United States v. Dawn Ann Curry , 188 F. App'x 863 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-13186 JULY 5, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 02-00021-CR-FTM-29-DNF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAWN ANN CURRY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 5, 2006)
Before TJOFLAT, ANDERSON and FAY, Circuit Judges.
PER CURIAM:
Dawn Ann Curry is appealing her convictions and her total 70-month
sentence for conspiring to possess with intent to distribute a quantity of marijuana,
in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) and 846, and possession with
intent to distribute a quantity of marijuana, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(C). Curry argues on appeal that: (1) a material variance occurred between
her indictment and the proof at trial relating to her conspiracy charge; (2) the
district court erred in denying her motion for a judgment of acquittal on her
conspiracy charge; (3) the court erred in admitting evidence of prior shipments
addressed to Curry’s residence; and (4) the court, in calculating Curry’s offense
level, clearly erred in finding her accountable for an amount of marijuana based on
estimates relating to the prior shipments addressed to her residence. For the
reasons set forth more fully below, we affirm Curry’s convictions and sentences.
A federal grand jury returned a two-count superseding indictment, charging
Curry with the above referenced offenses, including that she conspired “with other
persons” to possess with intent to distribute an unidentified quantity of marijuana.
Prior to trial, Curry moved in limine to exclude the admission of, among other
things, evidence showing prior shipments of crates to her residence. Curry argued
in these motions that the evidence either was not relevant, pursuant to
2
Fed.R.Evid. 404(b),1 or its probative value was substantially outweighed by its
prejudicial effect, pursuant to Fed.R.Evid. 403.2 After conducting a hearing, the
district court ruled that the government could not admit this challenged evidence,
subject to the court’s reconsideration during trial. The court also denied the
government’s pre-trial motion for reconsideration. The government then filed an
interlocutory appeal of the court’s order granting Curry’s motions in limine.3
In United States v. Curry, No. 03-12364 (11th Cir. Feb. 27, 2004) (unpub.),
we affirmed in part and remanded in part, explaining that, although most of the
challenged evidence should be excluded, evidence of the prior shipments that were
1
Rule 404(b) provides in relevant part that:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident . . ..
See Fed.R.Evid. 404(b).
2
Rule 403 provides that, “[a]lthough relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless presentation
of cumulative evidence.” See Fed.R.Evid. 403.
3
We had jurisdiction to consider the government’s appeal under 18 U.S.C. § 3731,
which permits the government to take interlocutory appeals from orders “suppressing or
excluding evidence,” up until the time the jury is sworn. See 18 U.S.C. § 3731. Although the
court advised the parties that it was amenable to reconsidering its grant of Curry’s motions in
limine, the practical effect of the court’s ruling was to exclude the evidence at issue. See United
States v. Drogoul, 1 F.3d 1546, 1551 n.13 (11th Cir. 1993) (holding that “district court orders are
deemed to exclude evidence for the purposes of [§ 3731] whenever they have the practical effect
of excluding evidence at trial”).
3
addressed to Curry’s residence, which we noted was from a “fictitious company,”
should not be excluded because it was relevant to show that Curry was part of a
larger conspiracy. We further discussed that (1) we “[could not] imagine more
appropriate evidence to tie Curry into the larger conspiracy,” and (2) the probative
value of this evidence was not substantially outweighed by any prejudice.
During a three-day jury trial in which Curry was the sole defendant,
Dominic Dilenge, a truck driver for Old Dominion Freight Lines (“Old
Dominion”), testified that, he delivered crates from “Classic Collectibles” to the
Fort Myers, Florida area, through City Business Services (“CBS”), a packaging
and shipping company in Los Angeles. Dilenge stated that he became suspicious
of these crates because: (1) the crates were too well constructed to be carrying their
listed freight, that is, either statues or plumbing supplies; (2) the delivery locations
involved odd locations, including the parking lot of a baseball field and various
homes; and (3) he often had to call someone on a cellular telephone to arrange
deliveries. Although Dilenge initially could not recall whether he made shipments
to Curry’s residence, after the government refreshed his memory with documentary
evidence, he stated that he made deliveries of crates on May 30, and July 3, 2001.
