UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JESSE ALLEN VAZIRI, COREY JESS ADKINS, and JACQUELINE LOU QUARTERMAN, Defendants - Appellants.
Nos. 97-8117, 98-8010 & 98-8026
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
JAN 6 1999
PUBLISH. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF WYOMING (D.C. NO. 97-CR-024-D)
Michael H. Reese, Wiederspahn, Liepas & Reese, P.C., Cheyenne, Wyoming, for Appellant Adkins.
Thomas B. Jubin, Cheyenne, Wyoming (Michael H. Reese, Wiederspahn, Liepas & Reese, P.C., Cheyenne, Wyoming, joining with him on the briefs), for Appellant Quarterman.
Patrick J. Crank, Assistant United States Attorney (David D. Freudenthal, United States Attorney, and David A. Kubichek, Assistant United States Attorney, with him on the brief), Casper, Wyoming, for Appellee.
ANDERSON, Circuit Judge.
Jesse Vaziri, Corey Adkins, and Jacqueline Quarterman were convicted in a joint trial in the district court of conspiracy to distribute controlled substances, in violation of
Appellants challenge the fairness of their trial, arguing that perjured testimony went to the jury uncorrected and that witnesses illegally testified in exchange for promises of leniency from the government. Appellants also contest their conspiracy convictions specifically, arguing that there was insufficient evidence to support the jury‘s verdicts, that general verdicts on a multiple-object
For the reasons discussed below, we affirm appellants’ convictions and sentences.
I. BACKGROUND
Jacqueline Lou Quarterman and two of her sons, Corey Jess Adkins and Jesse Allen Vaziri, lived in Wyarno, Wyoming, during early 1997. Wyarno, near Sheridan, Wyoming on a two-lane highway, consisted of a bar/post office, Quarterman‘s log house, and several trailers. Quarterman owned the entire town.
On March 15, 1997, Quarterman, Adkins, and Vaziri were arrested for drug offenses, and on May 15, 1997, they were named in a five-count superseding indictment. Count One charged all three with conspiracy to distribute controlled substances in violation of
At a joint trial held August 19-September 2, 1997 in the district court, a jury convicted each defendant as charged in Counts One through Four. The government presented extensive evidence, only some of which is detailed here.
Mark Addington served as an informant during the government‘s investigation. He testified at trial that he was arrested on January 7, 1997, for marijuana possession, and the next day he agreed to cooperate with the Wyoming Division of Criminal Investigation (DCI) in exchange for a recommendation of a reduced charge. At that time, Addington began placing telephone calls to Quarterman as part of an undercover operation.
Addington testified that he participated in a series of controlled drug buys during which he wore a recording device. (At trial, prosecutors introduced recordings made with the device.) On January 23, 1997, he called Quarterman to arrange a drug buy, then went to her residence. In her bedroom he was introduced to Vaziri and a woman named Kelly. Kelly and Vaziri left the bedroom. Addington then purchased, from Quarterman, a gram of cocaine for $100 and six hits of LSD for $6 apiece. As Quarterman handled the LSD, Addington was
According to Addington, on January 30, 1997, he called Quarterman and arranged to meet her that same day at a set location in Sheridan to purchase drugs. In Sheridan, Vaziri and Quarterman were waiting for him. Quarterman got into Addington‘s car. Addington purchased 100 hits of LSD from her for $500.
Addington placed additional phone calls to Quarterman on March 7, March 10, and March 12, 1997. In these phone calls he arranged for another drug transaction, and asked if he could bring along his “friend” from Red Lodge, Montana, “John Pettimore” (DCI Special Agent Chris Peters). On March 12 he and Agent Peters traveled to Wyarno, where Agent Peters bought one-half ounce of methamphetamine from Quarterman. Agent Peters testified at trial that during this transaction, Quarterman told Agent Peters that the methamphetamine had come from California. Peters asked who had gone to get it, and according to Peters, Quarterman replied, “My sons.” R. Vol. 18, Trial Transcript [hereinafter Tr.] at 538. Peters asked if she could get him an entire ounce of methamphetamine. Quarterman told Peters she didn‘t know if she wanted to sell an ounce, but that she‘d “see if Corey would.” R. Vol. 18, Tr. at 541.
The government introduced a recording of a March 13, 1997 phone call from Addington to Quarterman. Wyoming DCI Agent Louey Williams monitored
[Quarterman]: I uh, I kinda doubt whether he, just a second let me . . . (Talking to someone in her home: Jessie, Jessie? Do you have any idea um, how much Corey has left? [Jesse Vaziri]?: No, I don‘t. Quarterman: He wouldn‘t want to sell a whole ounce would he? [Vaziri]: No.) I was just asking my other son if he . . .
