United States v. Fletcher , 497 F. App'x 795 ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
September 13, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 11-6277
v. (W.D. Oklahoma)
JOHN CHARLES FLETCHER, a/k/a (D.C. No. 5:09-CR-00021-M-1)
Loc, a/k/a Big Loc,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
Defendant and appellant, John Charles Fletcher, was found guilty following
a jury trial on thirty-nine counts of violating various federal drug laws. He
received multiple concurrent sentences, one of which was for life imprisonment.
Fletcher appeals his conviction and sentence. We affirm. 1
BACKGROUND
In August of 2006, Agent Clayton Simmonds of the Federal Bureau of
Investigation (“FBI”) received a tip that there was considerable drug activity in
the Garden Days and Garden Oaks neighborhoods of Oklahoma City. Using both
traditional investigative techniques and a Title III wiretap, FBI agents discovered
there were many people, including Fletcher, selling narcotics in those
neighborhoods. The agents determined that Fletcher was a wholesale distributor
and had distributed cocaine since 2003.
Agents identified six other individuals significantly involved in these drug
activities: Kevin Wright, Kimberly Brannon, Jerroll Marshall, Kenneth Miles,
LaTonya Ellison and Lenora Wright (no relation to Kevin). After filing an initial
indictment against Fletcher and others, the government eventually filed a
superseding indictment against Fletcher alleging thirty-nine crimes: count 1
(conspiracy to possess with intent to distribute cocaine base, in violation of 21
1
We construe Appellee’s Motion to Withdraw as Counsel of Record as a
motion for substitution, and we hereby grant the motion.
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U.S.C. § 846); counts 2, 3, 12, 34, 37, 38 and 39 (distribution of cocaine base, in
violation of 21 U.S.C. § 841(a)(1)); counts 4,15, 20, 23 and 26 (possession with
intent to manufacture cocaine powder, in violation of 21 U.S.C. § 841(a)(1));
counts 5, 10, 16, 21, 24, 27, 31, and 35 (manufacturing cocaine base, in violation
of 21 U.S.C. § 841(a)(1)); counts 6, 17, 22, 25, 28, 32 and 36 (possession with
intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1)); counts 7
and 19 (felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1));
counts 8, 11 and 13 (distribution of cocaine base, in violation of 21 U.S.C.
§ 841(a)(1)); count 9 (possession with intent to manufacture cocaine powder, in
violation of 21 U.S.C. § 841(a)(1)); count 14 (managing a residence for the
purpose of manufacturing/distributing cocaine base, in violation of 21 U.S.C.
§ 856(a)(2)); counts 18, 29 and 33 (distribution of cocaine base, in violation of 21
U.S.C. § 841(a)(1)); and count 30 (possession with intent to distribute cocaine
powder, in violation of 21 U.S.C. § 841(a)(1)). 2
The broad contours of the charged drug conspiracy and related activities
were determined as follows: A confidential witness (“CW”) initially informed the
FBI that Fletcher and Kevin Wright had been selling large quantities of narcotics
in the Garden Days/Garden Oaks subdivision. Both Fletcher and Wright were
members of the Shotgun Crips gang. The CW provided agents with the telephone
2
The other conspirators were also prosecuted. A co-conspirator, Tuesday
Shalon Johnson, was a co-defendant with Fletcher. She, however, pled guilty at
some point.
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number Wright used to conduct narcotics transactions. On August 10, 2006, the
CW made a controlled purchase of crack cocaine from Wright.
Several other CWs provided similar information on Fletcher and Wright.
Some of these CWs made controlled purchases of cocaine, crack cocaine and PCP
from Fletcher and Wright. Several of these purchases were made at an address in
Oklahoma City listed as belonging to Fletcher, and which he rented to Lenora
Wright, a co-conspirator who was ultimately convicted and sentenced to sixty
months’ imprisonment.
In July of 2008, a court authorized a Title III wiretap on Wright’s cellular
phone. Agents heard conversations among the co-conspirators from that date
until the wiretap was discontinued on September 4, 2008.