Steven Launikitis, a lieutenant with the Hillsborough County Sheriff’s
Office in Tampa, Florida, testified that, on February 28, 2002, after being
4
contacted about these suspicious shipments, he and other detectives went to Old
Dominion’s distribution facility with a drug-detection canine. After the dog
alerted to a crate scheduled for delivery to Curry’s residence, which weighed 150
pounds, the detectives obtained a search warrant for the crate and recovered from
the bottom of it 115 pounds of marijuana, which was separated into four bales.
Law enforcement officers, thereafter, put a tracking device inside the crate and
conducted a controlled delivery of the crate to Curry’s residence.
John Felts, a former special agent with the Drug Enforcement Agency
(“DEA”), testified that, during this controlled delivery, he, while acting as an
undercover delivery person, asked Curry’s half-sister, Wilma Dixon, and Dixon’s
daughter, Christine Dixon, who were in the driveway area of the residence when he
arrived, where they wanted him to place the crate. On Wilma Dixon’s direction,
Special Agent Felts and the delivery driver put the crate in the garage, and Dixon
signed the bill of lading. Also during this delivery, Special Agent Felts heard
Dixon state over the telephone: “It just arrived. It’s in the corner of the garage.”4
Michael Masiero, an officer with the Fort Myers Police Department who was
assigned to the DEA task force, testified that, shortly after this controlled delivery,
he observed Curry arrive at her residence in a minivan owned by Marlon Campbell
4
The government introduced during trial telephone records reflecting that Dixon was
talking to Curry.
5
(“Mr. Campbell”), drive into the garage, and then drive out of the garage in the
minivan with the crate inside of it. Moreover, Mark Strang, another DEA special
agent, testified that, after law enforcement officers stopped this minivan, Curry told
an officer that (1) she had cleaning supplies in the minivan, (2) the crate was in the
minivan “when he gave it to her,” and (3) she did not know of the crate’s contents.5
Special Agent Strang also stated that, after DEA agents transported Curry back to
her residence and obtained a warrant to search it, they recovered paperwork
relating to the delivery, as well as wood fragments on the floor of the garage that
were consistent with the crate. Cary Oien, a trace-evidence examiner with the
Federal Bureau of Investigations (“FBI”), also testified that the type of wood that
was observed on Curry’s clothing matched the wood found in the garage and the
wood used to manufacture the crate.
Thomas Mosley, the manager of Old Dominion’s Tampa facility, testified
that, prior to February 22, 2002, Old Dominion had delivered similar crates from
Classic Collectibles to Curry’s address, including the following deliveries: (1) a
75-pound crate of “decorations or notations” to “Mitchell Roofing, Inc.” at Curry’s
address on May 30, 2001; (2) a 110-pound crate containing a “statue” to “Mitchell
5
On the other hand, Special Agent Strang testified that, while he was placing Curry into
the patrol vehicle, he noticed that she had fragments of wood on her clothing, especially on the
front of her pants.
6
Roofing, Inc.” at Curry’s address on July 3, 2001; (3) a 160-pound crate containing
another “statue” to “Mitchell Roofing, Inc.” at Curry’s address on July 31, 2001;
and (4) a 140-pound crate of “ornaments” to “Mitchell Roofing, Inc.” at Curry’s
address on December 4, 2001. The government also showed that Curry’s cellular
telephone number was listed as the consignee’s telephone number for the May and
December deliveries, and that the telephone number for Marilyn Campbell (“Mrs.
Campbell”), Marlon Campbell’s wife, was listed for the July deliveries.6
Additional trial evidence included testimony by Special Agent Duquette
that, during the hours after Curry’s arrest, Mrs. Campbell repeatedly attempted to
contact Curry on Curry’s cellular telephone. Special Agent Duquette also stated
that phone records revealed that Curry and Mrs. Campbell had been in contact with
each other throughout the day prior to the delivery of the crate.
Furthermore, Larry Thomas testified for the government that he began
dealing marijuana in Ohio in 1999, originally sending money through Western
Union to a person named “Will” in California in exchange for Will sending him
marijuana in cardboard boxes via the United Postal Service (“UPS”). Beginning in
January 2001, after UPS discovered these deliveries, Will started sending the
6
Special Agent Steven Duquette of the DEA testified that, when law enforcement agents
searched Curry’s residence, they did not discover evidence of business activity. Moreover, the
State of Florida had no record of any business registered in Southwest Florida that was doing
business as “Mitchell Roofing, Inc.” or “Jones Plumbing, Inc.”
