United States v. Williams ( 1998 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 17 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-7041
(D.C. No. CV-96-24-S)
EDDIE LEE WILLIAMS, (E.D. Okla.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRORBY, BARRETT, and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. 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This order and judgment is not binding precedent, except under the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. 36.3.
Defendant-Appellant Eddie Lee Williams appeals from the district court’s
order denying his motion to vacate, correct or set aside his sentence pursuant to
28 U.S.C. § 2255. Appellant was convicted of use of a communication facility to
facilitate a drug felony, cocaine conspiracy and distribution, money laundering,
employing a person under eighteen years of age to distribute cocaine, and
engaging in a continuing criminal enterprise (CCE). On direct appeal, we vacated
the conspiracy conviction. See United States v. Williams, No. 91-7094, 1993 WL
125403, at **1 n.2, **2 (10th Cir. Apr. 19, 1993). Finding no error in the issues
he now presents, we affirm the district court’s order denying § 2255 relief. 1
Appellant’s challenges are based on ineffective assistance of trial and
appellate counsel. In order to establish ineffective assistance of counsel, a
movant must show both that his counsel’s performance was deficient, and that the
deficient performance prejudiced him. See Lasiter v. Thomas, 89 F.3d 699, 703
(10th Cir. 1996). To meet the “prejudice” element, he must show that “but for
this ineffective assistance the result would have been different.” Id.1
Appellant has requested that we issue him a certificate of appealability
(COA). Because appellant filed his habeas petition in January 1996, before the
April 24, 1996 enactment of the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), AEDPA’s COA requirements do not apply to this appeal. See
United States v. Kunzman, 125 F.3d 1363, 1364 n.2 (10th Cir. 1997), 118 S. Ct
1375 (1998). Appellant does not need a COA to proceed.
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1. Challenges relating to CCE conviction.
Appellant asserts two challenges relating to his CCE conviction pursuant to
21 U.S.C. § 848. First, he argues his trial counsel was ineffective for failing to
object to the lack of a jury unanimity instruction. Second, he argues that his
appellate counsel was ineffective for failing to argue the insufficiency of evidence
to support the conviction.
To convict a defendant on a CCE charge, the government must prove:
(1) a felony violation of a drug law contained in the Controlled
Substance Act, 21 U.S.C. §§ 801 et seq. (1988); (2) constituting part
of a continuing series of such violations; (3) undertaken in concert
with five or more other persons; (4) with respect to whom [the
defendant] occupies a position of organizer, supervisor, or any other
position of management; and (5) from which [the defendant] obtains
substantial income or resources.
United States v. Jenkins, 904 F.2d 549, 553 (10th Cir. 1990).
Appellant argues his trial counsel should have requested an instruction
requiring the jury to agree unanimously on the “five or more persons” whom he
supervised. Appellant concedes the CCE statute does not require such an
instruction. See, e.g., United States v. Rockelman, 49 F.3d 418, 421 (8th Cir.
1995) (citing cases from various circuits holding that jury unanimity instruction
not required). He argues, however that this case falls within the exception stated
in United States v. Jerome, 942 F.2d 1328, 1330-31 (9th Cir. 1991).
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Jerome holds that where the prosecution presents to the jury as possible
supervisees persons who, as a matter of law, could not have been organized or
supervised by the defendant, a unanimity instruction is required. See United
States v. LeMaux, 994 F.2d 684, 688 (9th Cir. 1993) (noting limitations of Jerome
holding). We have not adopted the Jerome exception in this circuit. See United
States v. O’Brien, 131 F.3d 1428, 1432 (10th Cir. 1997). So long as the district
court gave a general unanimity instruction, and there is not a realistic possibility
of jury confusion concerning the acts which support a defendant’s conviction,
we assume that the jury understood it must be unanimous on the specifications
underlying its verdict. See id.Appellant argues that the jury could have been confused by being presented
with two potential supervisees who he could not possibly have supervised:
Sandra Spencer and Victor Wren. He argues that Sandra Spencer could not have
been his supervisee because she was a government informant. Cf., e.g., United
States v. Desimone, 119 F.3d 217, 223 (2d Cir. 1997) (confidential informant
cannot be coconspirator for purposes of conspiracy charge). Assuming
appellant’s argument removes Ms. Spencer from consideration as a supervisee,
it does not thereby demonstrate an undue risk of jury confusion. The prosecution
did not argue in favor of Ms. Spencer’s being considered as a supervisee. See
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Supp. R. Vol. V at 4.1002-03, 4.1064. Appellant has failed to show sufficient
risk of jury confusion to warrant the issuance of a separate unanimity instruction.