During the course of the investigation described above, law enforcement
agents interviewed Wright on several occasions and learned that Wright had been
purchasing narcotics from other members of the conspiracy since 1993. Wright
purchased narcotics from Fletcher and others, including Tuesday Johnson,
Michael Thompson, Keno Fletcher and Karl Madison. These purchases included
cocaine, crack cocaine and PCP. Wright then took the narcotics purchased and
sold them to other distributors and/or users in the Oklahoma City area. Various
members of the conspiracy, including Fletcher, relied upon each other to keep
their drug supplies sufficient for their customers. They, including Fletcher, often
“cooked up” or “rocked up” powder cocaine to create crack cocaine. Law
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enforcement authorities determined that the conspiracy continued from at least
January 1993 through September 3, 2008. Between those dates, agents seized
approximately 755.1 grams of cocaine, 847.75 grams of crack cocaine and 77
milliliters of PCP.
As indicated above, Fletcher was found guilty by a jury of all thirty-nine
counts of the superseding indictment. In preparation for sentencing under the
advisory United States Guidelines Commission, Guidelines Manual (“USSG”), the
presentence report (“PSR”) calculated a total offense level of 38. After upward
adjustments for obstruction of justice, being an organizer or leader of the
conspiracy and possessing a firearm, Fletcher’s total offense level was 46. With a
criminal history category of VI, the advisory Guidelines sentence was life
imprisonment.
Fletcher objected to the drug quantity calculation and to the upward
adjustments for being an organizer or leader and obstructing justice. The
probation officer rejected these challenges. The district court overruled
Fletcher’s objections to the upward adjustments, and concluded that his other
objections were either moot or would have no effect on the advisory sentencing
Guidelines range. The district court sentenced Fletcher to life imprisonment.
Fletcher appeals, arguing (1) his rights under the Speedy Trial Act were
violated; (2) the evidence was insufficient to support his conviction; (3) FBI
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Agent Simmonds gave improper “overview” testimony; and (4) Fletcher’s
sentence was improperly calculated because he was not a leader/organizer.
DISCUSSION
I. Speedy Trial Act
On June 30, 2009, Fletcher filed a motion to dismiss the case against him
on the ground that his right to a speedy trial had been violated. The district court
denied that motion.
The Speedy Trial Act, 18 U.S.C. §§ 3161-3174, requires that a defendant be
tried “within seventy days from the filing date (and making public) of the . . .
indictment, or from the date the defendant has appeared before a judicial officer
of the court in which such charge is pending, whichever date last occurs.” 18
U.S.C. § 3161(c)(1). But the Act also contains “a long and detailed list of periods
of delay that are excluded in computing the time within which the trial must
start.” Zedner v. United States, 547 U.S. 489, 497 (2006). Thus, any period of
delay resulting from other proceedings involving the defendant, including delay
resulting from a pretrial motion, is excludable from the seventy-day period of the
Speedy Trial Act. See 18 U.S.C. § 3161(h)(1)(D); United States v. Tinklenberg,
131 S. Ct. 2007, 2010-16 (2011) (holding subsection (h)(1)(D) stops the Speedy
Trial Act clock upon filing of a pretrial motion, regardless of whether the motion
has any impact on the trial setting). Additionally, a “reasonable period of delay”
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attributable to the proceedings of a co-defendant is excludable. See 18 U.S.C.
§ 3161(h)(6).
“Much of the Act’s flexibility is furnished by § 3161(h)[(7)], which
governs ends-of-justice continuance.” Zedner, 547 U.S. at 498; see United States
v. Toombs, 574 F.3d 1262, 1276 (10th Cir. 2009) (Tymkovich, J, dissenting in
part; concurring in part). 3 This provision excludes “[a]ny period of delay
resulting from a continuance granted by any judge . . . on the basis of . . . findings
that the ends of justice served by taking such action outweigh the best interest of
the public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(7). It “gives
the district court discretion – within limits . . . – to accommodate limited delays
for case-specific needs.” Zedner, 547 U.S. at 499.
We and other courts have repeatedly emphasized, however, that in granting
an ends-of-justice continuance, the district court must set forth, “in the record,
either orally or in writing, its reasons for findings that the ends of justice served
by the granting of such [a] continuance outweigh the best interests of the public
and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(7)(A). “Without on-the-
record findings there can be no exclusion under § 3161(h)([7]).” Zedner, 547
U.S. at 507; see United States v. Rushin, 642 F.3d 1299, 1303 (10th Cir. 2011),
cert. denied, 132 S. Ct. 1818 (2012). Finally, the statute is “not self-executing.”