7
marijuana through Old Dominion in hand-fashioned wooden crates secured with
screws and nails. In these crates, which were wooden, filled with styrofoam
peanuts, and nailed shut, the marijuana was separated into bundles and covered
with plastic, with something thrown on top to mask either the scent or the
appearance of the marijuana. Because Old Dominion only would make deliveries
to businesses, Thomas arranged for acquaintances to accept deliveries at their
business addresses, explaining that the crates contained statues. From March 2001
through March 2002, Thomas received from Will hundreds of pounds of
marijuana, with deliveries sent in 11 crates. On cross-examination, Thomas agreed
that the crates were not unusual.7 Thomas also conceded that he did not know
Curry and that his supplier had not mentioned her name or the fact that he made
shipments to Florida.
At the conclusion of the government’s case, Curry moved to strike all of the
evidence relating to the Ohio transactions, arguing that the government had failed
to establish a connection between those transactions and Curry’s charges. The
district court denied this motion, explaining that, although the connection was not
“overwhelming,” it was consistent with the government’s proffer, the evidence was
7
Peter Adeli, the owner of CBS, testified that CBS, which was a legitimate business,
was merely the shipper, and that “Classic Collectibles” was listed as the vendor for each of the
prior deliveries at issue in this case.
8
sufficient for admissibility, and admissibility was in accordance with this Court’s
decision on the government’s interlocutory appeal.
Additionally, Curry moved for judgments of acquittal at the close of the
government’s case and at the close of all of the evidence, arguing that the
government had failed to prove a connection between the February 2002 delivery
and the Ohio transactions, or between herself and the Campbells. The district court
also denied these motions, again explaining that, although the evidence of the
conspiracy was not “overwhelming,” a reasonable jury could find Curry guilty of
the offense.
During the charge conference, Curry moved the court to instruct the jury on
multiple conspiracies. After the government raised no objections to this
instruction, the court instructed the jury as follows:
[P]roof of several separate conspiracies is not proof of a single overall
conspiracy charged in the superseding indictment unless one of the
several conspiracies which is proved is the single conspiracy which
the superseding indictment charges. What you must do is determine
whether the single conspiracy charged in the superseding indictment
existed between two or more conspirators.
If you find that no such conspiracy existed, then you must acquit the
defendant on that charge. However, if you decide that such a
conspiracy did exist, you must then determine who the members were.
And, if you should find that a particular defendant was a member of
some other conspiracy, not the one charged in the superseding
indictment, then you must acquit the defendant. In other words, to
find a defendant guilty, you must find, unanimously, that such
9
defendant was a member of the conspiracy charged in the superseding
indictment, and not a member of some other, separate conspiracy.
The jury convicted Curry as charged in her superseding indictment.
Curry’s presentence investigation report (“PSI”) recommended that she be
held accountable for a total of 230.3 kilograms of marijuana, based on the 54.4
kilograms of marijuana that was shipped to her residence on February 28, 2002,
and an estimated 175.9 kilograms that was shipped to her residence during the four
prior shipments in 2001. With a resulting offense level of 26, pursuant to U.S.S.G.
§ 2D1.1(c)(7), and a recommended criminal history category of III, Curry had an
advisory guideline range of 78 to 97 months’ imprisonment.
Curry objected to this drug amount, arguing that the government had not
shown during her trial either that she possessed other crates of marijuana, or the
contents of these crates. Thus, Curry asserted that she only should be held
accountable for the marijuana that was shipped to her residence in February 2002.
The probation officer responded that (1) shipping records showed that at least five
crates were shipped to Curry’s residence, (2) all of these crates came from the same
sender through the same shipper, (3) the 175.90 kilograms of marijuana attributed
to Curry based on these prior shipments properly was estimated using the weights
of the February 2002 delivery, that is, 54.4 kilograms of marijuana comprised 80-
percent of the weight of the crate.
10
At sentencing, Curry renewed her objection to the recommended drug
amount. Curry again argued that this amount was improperly speculative because
(1) the procedure used by the probation officer to calculate an estimate of the
amount of marijuana involved in the prior deliveries was improper, (2) the
government failed to show that these prior deliveries even contained marijuana,
and (3) the government failed to show who accepted these deliveries. The
government responded that this drug calculation, which included relevant conduct,
was correct because (1) the crates used in the previous deliveries were the same
types of crate that had been used to transport the marijuana in February 2002, and
(2) regardless of whether Curry personally had accepted delivery of all of these
crates, someone had accepted delivery of them during the course of the conspiracy
of which Curry had been convicted.
