United States v. Timothy Terrill Carpenter , 457 F. App'x 889 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-10684 FEB 10, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 08-00064-CR-2-LSC-RRA
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TIMOTHY TERRILL CARPENTER,
BORIS VERNARD AGEE,
a.k.a. Mac-Bo,
JARED KENYATTA CALHOUN,
SOLOMON GRADY JOHNSON,
a.k.a. Big Sol,
a.k.a. Mimi,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Northern District of Alabama
________________________
(February 10, 2012)
Before CARNES and HULL, Circuit Judges, and ROTHSTEIN,* District Judge.
PER CURIAM:
After review and oral argument, we AFFIRM the convictions of each
appellant. We also AFFIRM the sentences of Boris Vernard Agee (“Agee”) and
Timothy Terrill Carpenter (“Carpenter”), but VACATE the sentence of Jared
Kenyatta Calhoun (“Calhoun”) and REMAND for resentencing in a manner
consistent with this opinion.
This appeal stems from a multi-defendant criminal case involving drug
trafficking and counterfeiting offenses. Specifically, in April 2008, a federal
grand jury issued a 55-count superceding indictment against 10 defendants
involving crimes committed in Birmingham, Alabama. Five defendants, including
the four on appeal here, were tried together. An additional defendant, Courtney
Campbell, pled guilty and testified on behalf of the government. After the first
trial ended in a mistrial, a jury convicted the four defendants and acquitted the
fifth defendant. This appeal followed.
Appellants raise numerous arguments on appeal. The court will address
each appellant’s arguments.
*
Honorable Barbara Jacobs Rothstein, United States District Judge for the Western
District of Washington, sitting by designation.
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I. Johnson
At the second trial, Solomon Grady Johnson (“Johnson”) was convicted of
multiple drug trafficking counts, including conspiracy to distribute powder and
crack cocaine (Count 1), 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846, possession with
intent to distribute powder cocaine (Count 5), 21 U.S.C. § 841(a)(1), (b)(1)(C),
distribution of crack cocaine (Counts 7 & 9), 21 U.S.C. § 841(a)(1), (b)(1)(C), and
unlawful use of a telephone (Counts 38, 39, 44-46 & 51), 21 U.S.C. § 843(b). He
was sentenced to 360 months in prison on counts 1, 7 and 9. He received lesser
concurrent sentences on the remaining counts. On appeal, Johnson argues that the
trial court erred in overruling his motion to dismiss based on double jeopardy
grounds.
The facts relevant to this issue are few. After the jury was empaneled and
sworn for the first trial, the trial court realized that the trial was going to take
longer than had been originally anticipated. Because of personal commitments,
the court informed the parties and jury that there would be a two-week
continuance in the middle of trial. Several jurors claimed that they would face a
hardship from the continuance, leaving only 11 jurors to hear the case. After
considering their options, defendants asked the court to declare a mistrial. The
court did so, and the matter was then reassigned to a new trial judge and a second
3
trial was held. On these facts, Johnson argues that he was subjected to
unconstitutional multiple prosecutions.
Ordinarily, challenges related to double jeopardy are reviewed de novo.
United States v. Baggett, 901 F.2d 1546, 1548 (11th Cir. 1990). “We are
precluded, however, from reviewing an issue raised on appeal if it has been
waived through the doctrine of invited error.” United States v. Brannan, 562 F.3d
1300, 1306 (11th Cir. 2009); see also United States v. Jernigan, 341 F.3d 1273,
1289 (11th Cir. 2003) (noting that no manifestation of review is available “where a
criminal defendant ‘invites’ the constitutional error of which he complains”).
Although Johnson recognizes that invited error generally precludes
appellate review, he contends that the trial court’s handling of the first trial’s
schedule “provoke[d]” a mistrial request. See Lee v. United States, 432 U.S. 23,
34 (1977). Such an argument only has value where a defendant can show that the
trial court was “motivated by bad faith” or acted “to harass or prejudice” the
defendant. Id. at 33. Neither is evident here. Accordingly, Johnson’s double
jeopardy argument has been waived and his conviction is affirmed.
II. Agee
Agee was convicted of several offenses, including conspiracy to utter
counterfeited securities (Count 12), 18 U.S.C. § 371. For his role, he was
4
sentenced to 22 months in prison followed by three years of supervised release.