[Addington]: Uh huh. Probably not then?
[Quarterman]: Probably not. Uh, I wasn‘t sure. I, I haven‘t even talked to him since he got back.
Tr. of Phone Call, Appellee‘s Add. at 36. Addington testified that he recognized the voice in the background as that of Jesse Vaziri.
On the evening of March 13, 1997, Peters and Addington returned to Wyarno to make additional purchases. Peters testified that Quarterman was not
On March 14, 1997, Peters and Addington again traveled to Wyarno to meet Quarterman. At trial tape recordings were played and Peters testified to explain the conversations. He testified that at first Quarterman sold him only one-quarter ounce of methamphetamine. He asked Quarterman whether she had any more, and she said no but offered to see if Adkins had any. Peters told her to see if she could get him an ounce. She said Adkins might be willing to sell an ounce to get rid of it, because while he was in California, there had been rumors that he was going to get busted. Peters testified that Quarterman then left the house; when she returned she told Peters that Adkins would not sell an entire ounce. She said that Adkins preferred to sell by the gram because he had been cheated in California and had to make up the difference. Peters told her that he wanted four more grams. Quarterman then sold him two more grams herself, and
According to Peters’ testimony, during this visit Quarterman asked Peters which he had liked better, the methamphetamine she had sold him or the methamphetamine Vaziri had sold him. She also discussed Adkins’ recent trip to California, stating that Adkins had bought a total of about five ounces.4 She said Adkins had given her half of those amounts. She told Peters that she didn‘t sell in ounce quantities because she could get in more trouble that way.
Addington testified that at his home on the night of March 14, 1997, at 11:00 PM his wife answered the phone and the caller immediately hung up. At about 11:45 PM he answered another telephone call. The caller stated, “Pig,
Addington testified that at about 2:00 AM on March 15, 1997, he received a phone call from Quarterman. Quarterman asked where “John” (Agent Peters) had been staying. Addington replied that he was staying at the Mill Inn (the motel in Sheridan where Peters in fact was staying). Quarterman told Addington that Adkins had obtained telephone records from the Mill Inn showing calls to the DCI, the sheriff‘s office, Cheyenne, and Addington‘s residence. She asked him whether he knew if “John” was an undercover agent. Addington said no. Addington heard Adkins in the background say, “[A]sk him if he‘s a f------ narc.” R. Vol. 15, Test. of Addington at 93. Addington reported this call to Agent Williams. Williams testified that after the call from Quarterman with Adkins in the background, Addington was able to identify the 11:45 PM caller more positively as Adkins.
On March 15, 1997, Quarterman, Adkins, and Vaziri were arrested, and each gave statements to police. Agent Williams testified that Quarterman was
Agent Williams testified that Adkins was arrested while driving a blue van, with his girlfriend Candace Kinnaird riding in the passenger seat. Wyoming DCI Agent Mike Burnett testified that Adkins admitted that two weeks earlier he had traveled to Bakersfield with Kinnaird and another couple, and that he had
Wyoming DCI Officer Michael Wenz testified that after Vaziri was arrested, he admitted to transporting one ounce of methamphetamine from Bakersfield in the spring of 1996, and to reselling it in quantities ranging from one-quarter gram to one gram. Vaziri admitted to another such trip four months later when he and a cousin obtained two ounces of methamphetamine for resale. Vaziri also stated that on January 23, 1997, he purchased 250 hits of LSD in Denver, Colorado, of which he resold 126 hits and used 4 hits. He acknowledged selling two grams of methamphetamine to Agent Peters on March 13, 1997.
At sentencing hearings, Agent Williams testified that on March 15, 1997, during the execution of a search warrant, he found a 9mm semiautomatic rifle and a .22 semiautomatic rifle in Quarterman‘s residence. Adkins’ fingerprints were found on the .22 and on .22 ammunition recovered from his trailer. Williams further testified that Quarterman told him that the .22 rifle belonged to her nine-year-old son Hunter. She said the 9mm rifle belonged to Adkins. Williams testified that Vaziri, who was living with Quarterman at the time of his arrest, told Agent Wenz that both guns belonged to Adkins, and that two to four weeks prior to their arrest Adkins had given the guns to Vaziri because Adkins was a convicted felon. There was also evidence that the 9mm gun was on Quarterman‘s dining room table on March 14, 1997; that during Agent Peters’ visit that day,
Each defendant was sentenced separately. Quarterman received 108 months imprisonment for each count, to be served concurrently; Adkins received a total of 200 months; Vaziri received concurrent sentences of 78 months for each count.