The district court overruled Curry’s objection to drug amount, finding it
“more likely than not that those crates contained marijuana.” The court also
discussed as follows:
The issue with regard to how much marijuana, the Court doesn’t have
any precise figures, and there’s no way of knowing that. The Court is
allowed to make a reasonable estimate with regard to the guideline
calculation. It’s only material if there’s more than 45.6 grams–or
kilograms, rather, of marijuana, that gets it over the [100] kilogram
threshold, because you had 54.4 kilograms of marijuana that was
actually seized in the case.
11
The methodology used by probation, in my view, is reasonable.
Probation comes up with 175 kilograms, which is far more than you
need to satisfy the guideline threshold that’s applicable in this case.
So the Court finds that there was at least 50 additional kilograms of
marijuana in those other crates, and that that marijuana is attributable
to the defendant. And the Court will overrule the objection.
After granting Curry’s motion for a downward departure to criminal history
category II, pursuant to U.S.S.G. § 4A1.3, thereby reducing her advisory guideline
range to 70 to 87 months’ imprisonment, the court sentenced Curry to 70 months’
imprisonment, 3 years’ supervised release, and $200 in special assessment fees.
Issue 1: Whether a material and prejudicial variance occurred
Curry argues on appeal that no reasonable jury could have determined
beyond a reasonable doubt that a single conspiracy existed because the government
failed to introduce evidence connecting the crate Curry received in February 2002,
to the drug-distributing operation Thomas was conducting in Ohio, other than the
fact that CBS, a legitimate packaging and shipping company, was used in both
cases. Curry alternatively contends that, even if the government established that
she and Thomas received drugs from the same supplier, this fact, alone, did not
establish a single conspiracy. Additionally, Curry argues that the government
failed to establish that a conspiracy existed between herself and the Campbells by
12
showing only that (1) the minivan used was registered to Mr. Campbell, and
(2) Mrs. Campbell attempted to contact Curry after Curry’s arrest.
Reversal is warranted if (1) a single conspiracy is charged in the indictment
but multiple conspiracies are proven at trial, and (2) the variance was material and
substantially prejudiced the defendant. United States v. Suarez, 313 F.3d 1287,
1289 (11th Cir. 2002) (citation omitted). “The arguable existence of multiple
conspiracies, however, does not constitute a material variance from the indictment
if, viewing the evidence in the light most favorable to the government, a rational
trier of fact could have found that a single conspiracy existed beyond a reasonable
doubt.” Id. To determine whether a jury could have found that a single conspiracy
existed, we review “(1) whether a common goal existed, (2) the nature of the
underlying scheme, and (3) whether the participants of the alleged multiple
schemes overlapped.” Id.We also have explained that, “to prove a single, unified conspiracy as
opposed to a series of smaller, uncoordinated conspiracies, the government must
show an interdependence among the alleged co-conspirators.” United States v.
Chandler, 388 F.3d 796, 811 (11th Cir. 2004). Separate transactions, however, are
not necessarily separate conspiracies, “so long as the conspirators act in concert to
further a common goal.” Id. “If a defendant’s actions facilitated the endeavors of
13
other co[-]conspirators or facilitated the venture as a whole, then a single
conspiracy is shown.” Id. (internal quotation and marks omitted). Indeed,
although we concluded in Chandler that no interdependence of the conspirators
existed, we noted that, unlike the charged conspiracy to commit mail fraud in
connection with a scheme to defraud promoters of promotional games by stealing
game stamps and redeeming them for money, “[i]n a drug conspiracy, in which the
object of the conspiracy is clearly illegal and there are various clandestine
functions to perform, the conspirators can be charged with knowledge that others
are performing these different functions.” Id. at 811-12 n.21.
Viewing the evidence in the light most favorable to the government,
although the government arguably relied on alternative conspiracy arguments
relating to evidence of drug activities conducted by Thomas and the Campbells, the
evidence reflected that Curry and Thomas both were engaged in the distribution of
marijuana. See United States v. Calderon, 127 F.3d 1314, 1327 (11th Cir. 1997)
(emphasizing that “common” for purposes of this test means “similar” or
“substantially the same,” rather than “shared” or “coordinate[d]”); United States v.