Appellant also contends that the evidence shows, as a matter of law, that
Victor Wren could not have been one of his supervisees. We agree. See id.Vol. IV at 3.720-737. The prosecution did not argue, however, that Mr. Wren
was a supervisee. See id. Vol. V at 4.1064. There was little danger that the jury
would be confused into making the kind of categorical mistake about him which
would warrant a separate unanimity instruction. We conclude that appellant’s
trial counsel was not constitutionally ineffective for failing to request a unanimity
instruction.
Appellant next argues that his appellate counsel was ineffective for failing
to argue that the evidence did not support the existence of five or more persons
whom he organized or supervised. We review de novo the question of sufficiency
of evidence to support a conviction. See United States v. Carter, 130 F.3d 1432,
1439 (10th Cir. 1997), cert. denied, 118 S. Ct. 1856 (1998). We will overturn a
conviction for insufficient evidence only if the evidence, viewed in the light most
favorable to the government, including all reasonable inferences to be drawn
therefrom, is such that no reasonable juror could have reached the disputed
verdict. See id.-5-
Leaving aside Ms. Spencer and Mr. Wren, and also excluding from
consideration two other co-defendants whom the jury acquitted, we are still left
with five persons who the jury could have found were “organized, supervised or
managed” by appellant: Sam Myles, Bennie Roberts, Dwight Booker, Dexter
Pickens, and Johnnie Pickens. Having reviewed the trial transcript, we conclude
that the prosecution presented sufficient evidence from which the jury could have
determined that each of these persons was appellant’s supervisee. We therefore
affirm appellant’s CCE conviction.
2. Challenge relating to money laundering conviction.
Appellant next contends that his counsel on direct appeal was ineffective
for failing to mount an effective challenge to his money laundering conviction.
Appellant’s counsel did challenge this conviction, on the basis that there was no
proof of intent to conceal the source of the laundered funds. See Williams, 1993
WL 125403, at **2. We determined that argument was an effective challenge
only to a conviction of money laundering under 18 U.S.C. § 1956(a)(1)(B)(i),
because that subsection requires a showing of intent to conceal. No such showing
is required under § 1956(a)(1)(A)(i), however. See id. Since the subsections are
disjunctive, we presumed the sufficiency of evidence for a conviction under
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subsection (A)(i). See id. Appellant now asserts that his counsel should also
have challenged his conviction under subsection (A)(i). 2
Appellant contends the government failed to establish that his cash
purchases were made “with the intent to promote the carrying on of specified
unlawful activity.” See 18 U.S.C. § 1956(a)(1)(A)(i). Appellant was charged
with laundering funds through his purchase of a 1987 Nissan pickup, a 1989
Hyundai, a red Mercedes, and the security bars on his home. Contrary to
appellant’s representations, there is abundant evidence that he sold drugs from the
Nissan and the Hyundai, from which the jury could have inferred an intent to use
them for unlawful activity. Although there is no evidence that he sold drugs from
the Mercedes, appellant did receive drug proceeds from a runner while driving it
on at least one occasion. See Supp. R. Vol. IV at 3.744. Thus, there was
evidence from which the jury could have concluded that the automobiles were
purchased to carry on unlawful activity.
Appellant further contends that since the jury acquitted him of dealing
drugs from his home, it would have been inconsistent for them to find that the
bars were purchased to defend his drug operation. Factual inconsistencies in
2
Appellant attempts to re-argue the sufficiency of evidence to convict under
subsection (B)(i) of the statute. The argument is inappropriate: it is clear that his
counsel did urge reversal under subsection (B)(i) in the previous appeal. We do
not, therefore, consider his (B)(i) arguments.
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a jury’s verdict, without more, generally do not justify the reversal of a
defendant’s conviction. See United States v. Powell, 469 U.S. 57, 65-66 (1984).