II. DISCUSSION
A. Presentation of Allegedly Perjured Testimony
All three appellants contend that perjured testimony was presented at trial and that this perjury went to the jury uncorrected, due to errors by the prosecutor and/or the court. A conviction obtained by the introduction of perjured testimony violates due process if (1) the prosecution knowingly solicited the perjured testimony or (2) the prosecution failed to correct testimony it knew was perjured. Napue v. Illinois, 360 U.S. 264, 269 (1959). “A new trial is required if the false testimony could in any reasonable likelihood have affected the judgment of the jury.” Giglio v. United States, 405 U.S. 150, 154 (1972) (quoting Napue, 360 U.S. at 271) (internal quotes and alterations omitted).
In appellants’ briefs on appeal, only Quarterman has identified precisely what testimony was allegedly perjured—the testimony of Mark Addington
Q: Did you have sex with her, Mr. Addington?
A: No, I did not.
Q: Then how did she wake up in your apartment the next morning?
A: I woke up. I had passed out. She was in bed with me. I believe we went back to have sex and I passed out.
R. Vol. 15, Test. of Addington at 202. Counsel for Vaziri and Adkins then conducted recross-examination. Later, when Addington had finished testifying and the jury had been excused, the court told Addington it doubted the truthfulness of some of his testimony, mentioned the possibility of perjury charges, and warned Addington not to say another word.
At the end of trial, the prosecuting attorney and counsel for Quarterman both emphasized Addington‘s relationship with Quarterman and the fact that he may have lied about it. The prosecutor specifically pointed out that Addington had misrepresented the nature of his relationship with Quarterman, and told the jurors, “if you think someone knowingly lied to you, folks, in this courtroom, you can completely disregard their testimony if you want to. . . . Or you can give it such weight and credence as you think it deserves.” R. Vol. 24, Tr. at 1935. He continued by arguing that Addington‘s sexual relationship with Quarterman had “nothing to do with entrapment.” R. Vol. 24, Tr. at 1936. Counsel for Quarterman also highlighted Addington‘s relationship with Quarterman, arguing that Quarterman had been entrapped.
If a person is shown to have knowingly testified falsely concerning any important or material matter, you obviously have a right to distrust the testimony of such an individual concerning other matters. You may reject all of the testimony of that witness or give it such weight or credibility as you may think it deserves.
R. Vol. 25, Tr. at 2011.
Appellants argue that Addington gave perjured testimony that went to the jury uncorrected. We disagree. Inconsistencies in Addington‘s testimony were exposed on cross-examination, emphasized on redirect, and brought out again in closing arguments. Although Addington appears to have remained reluctant throughout his testimony regarding the relationship, it is plain from the record that the jury was apprised of the possibility that Addington had had a sexual relationship with Quarterman and had lied to them about it.
Quarterman points to the court‘s statements to Addington as evidence that Addington‘s allegedly perjured testimony went to the jury uncorrected. On August 21, 1997, Addington had finished testifying and the jury had been dismissed for the day, when the court, citing an “obligation” to ensure the truthfulness of testimony, expressed doubts about some of Addington‘s statements:
During the course of your testimony here, you‘ve said in response to a question by defense counsel that you acknowledge that you had heard that Jackie Quarterman had a crush on you; and while I don‘t have the testimony verbatim, it is my recollection that you left the jury with the impression that your relationship was a relationship of one drug user to another and that you had no other special hold on this defendant.
Well, I don‘t think it is an entirely truthful statement to say that you heard from people that she had a crush on you. That may be the case, of course, but I would think that finding that defendant in your bed would be a good hint.
R. Vol. 16, Tr. at 455. The court then admonished Addington not to say another word because he risked prosecution for perjury.
Taking these remarks in context, we read the court‘s statements as indicating only that Addington‘s initial statements about his relationship with Quarterman left the jury with a false impression, not that the jury ultimately was unaware of the nature of the relationship. The court is referring to blatant inconsistencies of which—by that point, when Addington had admitted waking up in bed with Quarterman—the jury must have been well aware. Furthermore, the judge made this statement long before closing arguments, where the prosecution as well as defense counsel made additional efforts to highlight inconsistencies in Addington‘s testimony. The jury could not possibly have been left with the impression that Addington‘s relationship with Quarterman was simply that of one drug user to another.
We conclude that the jury was properly apprised of the possibility of false testimony, and that at that point it was for the jury to settle any related questions of credibility.