Adams, 1 F.3d 1566, 1584 (11th Cir. 1993) (holding that the “common goal”
inquiry was satisfied by the common crime of co-conspirators’ importation of
marijuana). Curry and Thomas also used essentially the same means of
14
transporting this marijuana, that is, placing the marijuana in the bottom of hand-
fashioned wooden crates. See Calderon, 127 F.3d at 1327 (explaining that the drug
smuggling occurred aboard the same vessel, in the same hidden compartments, and
in essentially the same manner and over a relatively short period of time).
Additionally, although Thomas conceded that he did not know Curry, the
government established that both Thomas and Curry received deliveries from
“Classic Collectibles” through CBS and via Old Dominion. See United States v.
Anderson, 326 F.3d 1319, 1327-28 (11th Cir. 2003) (explaining that we “permit[]
the finding of a single conspiracy where a ‘key man’ directs the activities,
coordinating the individual efforts of various combinations of people”); United
States v. Stitzer, 785 F.2d 1506, 1518 (11th Cir. 1986) (holding that the overlap of
a common distributor was sufficient to support the finding that five separate
conspiracies were part of one conspiracy). Thus, viewing the evidence in the light
most favorable to the government, a rational jury could have found beyond a
reasonable doubt that a single conspiracy between Thomas and Curry existed. See
Suarez, 313 F.3d at 1289.
Nevertheless, we need not determine whether a variance occurred because
Curry has failed to show that she was prejudiced. “[V]ariance from an indictment
is not always prejudicial, nor is prejudice assumed.” United States v. Alred, 144
15
F.3d 1405, 1415 (11th Cir. 1998) (quotation omitted). To demonstrate substantial
prejudice, the defendant must show: “(1) that the proof at trial differed so greatly
from the charges that [she] was unfairly surprised and was unable to prepare an
adequate defense; or (2) that there are so many defendants and separate
conspiracies before the jury that there is a substantial likelihood that the jury
transferred proof of one conspiracy to a defendant involved in another.” Id.(quotation omitted) (emphasis in original).
In Chandler, we determined that the defendants were prejudiced by the
material variance when the government alleged conduct that was not a crime and
spent substantial time during the trial eliciting testimony regarding that “crime,”
before conceding at the end of trial that the law was to the contrary. See Chandler,
388 F.3d at 812. We concluded that the jury’s decision to convict the defendants
in the “utter absence of any proof,” and after the court gave a last-minute
instruction completely reversing the court’s earlier position on the charged
conspiracy, demonstrated that the jury was prejudiced by evidence of another
conspiracy. See id. at 812-13.
On the other hand, in United States v. Glinton, 154 F.3d 1245 (11th Cir.
1998), we concluded that the defendants were fairly apprised of their charged
activity and that, although they each argued from the government’s omission of
16
joint evidence that they knew nothing of the drug operation, the evidence of their
own purchases and distributions was left unimpeached. See id. at 1252 (affirming
despite that evidence in narcotics prosecution that defendants purchased large
amounts of cocaine from the same supplier, cooked it, and distributed it as cocaine
base was insufficient to establish the existence of a single conspiracy). We also
concluded that, to the extent the defendants were arguing that they were prejudiced
by the spillover of evidence as the result of being tried together, this argument was
belied, at least in part, by the court’s instruction to the jury that it had to acquit
unless one of the several conspiracies that was proved was the single charged
conspiracy. See id. (“[w]hen the proof at trial reveals the existence of more than
one conspiracy, the adequacy of the trial judge’s instructions are of critical
importance in evaluating the likelihood that confusion or prejudice resulted from
transference of guilt from one conspiracy to another”) (quotation omitted).
Here, Curry was the only defendant at trial, and her superseding indictment
generally charged her with conspiring “with other persons” to possess with intent
to distribute an unidentified quantity of marijuana. Curry also has failed to explain
how “the proof at trial differed so greatly from the charges that [she] was unfairly
surprised and was unable to prepare an adequate defense.” See Alred, 144 F.3d at
1415. Indeed, similar to the facts in Glinton, the evidence of her role in accepting
17
the February 2002 delivery was left unimpeached. Additionally, the court
instructed the jury that it had to find “unanimously, that [Curry] was a member of
the conspiracy charged in the superseding indictment, and not a member of some
other, separate conspiracy.” See United States v. Ramirez, 426 F.3d 1344, 1352
(11th Cir. 2005) (explaining that a jury is presumed to follow instructions given to
it by the court).