3
Before the 2008 amendments to the Speedy Trial Act, subsection (h)(7)
appeared as subsection (h)(8). See Pub. L. No. 110-406, § 13, 122 Stat. 4291
(2008). After the amendment, the subsection remained substantively unchanged.
-7-
United States v. Zajac, 2012 WL 1959464, at *7 (10th Cir. June 1, 2012)
(unpublished). 4 “[T]he defendant bears the burden of asserting a violation of the
statute.” Id. And “[t]he court will not consider such issues averted to in a
perfunctory manner, unaccompanied by some effort at developed argumentation.”
United States v. Wooten, 377 F.3d 1134, 1145 (10th Cir. 2004).
“We apply an abuse of discretion standard to a district court’s decision to
grant an ends-of-justice continuance. . . .” Toombs, 574 F.3d at 1268 (further
quotation omitted). We review de novo, however, the district court’s compliance
with the legal requirements of the Speedy Trial Act. Id. “The district court’s
factual findings are reviewed for clear error.” Id.
Both parties agree that the district court correctly held that the seventy-day
Speedy Trial period commenced on March 17, 2009, the day Fletcher made his
initial appearance before a magistrate. Seventy days after that date is May 26,
2009. Fletcher’s jury trial actually commenced on April 18, 2011. Thus, absent
excludable periods, Fletcher’s Speedy Trial Act rights were violated because his
trial commenced some 761 days after his initial appearance.
The government argues that all but forty-two days are automatically
excludable from the Speedy Trial Act provisions. The record reveals numerous
motions which tolled the Speedy Trial Act clock. On March 19, 2009, Fletcher’s
4
We note that unpublished decisions are not binding authority, but we cite
this case because we adopt its reasoning as stated.
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co-defendant, Tuesday Johnson, filed a motion to suppress the information
gathered from the wiretap, a motion for a hearing under United States v. James,
590 F.2d 575, 582 (5th Cir. 1979), 5 and a motion to sever. The district court set
the James hearing for May 11, 2009. Ms. Johnson pled guilty on May 6, 2009,
before the James hearing took place, and the district court therefore never ruled
on her pending motion to sever. While the district court did not exclude all of
that time period while those motions were pending (forty-nine days, if we assume
the Speedy Trial clock commenced again on May 7, after Ms. Johnson pled
guilty), we agree with the government that the entire period while Ms. Johnson’s
motions were pending and she was a co-defendant is excludable. See United
States v. Gutierrez, 48 F.3d 1134, 1136 (10th Cir. 1995).
Next, on May 8, 2009, Fletcher filed a motion to continue the trial, which
the district court granted on May 11, 2009. On May 13, 2009, he filed a pro se
motion to dismiss, which the district court struck on May 21, 2009, because
Fletcher was represented by counsel. The time period while those motions were
pending (four days and nine days, respectively) is excludable. 18 U.S.C.
§ 3161(h)(1)(D). On May 14, 2009, Fletcher filed a motion to suppress
information gathered from the wiretap and a motion for a James hearing. The
5
As we have noted previously, “[u]nder Tenth Circuit Law, a district court
can only admit co-conspirator statements if it holds a James hearing or conditions
admission on forthcoming proof of a predicate conspiracy through trial testimony
or other evidence.” United States v. Townley, 472 F.3d 1267, 1273 (10th Cir.
2007) (internal quotation marks and citation omitted).
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James hearing took place on June 3, and the court granted-in-part and denied-in-
part the motion to suppress on June 9. This twenty-seven-day period is also
automatically excludable. On June 8, 2009, Fletcher filed another pro se motion
to dismiss, which the district court struck on June 15 because he was represented
by counsel. This eight-day period is excludable. Fletcher’s motions to dismiss
for violating the Speedy Trial Act and to quash the indictment were pending from
June 30, 2009, until July 23, 2009, an excludable twenty-four day period.
Finally, on July 30, 2009, Fletcher filed another motion for a James
hearing. The district court granted the motion on August 13, 2009, and ultimately
set the hearing for September 28, 2009. As a result of numerous intervening
events, including a psychiatric evaluation, three pro se interlocutory appeals, and
a motion filed by Fletcher for a bill of particulars, the court did not hold the
James hearing until March 29, 2011, some 608 days after the motion was filed.
This period is excludable. The government grosses up the time periods as
follows: “The [Speedy Trial Act] does not automatically exclude the 42-day
balance covering March 18, 2009, May 7, 2009, May 12, 2009, June 16-29, 2009
July 24-29, 2009, and March 30, 2011 – April 17, 2011.” Appellee’s Br. at 24.