B. United States v. Singleton
Appellants argue that various witnesses testified at trial pursuant to offers of favorable treatment by the government, in violation of the rule of United States v. Singleton, 144 F.3d 1343 (10th Cir.), vacated & reh‘g en banc granted, 144 F.3d 1361 (10th Cir. 1998). Defense counsel did not raise the Singleton issue at trial. Reviewing only for clear error, we conclude that the district court was not required to raise the issue on its own motion in anticipation of Singleton.
Each appellant raises various issues regarding the sufficiency of evidence and the propriety of jury instructions regarding Count One of the indictment, the conspiracy charge.
1. Insufficiency of the Evidence and Variance
Adkins and Vaziri contend that there was insufficient evidence to convict them of any conspiracy to distribute controlled substances. In addition, Quarterman and Vaziri argue that there was a prejudicial variance between Count One of the indictment and the evidence of conspiracy presented at trial. These latter claims regarding variance are also essentially arguments about the sufficiency of evidence: they argue that the evidence was insufficient to show the single unitary conspiracy charged in the indictment. See United States v. Daily, 921 F.2d 994, 1007 (10th Cir. 1990), overruled on other grounds by United States v. Gaudin, 515 U.S. 506 (1995) (overruling recognized in United States v. Wiles, 102 F.3d 1043, 1054 (10th Cir. 1996) (en banc)).
In addressing these claims challenging the sufficiency of the evidence, we review the record de novo, viewing the circumstantial and direct evidence along with the reasonable inferences therefrom in the light most favorable to the government, to determine whether a reasonable jury could find Quarterman,
Quarterman contends that “[t]he evidence, at best, points toward three users and sometime retailers, often acting independently, but occasionally co-operating with one other defendant for the duration of a particular transaction or joint venture.” Quarterman Br. at 17. Adkins argues that although he may have been present during illegal transactions, “[a]t best, the evidence merely reveals that Corey Adkins was a buyer/user.” Adkins Br. at 14. Vaziri argues that he distributed drugs independent of his mother and brother, and that to the extent he may have been involved in their dealings, such involvement was merely incidental.
We think that the jury was justified in concluding otherwise. In the first place, there was considerable evidence of conspiratorial agreement and
While it would be possible to conclude from the record that Vaziri did some independent drug dealing and that he was involved in the conspiracy to a lesser degree than Adkins and Quarterman, there was sufficient evidence for the jury to conclude that Vaziri did concur in and promote the conspiracy‘s illegal objectives. Wiberg‘s testimony tends to show that Quarterman, Adkins, and Vaziri were involved in a joint operation to sell drugs and that they protected each others’ interests. And during Addington‘s March 13, 1997 phone call to Quarterman where Vaziri is heard in the background, even though Vaziri apparently told Quarterman that he didn‘t know how much methamphetamine Adkins had, the fact that Quarterman asked Vaziri this question permits an
In sum, while it is possible to credit appellants’ arguments that their drug-selling activities were only loosely integrated, those arguments do not save them where each was aware of and complicit in the larger venture. The evidence was sufficient to show that Quarterman, Adkins, and Vaziri knowingly agreed to cooperate in the distribution of illegal substances.
2. Failure to Give a Multiple-Conspiracy Charge
Vaziri and Quarterman contend that the district court erred in not giving a multiple-conspiracy instruction to the jury. No one requested such an instruction at trial, and therefore we must determine only if the court committed plain error in not giving such an instruction sua sponte. See United States v. Jamieson, 806 F.2d 949, 953 (10th Cir. 1986). There was no such error here; the relevant instructions given by the district court, see R. Vol. 25, Tr. at 2014, 2018-19, tracked the instructions approved in United States v. Evans, 970 F.2d 663, 675 (10th Cir. 1992), and adequately conveyed the government‘s burden of proof, see id.
3. Multiple-Object-Conspiracy Issues
Appellants point out that the jury returned general verdicts on Count One of the indictment, which charged a multiple-object conspiracy involving (1) LSD, (2) methamphetamine, (3) cocaine, and (4) marijuana, listed in the conjunctive. Appellants argue that because the government did not prove each of the four objects alleged in the indictment, various errors infected the jury‘s deliberations and verdicts.
First, appellants allege error in the court‘s instruction to the jury regarding a multiple-object conspiracy. Over objections by defense counsel, the court instructed the jury “that when an offense is charged in the conjunctive, the offense may be proven in the disjunctive.” R. Vol. 25, Tr. at 2020. The court continued:
Thus, in order for you to find the defendants guilty of Count One of the superseding indictment, you must find beyond a reasonable doubt that at least one of these four purposes were objects of such conspiracy, but you need not find that all of these purposes were objects of such conspiracy. You must, however, unanimously agree on which object or objects of the conspiracy the defendants agreed to violate.