Thus, even if a material variance between the conspiracy charged in Curry’s
indictment and the evidence at trial resulted, Curry has not demonstrated that she
was substantially prejudiced. We, therefore, conclude that any variances were
immaterial and affirm Curry’s convictions.
Issue 2: Motion for a judgment of acquittal
Curry also summarily argues that, for the same reasons why a material
variance between the indictment and the proof at trial resulted, no reasonable jury
could have found her guilty of the charged conspiracy. Curry contends that we
must reverse her conviction “unless reasonable minds could conclude that the
evidence is inconsistent with every hypothesis of innocence.” Additionally,
Curry asserts for the first time in reply that an unsupported allegation that she “was
involved in a conspiracy with some unknown party” was insufficient.8
8
To the extent Curry appears to be challenging the sufficiency of her indictment for the
first time in reply, we conclude that she abandoned it by not arguing it in her initial brief. See
18
We review de novo the denial of a motion for a judgment of acquittal.
United States v. Hernandez, 433 F.3d 1328, 1332 (11th Cir. 2005), cert. denied,
126 S.Ct. 1635 (2006). “When the motion raises a challenge to the sufficiency of
the evidence, we review the sufficiency of the evidence de novo, drawing all
reasonable inferences in the government’s favor.” Id. (quotation omitted). “The
evidence is sufficient where a reasonable trier of fact could conclude that the
evidence established guilt beyond a reasonable doubt.” United States v. Marte,
356 F.3d 1336, 1344-45 (11th Cir. 2004). “Indeed, a verdict of guilty cannot be
disturbed if there is substantial evidence to support it, ‘unless no trier of fact could
have found guilt beyond a reasonable doubt.’” United States v. Pineiro, 389 F.3d
1359, 1367 (11th Cir. 2005) (internal quotation omitted).
“To sustain a conviction for conspiracy to possess [marijuana] with intent to
distribute, the government must prove beyond a reasonable doubt that (1) an illegal
agreement existed; (2) the defendant knew of it; and (3) the defendant, with
knowledge, voluntarily joined it.” Hernandez, 433 F.3d at 1333 (quotation
omitted). In determining whether an illegal agreement existed, “[i]t is well settled
that the existence of an agreement in a conspiracy case is rarely proven by direct
United States v. Smith, 416 F.3d 1350, 1352 n.1 (11th Cir.) (explaining that the prudential rule
of declining to consider issues not timely raised in a party’s initial brief is “well-established” in
this Circuit), cert. denied, 126 S.Ct. 784 (2005).
19
evidence that the conspirators formally entered or reached an agreement . . .. The
more common method of proving an agreement is through circumstantial
evidence.” Pineiro, 389 F.3d at 1369 (internal quotation and marks omitted).
Moreover, the government need only prove that the defendant “knew the general
nature and scope of the conspiracy.” Id. at 1368.
As discussed in Issue 1, although the government did not present direct
evidence of a conspiratorial agreement, circumstantial evidence of this agreement
included that Curry and Thomas both were engaged in the distribution of
marijuana; Curry and Thomas used essentially the same means of transporting this
marijuana, that is, in the bottom of hand-fashioned wooden crates; and both
Thomas and Curry received deliveries from “Classic Collectible” through CBS,
and via Old Dominion. Additionally, although Curry told law-enforcement
officers who stopped her in February 2002, that she did not know of the contents of
the crate inside the minivan and that the crate was in the minivan before she started
driving it, this statement was belied by evidence that wood fragments recovered
from the floor of the garage, where the crate was delivered, matched wood
(1) observed on Curry’s clothing, and (2) used to manufacture the crate. Thus,
even though, as the district court noted, evidence of a conspiracy was not
20
“overwhelming,” Curry has failed to show that “no trier of fact could have found
guilt beyond a reasonable doubt.” See id. at 1367.
Issue 3: Evidence of prior shipments addressed to Curry’s residence
Curry argues that the district court abused its discretion in admitting
evidence of prior shipments that listed her residence as the delivery address.
Curry concedes that this admission followed our decision vacating the district
court’s earlier order granting her motion to exclude this evidence, but she contends
that our decision was in error due to the government’s creating the misleading
inference that CBS was not a legitimate business. Curry also contends that the
prejudicial effect of this evidence outweighed any probative value because the
government failed to show either the contents of these prior shipments, or that the
shipments were actually delivered to her residence.