On appeal, Agee argues that the sentencing judge erred in imposing a sentence that
was substantially longer than those of co-defendants who pled guilty and who
were involved in similar charged conduct.1
We review the reasonableness of a sentence under the deferential abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007). Specifically,
“[w]e must evaluate whether the sentence imposed by the district court fails to
achieve the purposes of sentencing as stated in [18 U.S.C. §] 3553(a)” while
recognizing that “there is a range of reasonable sentences from which the district
court may choose.” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
The party challenging the sentence “bears the burden of establishing that the
sentence is unreasonable in light of [the] record and the factors in section
3553(a).” Id. Although a sentence within the advisory guidelines range is not per
se reasonable, we would ordinarily expect such a sentence to be reasonable. Id.The purposes of sentencing referenced in § 3553(a) include the need for the
sentence to reflect the seriousness of the offense, to promote respect for the law, to
1
During the pendency of the appeal, Agee was released from prison and both sides
requested dismissal on the grounds of mootness. However, in denying Agee’s unopposed motion
to dismiss his appeal, we rejected the mootness contention and noted that the pendency of Agee’s
supervised release left a ripe controversy for the court’s review. See Dawson v. Scott, 50 F.3d
884, 886 n.2 (11th Cir. 1995).
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provide just punishment, to deter criminal conduct, and to protect the public from
recidivism. 18 U.S.C. § 3553(a)(2). The sentencing court must also consider the
nature of the circumstances of the offense and the history of the defendant, the
kinds of sentences available, the applicable guidelines range, pertinent policy
statements of the Sentencing Commission, the need to avoid unwarranted
sentencing disparity, and the need to provide restitution to victims. Id. §
3553(a)(1), (3)-(7). The weight accorded to these factors is a matter within the
sentencing court’s discretion. United States v. Clay, 483 F.3d 739, 743 (11th Cir.
2007).
Agee contends that his sentence is substantially higher than that of similar
co-defendants such that it is unreasonable. Upon review of the record, we find no
error. Specifically, we note that the sentencing court found that Agee was more
culpable than the co-defendants who received lower sentences. Moreover, by
sentencing Agee within the applicable guidelines range, the sentencing court
ensured that there was no unwarranted disparity between Agee’s sentence and
those normally imposed on similarly situated defendants. See United States v.
Regueiro, 240 F.3d 1321, 1325-26 (11th Cir. 2001) (noting that sentence disparity
between co-defendants is seldom a basis for relief particularly where the sentence
is in line with those who committed similar offenses in other cases). Accordingly,
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Agee’s sentence is affirmed.
III. Carpenter
Carpenter was convicted of multiple drug trafficking counts, including
conspiracy to distribute powder and crack cocaine (Count 1), 21 U.S.C. §§
841(a)(1), (b)(1)(A), 846, and distribution of powder and crack cocaine (Count 3),
21 U.S.C. § 841(a)(1), (b)(1)(A), (b)(1)(C). Given Carpenter’s three prior felony
drug convictions, he was sentenced to two concurrent terms of life in prison. On
appeal, Carpenter raises three alleged errors. First, he contends that he was
prejudiced by the admission of undisclosed prior bad acts evidence. Second, he
contends that there was insufficient evidence to convict him of participating in the
drug conspiracy. Third, he contends that his life sentence violates the Eighth
Amendment.
A. Admission of Undisclosed Prior Bad Acts Evidence
Carpenter contends that he was prejudiced by the admission of prior bad
acts evidence that was not disclosed by the government prior to trial as required by
Fed. R. Evid. 404(b). “We review the district court’s evidentiary rulings for clear
abuse of discretion.” United States v. Smith, 459 F.3d 1276, 1295 (11th Cir.
2006).
At the second trial, the government offered evidence regarding several 2007
7
controlled drug transactions between a confidential informant and Carpenter. In
relation to these transactions, the informant testified that he began buying cocaine
from Carpenter in 1995. The temporal scope of the informant’s testimony was not
revealed to Carpenter in advance. Defense counsel immediately objected to its
introduction. Although the trial court acknowledged during a sidebar conference
that the government would have been better served by providing notice that the
informant intended to testify that Carpenter sold him drugs as far back as 1995, the
court concluded that the testimony was admissible to provide appropriate context
for the informant’s 2007 controlled buy from Carpenter.