The record supports the government’s calculations. While a number of motions
and proceedings overlap, and involve a co-defendant whose record is not before
us, we calculate that the Speedy Trial Act clock was only running for twenty-
eight of the seventy days following Fletcher’s appearance.
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Additionally, the court granted several continuances under the ends-of-
justice provision of the Speedy Trial Act, 18 U.S.C. § 3161(h)(7)(A). First, on
May 8, 2009, Fletcher filed a motion to continue the trial, which the district court
granted on May 11, 2009, resetting Fletcher’s trial date to June 8, 2009. The
period (May 8-11) while that motion was pending is excludable. On May 27,
Fletcher filed a pro se motion to appoint new counsel. On May 28, 2009, the
government filed a motion for a continuance, which the district court granted on
May 29, 2009, and continued the James hearing until June 3, 2009. At the
hearing on June 3, the district court granted Fletcher’s motion for new counsel
and continued the trial to the July 2009 trial docket. This again tolled the Speedy
Trial Act clock. On June 30, 2009 (and again on July 1, 2009) Fletcher filed
motions to continue the trial, which the district court granted on July 2, resetting
the trial for the court’s August 2009 trial docket. 6
Considering the properly excluded motions by Fletcher himself, his counsel
and his co-defendant, as well as the district court’s ends-of-justice continuances,
the district court correctly held that Fletcher’s speedy trial rights were not
6
Other motions included a request by defense counsel, on September 21,
2009, for a psychiatric examination to see if Fletcher was competent to assist in
his own defense. On September 28, 2009, the district court granted that motion.
After conducting a hearing and receiving expert medical evidence, the court, on
January 27, 2010, found Fletcher to be competent. Time taken to determine a
defendant’s competency to stand trial is automatically excluded from the seventy-
day Speedy Trial Act requirement. 18 U.S.C. § 3161(h)(1)(A).
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violated. 7
7
We note that Fletcher also argues that the district court failed to make
adequate findings as to why the continuances granted were necessary under the
ends-of-justice provision. “Th[e] [ends-of-justice] exception to the otherwise
precise requirements of the Act was meant to be a rarely used tool for those cases
demanding more flexible treatment.” Toombs, 574 F.3d at 1269 (further
quotation omitted). The district court must make adequate findings as to the
necessity of such a continuance.
The requirement that the district court make clear on the record its
reasons for granting an ends-of-justice continuance serves two core
purposes. It both ensures the district court considers the relevant
factors and provides this court with an adequate record to review.
Failure to address [the reasons] on the record creates the unnecessary
risk of granting continuances for the wrong purposes, and encourages
overuse of this narrow exception. Thus, the record must clearly
establish the district court considered the proper factors at the time
such a continuance was granted.
Id. (further quotations omitted). Thus, the record “must contain an explanation of
why the mere occurrence of the event identified by the party as necessitating the
continuance results in the need for additional time.” Id. at 1271. “A record
consisting of only short, conclusory statements lacking in detail is insufficient.”
Id. As we stated in a prior case finding the district court’s explanation for a
continuance inadequate:
Although the district court . . . mentioned the presence of new
counsel in its . . . order, it did not issue findings specifically
addressing [defendant’s] stated grounds for a continuance, i.e., his
new counsel’s claimed need for time to familiarize himself with the
case. Nor did the district court otherwise comment on the issue of
trial preparation time. Furthermore, the court’s order does not so
much as hint that it weighed the proper factors under the Act.
Indeed, the court failed to cite the Act’s ends-of-justice provision.
United States v. Williams, 511 F.3d 1044, 1058 (10th Cir. 2007).
The district court’s orders granting continuances in this case are perilously
close to the inadequate orders in Williams. Not only does the court fail to cite the
(continued...)
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II. Sufficiency of the Evidence
Fletcher next argues there was insufficient evidence supporting his
conviction on the conspiracy charge. He also argues ineffectiveness of his trial
counsel, an argument which he candidly admits normally may not be brought on
direct appeal.
“We review the sufficiency of the evidence to support a jury verdict de
novo and examine only whether taking the evidence, both direct and
circumstantial, in the light most favorable to the government, a reasonable jury
could find the defendant guilty beyond a reasonable doubt.” United States v.