The doctrine of the law of the case “bars relitigation of issues that were
decided, either explicitly or by necessary implication, in an earlier appeal of the
same case.” United States v. Jordan, 429 F.3d 1032, 1035 (11th Cir. 2005). Thus,
under this doctrine, “an issue decided at one stage of the case is binding at later
stages of the same case.” United States v. Escobar-Urrego, 110 F.3d 1556, 1560
(11th Cir. 1997). This doctrine has “developed to maintain consistency and avoid
reconsideration of matters once decided during the course of a single continuing
21
lawsuit.” Id. (quotation omitted). It, however, has exceptions, including when “the
evidence on a subsequent trial was substantially different, controlling authority has
since made a contrary decision of the law applicable to such issues, or the decision
was clearly erroneous and would work a manifest injustice.” Id. at 1561 (quotation
omitted).
In vacating the district court’s order granting Curry’s motion to exclude
evidence of four prior shipments that listed Curry’s residence as the delivery
address, we explained that this evidence should not be excluded because (1) it was
relevant to show that Curry was part of a larger conspiracy, and (2) the probative
value of this evidence was not substantially outweighed by any prejudice. As
discussed above, Curry is contending that the district court was not barred by this
prior decision from excluding this evidence because the evidence at trial revealed
that, contrary to the government’s arguments relating to the original motion to
exclude, CBS was merely the shipper and, thus, not criminally connected with
“Classic Collectibles.” Despite this evidence, however, the government still
established that “Classic Collectibles,” through CBS, previously shipped four other
crates to Curry’s residence via Old Dominion, and that at least two of the crates
actually were delivered to her residence. Thus, the evidence at trial was not
“substantially different,” and our earlier decision that this evidence was admissible
22
was controlling. See id. The district court, therefore, did not err in admitting
evidence of prior crate shipments.
Issue 4: Calculation of Curry’s offense level
Curry last challenges her 70-month sentence, arguing that the district court,
in calculating her base offense level, clearly erred in determining drug amount.
Curry contends that the court should not have included in this calculation evidence
of the prior shipments that were purportedly made to her residence because: (1) the
contents of these prior shipments was purely speculative; and (2) the government
presented no evidence showing that Curry received any of these prior shipments.
Curry also asserts that this calculation was arbitrary and speculative because the
actual amount of marijuana was based solely on the drug and packing weights of
the crate in the instant case. Additionally, Curry argues that, although her
guideline range was only advisory under United States v. Booker, 543 U.S. 220,
125 S.Ct. 738, 160 L.Ed.2d 621 (2005), she was prejudiced by this error because
the court clearly intended to sentence her at the bottom of her guideline range.
In Booker, the Supreme Court concluded that a defendant’s guideline range
is now advisory and no longer dictates his final sentence, but, instead, is an
important sentencing factor that the sentencing court is to consider, along with the
factors contained in 18 U.S.C. § 3553(a). Booker, 543 U.S. at 259-60, 125 S.Ct. at
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764-65. Post-Booker, “the district court remains obliged to ‘consult’ and ‘take into
account’ the [g]uidelines in sentencing.” United States v. Crawford, 407 F.3d
1174, 1178 (11th Cir. 2005). “This consultation requirement, at a minimum,
obliges the district court to calculate correctly the sentencing range prescribed by
the [g]uidelines[.]” Id. (emphasis in original). We also continue to review a
district court’s factual determinations, such as the drug amount at issue on appeal,
for clear error. See id. at 1178-79 (11th Cir. 2005) (explaining that Booker did not
alter either our review of the application of the guidelines, or our standards of
review). We cannot find clear error unless it is “left with a definite and firm
conviction that a mistake has been committed.” Id. at 1177 (quotation omitted).
Section 2D1.1 of the federal guidelines provides that the base offense level
for a possession or a conspiracy drug offense ordinarily is calculated by
determining the quantity of drugs attributable to a defendant. See generally
U.S.S.G. § 2D1.1(a). To sentence Curry based on an offense level of 26, the
district court had to find her responsible for at least 100 kilograms of marijuana.
See U.S.S.G. § 2D1.1(c)(7). The federal guidelines also provide that court must
attribute to a defendant “all the drugs foreseeably distributed pursuant to a
common scheme of which the defendant’s offense of conviction is a part.” United
States v. Agis-Meza, 99 F.3d 1052, 1054 (11th Cir. 1996).