R. Vol. 25, Tr. at 2021.
Appellants next argue, without citing legal authority, that the district court erred in refusing to require the jury to arrive at special verdicts, one for each of the four illegal substances in the indictment. Appellants contend further, again without legal support, that the court improperly denied motions for acquittal as to the LSD, cocaine, and marijuana portions of the indictment. Based on our reading of Griffin, we do not think the district court was required to treat each substance separately in ruling on motions for acquittal or in submitting verdict forms to the
Indeed, if the evidence is insufficient to support an alternative legal theory of liability, it would generally be preferable for the court to give an instruction removing that theory from the jury‘s consideration. The refusal to do so, however, does not provide an independent basis for reversing an otherwise valid conviction.
Griffin, 502 U.S. at 60.
D. Sentencing Issues
1. Obstruction of Justice Enhancement
Adkins and Quarterman contend that their sentences were improperly enhanced for obstruction of justice based on evidence of the phone calls to Addington during the night of March 14-15, 1997. The Sentencing Guidelines provide the following:
If the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense, increase the offense level by 2 levels.
Adkins argues only that the testimony of Addington on which the court relied was hearsay testimony that did not possess sufficient reliability. The Sentencing Guidelines provide that courts “may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.”
Although as to some matters Addington was evidently not the most credible of witnesses, his testimony regarding the phone calls was substantially corroborated. Quarterman admitted that she made the 2:00 AM phone call, and that she and Adkins had the Mill Inn records at her residence, where they were recovered by law enforcement. Addington‘s identification of the 11:45 PM caller as Adkins was not directly corroborated. However, the fact that Addington told Agent Williams about the 11:45 call and first tentatively identified Adkins’ voice before the 2:00 AM call adds credibility to Addington‘s more confident identification of Adkins after 2:00 AM. The district court was entitled to credit this testimony.
I don‘t think law-abiding citizens call folks at two o‘clock in the morning to ask “what‘s up.” For me to accept the defendant‘s position that that was simply a casual call to find out whether or not she was under investigation stretches credulity.
. . . .
Based upon my recollection of the evidence, that phone call was made by this defendant and her co-conspirators in the early morning hours of March 15th for one purpose: To affect the outcome of this case and attempt to obstruct justice.
R. Vol. 32, Quarterman Sent. Tr. at 80-81. Based on the circumstances surrounding the call, including its timing and content, we find ample support for the court‘s finding that Quarterman‘s call to Addington was a threat, and uphold the resulting enhancement of her sentence.
2. Weapons Possession Enhancement
Appellants each contend that their sentences were improperly enhanced for possession of firearms based on evidence regarding the .22 rifle and the 9mm rifle. Quarterman contends that the rifles were not connected with the conspiracy,
The Sentencing Guidelines provide for an offense level enhancement of two points “[i]f a dangerous weapon (including a firearm) was possessed” during a drug conspiracy.
We stated the appropriate legal standard in United States v. Smith, 131 F.3d 1392, 1400 (10th Cir. 1997):
“The [enhancement for weapon possession] should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.”
USSG § 2D1.1 , comment., (n.3). The government bears the initial burden of proving possession by a preponderance of the evidence, and possession may be satisfied by showing mere proximity to the offense. See United States v. Roberts, 980 F.2d 645, 647 (10th Cir. 1992). The enhancement is then appropriate unless the defendant proves the exception—that it is clearly improbable the weapon was connected with the offense. See id.
The burden therefore falls on appellants to show that it is “clearly improbable” that either gun was “connected with” the conspiracy. Although Vaziri and Quarterman presented convincing evidence that neither ever used or owned guns, that does not establish a lack of connection with the conspiracy. See Smith, 131 F.3d at 1400. There was also evidence that Vaziri and/or Quarterman were merely storing the guns for other persons. Even if credited, this evidence is not enough to meet the “clearly improbable” standard, because no one established that coconspirator Adkins had not likely used the guns in connection with the conspiracy. Therefore we uphold the weapons possession enhancements.
3. Drug Quantity Calculations
The district court based Adkins’ sentence on a total of 108 grams of methamphetamine. See R. Vol. 28, Adkins Sent. Tr. at 107. This included an estimated 80 grams7 from Adkins’ March 1997 trip to California, and another 28 grams from Quarterman‘s February 1997 trip. See R. Vol. 28, Adkins Sent. Tr. at 91-93, 107. The evidence showed that Adkins personally handled the 80 grams, and we do not understand him to contest that amount. The 28-gram quantity was properly attributed to him based on the fact that the evidence considered at
Based on the foregoing considerations, we AFFIRM appellants’ convictions and sentences.