Phillips, 583 F.3d 1261, 1264 (10th Cir. 2009) (internal quotation marks omitted).
“We reverse a conviction only if no reasonable jury could have reached the
challenged verdict.” United States v. Hooks, 551 F.3d 1205, 1212 (10th Cir.
7
(...continued)
ends-of-justice provision, it fails to give any explanation as to why counsel needs
more time to familiarize himself with the case, nor how long the continuance
should be, nor does it “hint” at the required factors under the Act.
Nonetheless, the continuances sought by Fletcher, and granted by the
district court, were expressly granted to enable new counsel to familiarize
themselves with this case. With a thirty-nine count indictment, and at least one
co-defendant for a time, the record in this case is self-explanatory as to why the
district court believed a continuance was warranted when Fletcher sought new
counsel.
We need not resolve whether the continuances were adequately explained
in this case, however, because Fletcher filed other motions, as did his co-
defendant, in the same general time-frame as these granted continuances. The
Speedy Trial Act was not violated, even if we do not exclude the periods of time
covered by the continuances.
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2009). “In reviewing the evidence in this light, we do not inquire into the jury’s
credibility determinations or its conclusions regarding the weight of the
evidence.” United States v. Kaufman, 546 F.3d 1242, 1263 (10th Cir. 2008).
“To obtain a conspiracy conviction, the government must prove (1) an
agreement by two or more persons to violate the law; (2) knowledge of the
objectives of the conspiracy; (3) knowing and voluntary involvement in the
conspiracy; and (4) interdependence among coconspirators.” United States v.
Foy, 641 F.3d 455, 465 (10th Cir.), cert. denied, 132 S. Ct. 467 (2011). An
agreement to distribute drugs may be inferred from the facts and circumstances of
the case. Id. To establish the existence of a conspiracy, “mere presence” or
“mere association with conspirators known to be involved in crime” is
insufficient. Id. Similarly, “the government must do more than show there were
casual transactions between the defendant and the conspirators.” Id. (quoting
United States v. Caldwell, 589 F.3d 1323, 1331 (10th Cir. 2009) (further
quotations omitted)).
Fletcher specifically argues that the government failed to show
interdependence among other conspirators and himself. He also argues that the
government’s case largely rested on testimony which was “unworthy of belief on
its face” because it came from people who were “drug addicts/dealers, were under
prosecution and threat of imprisonment when they testified, sought leniency for
themselves in exchange for testifying against Fletcher, almost all were convicted
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felons, and none of the fantastic testimony they gave could be corroborated by
physical evidence or admissions by Fletcher.” Appellant’s Br. at 35.
A. Interdependence
Interdependence “requires proof that the conspirators intended to act
together for their shared mutual benefit within the scope of the conspiracy
charged.” United States v. Hamilton, 587 F.3d 1199, 1208 (10th Cir. 2009)
(emphasis and quotations omitted). “The requirement is satisfied if the alleged
coconspirators were united in a common unlawful goal or purpose and if a
defendant’s activities facilitated the endeavors of another alleged coconspirator or
facilitated the venture as a whole.” Id. (emphasis and quotations omitted); see
also United States v. Edwards, 69 F.3d 419, 431 (10th Cir. 1995)
(“[I]nterdependence exists where each co-conspirator[’s] activities constituted
essential and integral steps toward the realization of a common, illicit goal.”).
The interdependence element does not, however, require proof “the
coconspirators know the identities or details of each scheme or have connections
with all other members of the conspiracy.” Foy, 641 F.3d at 465 (quotations
omitted). “[The] buyer-seller relationship is patently an interdependent one.”
United States v. Wright, 506 F.3d 1293, 1298-99 (10th Cir. 2007).
Fletcher claims the government failed to prove interdependence because he
and Wright (the most significant person charged as a co-conspirator) were
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independent, each conducting his own business without agreements or reliance on
each other.
The evidence in this case was sufficient to demonstrate interdependence.
For example, Brannon testified that she bought cocaine from Fletcher, and
Fletcher knew she planned to sell it as well. Trial Transcript at 149, R. Vol. 1 at
149. Wright similarly testified that he bought cocaine from Fletcher, and Fletcher
knew he planned to resell it. Id. at 412-14. Brannon testified that Fletcher called
her to set up a drug buy because she was a “good source of income.” Id. at 171.