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“When the defendant objects to a factual finding that is used in calculating
his guideline sentence, such as drug amount, the government bears the burden of
establishing the disputed fact by a preponderance of the evidence.” United States
v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir), cert. denied, 125 S.Ct. 2935 (2005).
“Where there is no drug seizure or the amount seized does not reflect the scale of
the offense, the court shall approximate the quantity of the controlled substance.”
Id. (quotation and internal quotation omitted). “[I]n estimating the quantity of
drugs attributable to a defendant, a court may base its computation on evidence
showing the average frequency and amount of a defendant’s drug sales over a
given period of time.” Id. Although sentencing cannot be based on calculations of
drug quantities that are merely speculative, sentencing “may be based on fair,
accurate, and conservative estimates of the quantity of drugs attributable to a
defendant.” United States v. Zapata, 139 F.3d 1355, 1359 (11th Cir. 1998).
The crate of marijuana that was sent to Curry and was seized by law-
enforcement agents on February 28, 2002, contained 115 pounds of marijuana, that
is, 54 kilograms of marijuana. Additionally, the government offered testimony at
trial that Old Dominion previously had delivered similar crates from Classic
Collectibles to Curry’s address, including: (1) a 75-pound crate of “decorations or
notations” to “Mitchell Roofing, Inc.” at Curry’s address on May 30, 2001;
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(2) a 110-pound crate containing a “statute” to “Mitchell Roofing, Inc.” at Curry’s
address on July 3, 2001; (3) a 160-pound crate containing another “statue” to
“Mitchell Roofing, Inc.” at Curry’s address on July 31, 2001; and (4) a 140-pound
crate of “ornaments” to “Mitchell Roofing, Inc.” at Curry’s address on December
4, 2001. Using the weights of the February 2002 delivery, that is, 54.4 kilograms
of marijuana comprised 80-percent of the weight of the crate, the court, over
Curry’s objection, concluded that these prior four crate deliveries involved an
additional 175.90 kilograms of marijuana. Thus, the court concluded that the
government established “far more” than necessary to justify an offense level of 26
under § 2D1.1(c)(7).
Curry is contending that the court clearly erred in finding that the shipments
made prior to February 2002, actually were delivered to her address, and she has
cited to Dilenge’s initial testimony that he could not remember whether he had
made any shipments to Curry’s residence before February 2002. However, the fact
that all of these shipments listed Curry’s address and at least some of them also
included her cell-phone number as the consignee’s number, as well as listing Mrs.
Campbell’s home-phone number as a consignee number, demonstrates that these
shipments were “foreseeably distributed pursuant to a common scheme of which
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[Curry’s] offense of conviction [was] a part” and, thus, countable as relevant
conduct. See Agiz-Meza, 99 F.3d at 1054.
Additionally, to the extent Curry is challenging the court’s finding that these
prior shipments contained 175 kilograms of marijuana, and she is relying on the
fact that these shipments were not seized, these shipments, like the shipment seized
in February 2002, and the shipments sent to Thomas, (1) were sent in crates from
“Classic Collectibles” through CBS and via Old Dominion; and (2) had contents
identified as “decoration,” “ornaments,” or “statues.” Thomas also explained that
“statue” was the cover description for marijuana he received. Moreover, in the
absence of direct evidence of the amount of marijuana contained in these crates,
the court did not clearly err in estimating these amounts based on the amount and
percentage of marijuana recovered from the February 2002 shipment, and its
conservative estimate of 175 kilograms was well over the 46-kilogram amount
necessary to justify an offense level of 26. See Rodriguez, 398 F.3d at 1296; see
also Zapata, 139 F.3d at 1359. Thus, the district court did not clearly err in
determining that Curry should be held accountable for at least 100 kilograms of
marijuana and in sentencing her based on an offense level of 26.
Accordingly, we conclude that, if any material variance occurred between
Curry’s conspiracy charge in her indictment and the proof at trial, she was not
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prejudiced by it. Because Curry failed to show that “no trier of fact could have
found guilt beyond a reasonable doubt,” the district court did not err in denying
Curry’s motion for a judgment of acquittal as to her conspiracy charge. Under the
law-of-the-case doctrine, the district court also did not err in denying Curry’s
motion to exclude evidence of other shipments addressed to her residence after we
determined that this evidence was admissible. Finally, the district court did not
clearly err in using reasonable and conservative estimates in determining the
amount of drugs attributable to Curry. We, therefore, affirm Curry’s convictions
and her total 70-month sentence.
AFFIRMED.
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