United States v. Frierson , 698 F.3d 1267 ( 2012 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS October 29, 2012
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 11-3332
DARRYN FRIERSON, a/k/a DeDa,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 6:07-CR-10142-JTM-13)
Submitted on the briefs:*
John Jenab, Jenab & McCauley LLP, Olathe, Kansas, for Defendant-Appellant.
Barry R. Grissom, United States Attorney, James A. Brown, Assistant United States
Attorney, Topeka, Kansas, for Plaintiff-Appellee.
Before HARTZ, ANDERSON, and EBEL, Circuit Judges.
HARTZ, Circuit Judge.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Defendant Darryn Frierson and 19 codefendants were charged in a
multiple-count indictment with alleged criminal activities as members of the Crips
street gang. Following a lengthy jury trial of Defendant and five codefendants, he
was convicted of eight offenses: (1) conspiracy to participate in a Racketeering
Influenced and Corrupt Organization Act (RICO) enterprise, see 18 U.S.C. § 1962(d)
(Count 2); (2) distribution of more than five grams of cocaine, see 21 U.S.C.
§ 841(a)(1) (Count 7); (3) distribution of more than five grams of crack cocaine,
see 21 U.S.C. § 841(a) (Count 8); (4) possession with intent to distribute more than
five grams of crack cocaine, see 21 U.S.C. § 841(a) (Count 9); (5) maintaining a
place of drug distribution, see 21 U.S.C. § 856(a)(1) (Count 10); (6) conspiracy to
distribute and possess with intent to distribute crack cocaine, see 21 U.S.C. § 846(Count 11); (7) possession with intent to distribute more than five grams of crack
cocaine, see 21 U.S.C. § 841(a)(1) (Count 12); and (8) conspiracy to distribute more
than 50 grams of crack cocaine, see 21 U.S.C. § 846(a) (Count 28). The jury
deadlocked on Count 1, which charged Defendant with racketeering, see 18 U.S.C.
§ 1962(c), and acquitted him on Count 29, which charged him with conspiracy to
distribute marijuana, see 21 U.S.C. § 846.
The district court denied Defendant’s motion for judgment of acquittal or in
the alternative for a new trial, and it sentenced him to concurrent terms of
120 months’ imprisonment on each count. Defendant raises the following
contentions on appeal: (1) Counts 11 and 28 are multiplicitous; (2) there was
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insufficient evidence to support his conviction for conspiracy to commit a RICO
violation; (3) the district court erred by instructing the jury that it did not need to find
that an “enterprise” actually existed in order to convict him of a conspiracy to
commit a RICO violation; and (4) juror bias denied him the right to a fair trial. The
last three contentions are identical to ones rejected by this court on appeals by his
codefendants. See United States v. Cornelius, --- F.3d ---, Nos. 10-3125, 10-3142,
2012 WL 4075877, at *2-4, 7-8, 11-13 (10th Cir. Sept. 18, 2012) and United States v.
Smith, 454 F. App’x 686, 696-97 (10th Cir. 2012) We therefore address only his
claim of multiplicity. We hold that it is meritorious.
Defendant concedes that he did not raise the issue of multiplicity in the district
court. Thus, “we review only for plain error.” United States v. McCullough,
457 F.3d 1150, 1162 (10th Cir. 2006) (internal quotation marks omitted). “Under the
plain error standard, [a defendant] must show clear or obvious error that affected his
substantial rights and seriously affected the integrity of the judicial proceedings.”
United States v. Battle, 289 F.3d 661, 669 (10th Cir. 2002).
“Multiplicity refers to multiple counts of an indictment which cover the same
criminal behavior.” United States v. Barrett, 496 F.3d 1079, 1095 (10th Cir. 2007)
(internal quotation marks omitted). “[M]ultiplicity is not fatal to an indictment.” Id.(internal quotation marks omitted). Indeed, “[t]he government may submit
multiplicitous charges to the jury.” United States v. Nickl, 427 F.3d 1286, 1301
(10th Cir. 2005). But “multiplicitous sentences violate the Double Jeopardy Clause,”
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McCullough, 457 F.3d at 1162 (internal quotation marks omitted), so “if a defendant
is convicted of both charges, the district court must vacate one of the convictions,”
Nickl, 427 F.3d at 1301.
In this case Defendant was indicted on two counts charging a conspiracy to
distribute crack cocaine. Count 11 charged:
Beginning on a date unknown to the Grand Jury, and continuing through
March 30, 2007, in the District of Kansas, [Defendant] and Cortez
Grayson . . . did unlawfully, knowingly combine, conspire, confederate
and agree together with others, both known and unknown to the Grand
Jury, to distribute and possess with intent to distribute a mixture and
substance containing a detectable amount of cocaine base, a controlled
substance, in violation of Title 21, United States Code, Section
841(a)(1)[,] and [thus a] violation of Title 21, United States Code,
Section 846.
R. Vol. 1 at 72-73. Count 28 incorporated several earlier paragraphs of the
indictment and then charged:
Beginning on a date unknown to the Grand Jury, and continuing through
the 27th day of June, 2007, in the District of Kansas, and elsewhere,
[Defendant, Grayson, and 12 other Crips members] . . . did knowingly,
willfully and unlawfully combine, conspire, confederate and agree with
. . . other persons whose identities are both known and unknown to the
Grand Jury, to distribute fifty (50) grams and more of a mixture and
substance containing a detectable amount of cocaine base, a controlled
substance[,] [i]n violation of Title 21, United States Code, Section 846
and 841(a)(1).
Id. at 82. Defendant contends that “[t]he only substantive difference between the two
counts is that Count 28 specifies that the overall scope of the conspiracy was ’50
grams and more.’” Aplt. Opening Br. at 15.
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To establish that the two conspiracies charged in Counts 11 and 28 were
distinct – that is, that the conspiracy convictions were not multiplicitous – the jury
had to find the “existe[nce] [of] more than one agreement to perform some illegal act
or acts.” United States v. Fleming, 19 F.3d 1325, 1330 (10th Cir. 1994) (internal
quotation marks omitted). To do so, the “jurors [had to be] adequately instructed that
they could not find [Defendant] guilty of more than one count of conspiracy unless
they were convinced beyond a reasonable doubt that he entered into two separate
agreements to violate the law.” United States v. Swingler, 758 F.2d 477, 492
(10th Cir. 1985).
In this case the jury was not so instructed, and accordingly it did not find that
Defendant entered into two separate agreements to distribute crack cocaine. The
instruction to the jurors that they “separately consider each defendant and each
Count,” R. Vol. 1 at 243, did not alert them that they needed to find that the two
conspiracies involved distinct agreements. And there was nothing in the
government’s closing argument to suggest that the conspiracy alleged in Count 11
was anything other than part of the larger conspiracy alleged in Count 28, or that
Defendant had two separate agreements to distribute illegal drugs. Thus, the two
convictions on Counts 11 and 28 are plainly multiplicitous. The government
concedes in its brief that if the counts are multiplicitous, Defendant is entitled to
relief under plain-error review.
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We REMAND with instructions to the district court to vacate Defendant’s
conviction and sentence on either Count 11 or Count 28. We AFFIRM the
convictions and sentences on the remaining counts.
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