She and Wright both testified that Fletcher became virtually their exclusive
provider of drugs. Id. at 153, 370. Brannon also related an incident when she
provided Fletcher with nine ounces of crack cocaine because he was unable to
purchase it from anyone else. Id. at 157-58.
Further evidence of interdependence came from the testimony as to
Fletcher’s interactions with LaTonya Ellison, Kenneth Miles and Lanora Wright.
Several individuals testified that Fletcher did not himself use cocaine. Id. at 412,
552, 633-34. He accordingly relied upon Ellison, Miles and Ms. Wright (all
admitted crack addicts) to test the quality of the crack cocaine that Fletcher
cooked from powder. Id. Those three also obtained ingredients necessary to cook
crack cocaine when Fletcher needed a particular item, and occasionally supplied
him with customers. Id. at 387, 397, 565, 575, 624, 632, 681-82. Ms. Wright
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also related that she would warn Fletcher if the police were nearby, because she
“didn’t want him to get caught” and end her supply of crack. Id. at 693-94.
There was other evidence of interdependence: Fletcher cooked crack at the
residences of Miles and Ellison and Ms. Wright. Id. at 392, 487-88, 567, 625. In
return, they obtained crack from Fletcher. Jerroll Marshall testified that he taught
Fletcher how to cook crack cocaine from powder, which enabled Fletcher to then
cook his own crack cocaine utilizing a method which maximized the volume of
the finished product. Id. at 272-73. We agree with the government that, between
the evidence of individuals reselling the crack manufactured by Fletcher and those
assisting Fletcher in the manufacture of crack, there was sufficient evidence from
which the jury could find interdependence beyond a reasonable doubt.
B. Credibility of Witnesses
Fletcher also argues that virtually all the witnesses who testified against
him were unworthy of belief because they were drug addicts or dealers, were
themselves being prosecuted, and therefore had a motivation to testify favorably
toward the government, and were otherwise not credible. We have previously
stated that “our function as a court of review prevents us from re-weighing the
testimony and coming to a conclusion at odds with the one reached by the jurors.”
United States v. Mendez-Zamora, 296 F.3d 1013, 1018 (10th Cir. 2002) (further
quotation omitted). Thus, “[w]e will not hold that testimony is, as a matter of
law, incredible unless it is ‘unbelievable on its face, i.e., testimony as to facts that
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[the witness] physically could not have possibly been observed or events that
could not have occurred under the laws of nature.’” Id. (quoting Tapia v. Tansy,
926 F.2d 1554, 1562 (10th Cir. 1991)). Similarly, we have declared that a “fact-
finders’s credibility determinations are ‘virtually unreviewable on appeal.’”
United States v. Cardinas Garcia, 596 F.3d 788, 795 (10th Cir. 2010) (quoting
United States v. Virgen-Chavarin, 350 F.3d 1122, 1134 (10th Cir. 2003)). We
therefore decline to declare the witnesses in this case not credible.
Additionally, defense counsel thoroughly explored the criminal history and
charges pending against each witness. The jury was accordingly aware of their
status when they testified. This argument provides no basis for attacking the
jury’s verdict in this case.
With respect to Fletcher’s ineffective assistance of counsel claim, we have
stated that “[i]neffective assistance of counsel claims should be brought in
collateral proceedings, not on direct appeal. Such claims brought on direct appeal
are presumptively dismissible, and virtually all will be dismissed.” United States
v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc). “[E]ven if the
record appears to need no further development, the claim should still be presented
first to the district court in collateral proceedings . . . so the reviewing court can
have the benefit of the district court’s views.” Id. We see no reason to depart
from that general rule in this case.
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III. Testimony by FBI Agent
FBI Agent Clay Simmonds was the first witness to testify for the
government, and he provided an “overview” of the entire conspiracy, including
testifying as to the participants, their roles and various drug activities. Fletcher
characterizes this testimony as follows: “Agent Simmonds’ testimony is lengthy,
and it covers all of the Government’s witnesses, and many characters and drug
dealers/users not used as witnesses in this case, and he actually tells the jury how
the ‘operation’ worked, as the Government saw it, including the hierarchy of the
group of conspirators, with Fletcher, Wright, and Mike Thompson being at the
top.” Appellant’s Br. at 40. He also claims that Agent Simmonds relied upon
hearsay and other impermissible information. Finally, relying on two cases from
the First Circuit Court of Appeals, Fletcher argues Simmonds’ testimony
constitutes reversible error. See United States v. Vazquez-Rivera, 665 F.3d 351(1st Cir. 2011); United States v. Meises, 645 F.3d 5 (1st Cir. 2011).