The lenity appellant received on the count of distributing from his home should
not be taken as proof that there was insufficient evidence to convict him of
purchasing the bars to protect a drug operation. We conclude that appellant’s
counsel was not ineffective for failing to make the arguments he proposes about
the money laundering conviction.
3. Sentencing challenge relating to cocaine base enhancement.
Finally, appellant asserts his appellate counsel was ineffective in failing
to object to the drug type and quantity used to compute his offense level. The
district court calculated appellant’s base offense level at 38, finding that his
offense-related activities involved 494.6 grams of cocaine base (crack). The
494.6 gram figure was derived by totaling all cash deposits made by appellant and
his wife to their bank accounts, subtracting their legitimate income, then dividing
the remainder by an average cost per gram of cocaine base. See U.S.S.G.
§ 2D1.1, commentary application note 12 (Nov. 1990) (referring to application
note 2 of commentary pertaining to U.S.S.G. § 2D1.4 (No. 1990)) (permitting
court to approximate quantity of controlled substance based on financial records
where the amount seized does not reflect the scale of the offense). The average
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cost per gram figure was in turn derived from the price per gram appellant
received for specific sales attributed to him in the indictment.
Appellant argues that since there is evidence in the record that he sold
powder cocaine as well as cocaine base, his offense level should not have been
calculated solely on the basis of cocaine base sales. The district court found that
all the substances seized were cocaine base. A chemist testified at appellant’s
trial that all the cocaine she tested in connection with this case was cocaine base.
She explained that even though some of the cocaine base was in powdered form,
it was still cocaine base, because it did not contain the hydrochloride salt which
is present in “powder” cocaine. 3
Appellant argues, however, that the district court’s finding is inconsistent
with two of the counts of the indictment specifically charging him with selling
powder cocaine. Count 7 of the Indictment charged appellant with distributing
1.1 grams of powder cocaine. Count 11 of the Indictment charged him with
3
In 1993, the Sentencing Commission amended U.S.S.G. § 2D1.1(c) to
clarify that “cocaine base” means “crack.” “Crack” is defined as “a form of
cocaine base, usually prepared by processing cocaine hydrochloride and sodium
bicarbonate, and usually appearing in a lumpy, rocklike form.” Id. (emphasis
added). The cocaine base tested in this instance was not lumpy or rocklike; it was
in a powdered form. Assuming the guideline amendment required the court to
consider the powdery substance introduced at trial as something other than
“cocaine base,” appellant cannot rely on the amendment, because it does not apply
retroactively. See United States v. Kissick, 69 F.3d 1048, 1051-53 (10th Cir.
1995).
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distributing 490 milligrams of powder cocaine. In light of the wording of the
indictment, he argues, the jury must necessarily have found that the cocaine
involved in Counts 7 and 11 was powder cocaine rather than cocaine base.
Assuming appellant is correct, however, the amount in question in these
two counts is less than two grams. Attributing two grams of powder cocaine
rather than cocaine base to appellant would not have affected his offense level,
see U.S.S.G. §§ 2D1.1(c)(5) (equivalency table) (Nov. 1990), and therefore makes
no difference to his sentence, cf. Edwards v. United States, 118 S. Ct. 1475,
1477-78 (1998) (finding no reversible error where district court used cocaine base
to calculate sentence, even though defendant’s conduct could have involved
powder cocaine, where actual sentence was within statutory limits applicable to
a cocaine-only conspiracy).
Appellant attempts to bootstrap the jury’s implicit finding into a general
attack on the court’s findings about the type of cocaine he was selling. In view
of the chemist’s report that all of the substances introduced at trial, including
substances appellant sold as “powder,” were cocaine base, however, his challenge
fails. See United States v. Cantley, 130 F.3d 1371, 1379 (10th Cir. 1997)
(“[T]hough we recognize the burden is on the government to prove the substances
were crack cocaine, [defendant] has presented no evidence whatsoever to show
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that the substances were not crack cocaine.”), cert. denied, 118 S. Ct. 1098 (1998).
The judgment of the United States District Court for the Eastern District
of Oklahoma is AFFIRMED.
Entered for the Court
James E. Barrett
Senior Circuit Judge
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