not offend the
context
does
Con
Antwoyn
contends
he is entitled to
frоntation Clause because the declarant is
Supreme
new trial under the
Court’s
against the
not a witness
accused.” Id.
intervening decision in United States v.
(citations omitted).
Santos,
507,
2020,
553 U.S.
128 S.Ct.
170
As for the observations of the sur
(2008).
that,
L.Ed.2d 912
Santos holds
officers,
veillance
the officers were live
the context of a gambling organization, the
witnesses,
subject
to cross-examination.
“proceeds”
word
in the money-laundering
explain
Derrick does not
how their testi
profit,
gross
statute refers to
not
revenue.4
mony implicates Crawford.
that,
reasons
because the
distinguish
instructions
his trial do not
Antwoyn’s money laundering
D.
“profits”
“receipts,”
between
his con-
Antwoyn objects
money-launder-
to his
impermissibly
receipts
viction is
based on
(1)
grounds:
conviction on two
there is
profits.
rather than
money
insufficient evidence that the
used
Other circuits hold-—and this court
purchase
his home in 2005
“pro-
agrees
apply
Santos does not
drug trafficking,
ceeds” of his unlawful
—that
drug context. See United States v. How-
(2) there is insufficient evidence that he
ard,
(4th Cir.2009)
760,
Fed.Appx.
309
771
“intended to conceal” the source of the
(“Santos
(unpublished)
does not establish a
money.
sufficiency
This court reviews the
binding precedent
‘proceeds’
that the term
supporting
of the evidence
a conviction de
novo, viewing
favorably
the evidence most
‘profits,’ except regarding
illegal
means
an
plurality opinion,
'proceeds'
meaning
money
Because Santos was a
its
within the
-,
precedent
holding
gar-
laundering
is the narrowest
statute.”
553 U.S. at
SOB,
County
acknowledges,
nered five
Inc. v.
votes. See
S.Ct. at 2033. Justice Stevens
of
Benton,
(8th Cir.2003),
rightly argues,
legisla
862 n. 1
Justice Alito
“[a]s
States,
citing
history
§
Marks v. United
430 U.S.
tive
[18 U.S.C.]
1956 makes it
(1977).
Congress
'pro
S.Ct.
775-76 (2) drugs, and he took a possess the sub- testimony “lack[ed] ness’s interview and step possession stantial towards reliability indicia of to serve as sufficient drags. Joyce, calculating quantity of cocaine basis for ”). (8th Cir.1982). Specifically, step base.... This must if Richardson and Derrick assert “strongly criminal in- corroborate[ his ]” accurately testified about Williams court attempts tent. Id. The to distin- quantities they purchased, Richard drug guish Joyce, good but the case remains law have netted over million in son would $6 in this circuit and is to this applicable would have profit, and Williams netted purported Joyce, offense. the convic- $600,000. government disputes over tion for lack was overturned substan- Spencers’ calculations. step though government’s tial even phone informant described numerous con- presided
The district court at tri deal, Joyce up versations to set al, observed the demeanor of the wit *16 nesses, Joyce City trial flew from Oklahoma to St. transcript and reviewed the sentencing. before In its written state purchase drugs, Joyce Louis to imposing ment for of reasons sentences for went to a hotel room where the deal was to Derrick, Antwoyn and both the district place. Joyce take Id. at 839-40. carried that it court noted overruled their chal $22,000 in physically cash and handled the lenges drug-quantity to the calculations. package containing the cocaine negoti- but each, In the district court wrote ations broke down the hotel room when drag-quantity calculations “were on based police the undercover to officer refused testimony of trial witnesses.” “After open package. Joyce Id. at 840. left viewing testimony at trial and review making purchase without a and was arrest- transcript preparation the trial for ed. Id. ... sentencing concluded that Court really regarding There is no evidence quantities suggested by these wit specific steps Antwoyn took toward the proved by preponderance nesses were possession particular eight the evidence.” of this kilo- grams Nguyen of cocaine seized from on The district court’s careful determina- evidence, August only mini- 2006. The clearly tions were not erroneous. best, mal step substantial towards III. completion of the offense is the unan- phone Nguyen swered call received from judgment The of the district court is Antwoyn’s phone following Nguyen’s ar- affirmed. government, apparently
rest. The BEAM, Judge, concurring Circuit court, heavily relies on inferences raised dissenting. from evidence of the “normal” course of Nguyen Antwoyn business between to opinion
I concur in the court’s except for support Antwoyn’s attempt charge. That Antwoyn Part II.B. Spenc- which concerns alleged attempt possess might support er’s the cocaine evidence con- conspiracy proof Antwoyn well short of ceived from do little if anything but falls viction attempt. prove August that on at- tempted possess particular eight key in the difference between lies kilograms. attempt and the law of con- the law of attempt, a the law of spiracy. Under I Accordingly, would reverse the at- for step required is order substantial tempt conviction and remand the case to convicted. In con- the defendant to be court for resentencing of Ant- trast, ... require does not an woyn Spencer without consideration of overt act. that crime. Robinson, v. Cir.2000). (8th n. 564-65 in support
Each case the court cites distinguishable.
its affirmance is
United
Burks,
States
1998), example, supports proposi
tion that but for the intervention of law
enforcement, Nguyen complet would have delivery of the cocaine to
ed his was sufficient to such behavior Neivi Demaris GUILLEN-HERNAN- step.” at 584. support “substantial Id. DEZ; Keni Yamileth Guillen-Her Joyce problem But the is still there. No nandez; Ana Guillen-Hernan Sinia step by Antwoyn. was taken substantial dez, Petitioners, Burks, the case revolved around Burks’ and it
attempted possession was Burks law enforcement cut short mid HOLDER, Jr., Attorney Eric H. Likewise, stream. Id. United States v. *17 States, General of the United inapposite. Garrett is Respondent. Cir.1991). the defendant Garrett completed telephone drug calls to a courier No. 09-1279. attempt in an cocaine from the obtain courier, knowing police not had al of Appeals, United States Court ready arrested the courier and seized the Eighth Circuit. drugs. Again, Id. 476-77. the instant different, Submitted: Oct. totally case is as there was no confirmed contact from this 25, 2010. Filed: Jan. regarding shipment. case this gleaned The inferences to be from the
facts this case fall well short of estab-
lishing step posses- substantial toward
sion of the particular eight kilograms pos- by Nguyen
sessed at the time of his arrest. surrounding
The inferences from the facts often dealt with an Asian Texas,
male from dealt in multi-kilo levels cocaine, packaging that the of the co- Nguyen possessed
caine matched other co-conspirators they claimed
batches re-