“We review a district court’s decision to admit expert or lay testimony for
an abuse of discretion.” United States v. McSwain, 197 F.3d 472, 482 (10th Cir.
1999). Further, “[t]he court’s ruling cannot be overturned unless it is manifestly
erroneous.” Id. (further quotations omitted).
Relying heavily on Meises, Fletcher argues that we should follow the First
Circuit’s authority condemning “testimony from an agent, not based on personal
knowledge, describing the roles played in the drug conspiracy by individual
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defendants.” Meises, 645 F.3d at 13. The Meises court found that “[s]uch
descriptions amount to impermissible testimony from the agent ‘that each of the
defendants was guilty of the conspiracy charged.’” Id. (quoting United States v.
Casas, 356 F.3d 104, 119 (1st Cir. 2004)).
Fletcher lists five specific instances when he claims Agent Simmonds gave
improper testimony during direct examination. First, Fletcher argues that
Simmonds provided hearsay testimony and/or testimony as to something of which
he had no personal knowledge when he testified that one of Fletcher’s cocaine
suppliers was Richard Liggins. Trial Transcript at 17, R. Vol. 3 at 17. After
Fletcher objected to this as hearsay, the court reminded the government not to
elicit hearsay testimony, but noted that it would permit some overview testimony
by Simmonds provided it “was within his personal knowledge.” Id. at 20.
Second, Simmonds testified that Wright had a number of “retail”
customers, and he listed them by name. Id. at 21-22. Third, Simmonds testified
that a cell phone purportedly belonged to Fletcher, but it was not registered to
him, which Simmonds said is “common . . . in the narcotics industry.” Id. at 40.
Fourth, Simmonds testified as to who spoke in the wiretapped calls to Wright’s
phone, and further testified that Wright helped agents understand what was being
said on that phone. Id. at 45-50. Defense counsel made several hearsay
objections to this testimony, which the district court overruled. Finally,
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Simmonds testified as to his receipt of information about the presence of firearms.
Id. at 53-57. 8
We agree with the government that this is not prohibited “overview”
testimony which usurped, or unduly impacted, the jury’s role in determining the
facts. Simmonds stated his testimony was based on information he obtained from
the wiretap, interviews he conducted, surveillance, and the controlled buy in
which he participated. He did not use inadmissible or improper sources.
Moreover, we have stated, unlike the court in Meises, that “testimony as to the
roles played by participants in a[n] . . . operation [is permissible], [and] ‘other
courts have permitted law enforcement witnesses to provide both lay and expert
opinions concerning the roles played by participants in a variety of illegal
activities. . . .’” McSwain, 197 F.3d at 482 (quoting United States v. Pinelli, 890
F.2d 1461, 1474 (10th Cir. 1989)). With respect to Simmonds’ testimony about
an unregistered cell phone being commonly used in drug crimes, we have
consistently permitted law enforcement agents to provide expert testimony
concerning the drug trade. See, e.g., United States v. Sturmoski, 971 F.2d 452,
8
Fletcher cites this portion of Simmonds’ testimony as showing Simmonds
improperly testifying that he had received information that Fletcher himself
carried weapons. In fact, this part of Simmonds’ testimony only relates that
Simmonds gained “information with regard to firearms.” Trial Transcript at 54,
R. Vol. 3 at 54. There is no specific mention of Fletcher. At other places in the
trial, various witnesses testified as to their observations of Fletcher with different
weapons.
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459 (10th Cir. 1992) (testimony concerning tools of the drug trade). The district
court did not abuse its discretion in permitting Agent Simmonds’ testimony. 9
IV. Sentence
Fletcher’s final argument is that his sentence is unreasonable because the
district court found that, under the Guidelines, he was a leader/organizer of a
criminal activity involving five or more participants. We review a criminal
sentence for reasonableness, applying a deferential abuse of discretion standard.
United States v. Alapizco-Valenzuela, 546 F.3d 11208, 1214 (10th Cir. 2008).
This reasonableness has both a procedural and substantive component. Id. On
appeal, although he does not articulate it in this way, Fletcher challenges the
procedural reasonableness of his sentence, contending that the district court
improperly calculated his Guidelines sentence because it incorrectly assessed the
leader/organizer enhancement.
“We review for clear error the district court’s finding that [the defendant]
acted as a leader or organizer for purposes of [USSG] § 3B1.1.” United States v.
James, 592 F.3d 1109, 1113 (10th Cir. 2010) (further quotation omitted).
9
We note that neither party makes an argument about any jury instruction
relating to Simmonds’ testimony. Fletcher does not argue that the court should
have given a limiting instruction, nor does the government claim Fletcher failed
to ask for such an instruction. The jury instructions given are not part of the
record on appeal, although the government avers in its brief that the court gave
“not only a general credibility instruction but also instructions regarding law
enforcement witnesses.” Appellee’s Br. at 32. Fletcher does not refute that.
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Accordingly, “we will not reverse the district court’s finding unless, on the entire
evidence, we are left with the definite and firm conviction that a mistake has been
committed.” Id. (further quotation omitted).
For the leader/organizer enhancement to apply, the government must prove
by a preponderance of the evidence that the criminal activity involved five or
more people and that the defendant was an organizer or leader over at least one of
those individuals. United States v. Roberts, 14 F.3d 502, 523 (10th Cir. 1993).
In determining if that standard is met, the Guidelines direct us to consider:
the exercise of decision making authority, the nature of participation
in the commission of the offense, the recruitment of accomplices, the
claimed right to a larger share of the fruits of the crime, the degree of
participation in planning or organizing the offense, the nature and
scope of the illegal activity, and the degree of control and authority
exercised over others. There can, of course, be more than one person
who qualifies as a leader or organizer of a criminal association or
conspiracy.
USSG § 3B1.1(a) cmt. n.4. “Further, a defendant need not lead or organize at
least five individuals. Rather, the criminal activity must include five or more
participants (or be otherwise extensive). A defendant may be eligible for the
leader or organizer enhancement if he leads or organizes even one other
participant.” United States v. Damato, 672 F.3d 832, 847 (10th Cir. 2012) (citing
USSG § 3B1.1). “This is not a particularly onerous showing.” Hamilton, 587
F.3d at 1222.
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Fletcher does not challenge the finding that the conspiracy involved five or
more people. The only issue is the finding that he was an organizer or leader of
the conspiracy. In finding the § 3B1.1 enhancement applicable, the district court
stated as follows:
First of all, let me just recite regarding the first factor,
exercising decision-making authority, the Court finds certainly that
this Defendant had considerable authority over the conduct of
LaTonya Ellison, over Lenora Wright, and over Kenneth Miles, by
virtue of the relationship. They wanted what he had, the drugs,
because they were all addicts, and he had ingress and egress, rights
to their home, he could cook in their homes, he paid rent so he could
use the homes for purposes of cooking, and in exchange they directed
customers to him. He had considerable authority, and exercised it
over many, those in particular.
His participation, the Defendant’s participation in the actual
commission of the offense is extensive. He was quite controlling, he
recruited a number of accomplices, another factor which this Court
can consider. They, in exchange, directed customers to him, they
bought supplies for him. He . . ., “he’ being the Defendant, certainly
claimed right to a larger share of the fruits of the crime, which is
another factor this Court can look at to determine whether or not it is
appropriate for the Court to assess additional points under the
guideline for the leader-organizer role. The Court finds that it is
appropriate in this case.
Sentencing Tr. at 20-21, R. Vol. 3 at 775-76. The district court’s findings are
amply supported by the record and are not erroneous. We therefore affirm
Fletcher’s sentence, which includes the § 3B1.1 enhancement. 10
10
Fletcher claims the district court’s decision conflicts with our decision in
United States v. Torres, 53 F.3d 1129 (10th Cir. 1995). We disagree. Torres is
distinguishable. For one thing, the district court in Torres merely made a
conclusory statement finding the organizer/leader enhancement applicable, noting
(continued...)
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CONCLUSION
For the foregoing reasons, we AFFIRM the conviction and sentence in this
case.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
10
(...continued)
that the defendant was the “engine” of the operation. The district court in this
case clearly did more than make a conclusory statement about Fletcher’s
involvement. Moreover, we noted in Torres that “there was no evidence in the
record the other coconspirators worked for [the defendant].” Id. at 1143. That is
not the situation before us, where there was ample evidence of others working for
Fletcher.
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