Carpenter argues that the testimony was Rule 404(b) evidence and should
have been disclosed. Furthermore, he contends that he was substantially
prejudiced by its improper admission. By contrast, the government argues that the
testimony was not Rule 404(b) evidence because the informant’s drug-dealing
relationship with Carpenter, although occurring before the charged conspiracy,2
was interrelated with the conspiracy.
Upon review of the record, we find that the trial court did not abuse its
discretion by admitting the testimony of the informant related to Carpenter’s 1995
drug history. Prior rulings of this court have explained that “[e]vidence of
2
The charged conspiracy began in 2000.
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criminal activity other than the offense charged is not extrinsic under Rule 404(b)
if it is . . . necessary to complete the story of the crime, or . . . inextricably
intertwined with the evidence regarding the charged offense.” United States v.
Veltmann, 6 F.3d 1483, 1498 (11th Cir. 1993). The informant’s testimony here
meets both thresholds. First, the testimony helped to complete the story about how
the informant was able to execute controlled drug transactions with Carpenter in
2007 without him becoming suspicious about the circumstances. Second, the
1995 testimony was “inextricably intertwined” with testimony regarding the 2007
controlled drug transaction. Accordingly, the trial court properly admitted the
testimony at trial over Carpenter’s objection.
B. Sufficiency of Evidence Related to the Drug Conspiracy
Carpenter asserts that there was insufficient evidence to convict him of
participating in the drug conspiracy. “We review de novo a defendant’s claim that
the evidence was insufficient to convict him, viewing the evidence and all
reasonable inferences and credibility choices in the light most favorable to the
government.” United States v. Anderson, 289 F.3d 1321, 1325 (11th Cir. 2002).
The charged drug conspiracy related, in part, to several individuals’
involvement in a motorcycle group formed in 2000 by Campbell and Johnson
named the Southern Boyz Motorcycle Club (hereinafter “Southern Boyz”). There
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was evidence presented at trial that Southern Boyz operated as a front to distribute
powder and crack cocaine in Birmingham, Alabama. There was also evidence that
Carpenter was a member of Southern Boyz and that he and Campbell received
cocaine from the same supplier, Nicholas Harmon, who was a cooperating witness
for the government. The cocaine supplied by Harmon to Campbell and Carpenter
was known as the “brown” cocaine because of its unique color. Campbell and
Carpenter then resold the brown cocaine.
On appeal, Carpenter argues that the only evidence linking him to the drug
conspiracy was his involvement in Southern Boyz and that there was no evidence
that he had an agreement with Campbell or any other defendant to participate in a
drug conspiracy. The government counters that evidence linking Carpenter and
Campbell to Harmon and the sale and resale of the brown cocaine, in addition to
evidence of Carpenter’s involvement in Southern Boyz, was sufficient for a jury to
find Carpenter guilty of participating in the drug conspiracy.
To sustain a conviction for conspiracy to distribute cocaine, the government
must prove that “1) an agreement existed between two or more persons to
distribute the drugs; 2) that the defendant at issue knew of the conspiratorial goal;
and 3) that he knowingly joined or participated in the illegal venture.” United
States v. Matthews, 168 F.3d 1234, 1245 (11th Cir. 1999). As a preliminary
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matter, proof of a formal agreement between Carpenter and Campbell (or anyone
in Southern Boyz) to distribute drugs is unnecessary. It is well settled that
circumstantial evidence can suffice to prove the existence of an agreement. See,
e.g., United States v. Toler, 144 F.3d 1423, 1426 (11th Cir. 1998). Here, both
Campbell and Carpenter were members of Southern Boyz. Southern Boyz was a
known front for drug trafficking. Both Campbell and Carpenter received drugs
from Harmon and resold those drugs to buyers in Birmingham. Given the overlap
in the men’s illicit activities, it was reasonable for the jury to infer that an
agreement to distribute drugs existed.
As to the remaining factors, viewing the evidence in the light most
favorable to the government, there is sufficient evidence for a jury to find
Carpenter guilty of participating in the drug conspiracy. It was reasonable for the
jury to infer that the men knew of each other’s drug dealings and, in fact, that they
knowingly participated in those activities together through their affiliation with
Southern Boyz. Regardless that their activities could also be viewed as in
competition with each other for the sale of the brown cocaine, the evidence shows
that “their combined efforts produced a haven for the illegal distribution of drugs”
in Birmingham. See United States v. Westry, 524 F.3d 1198, 1213 (11th Cir.
2008). Where the record arguably shows “that the principals, including
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Appellants, shared . . . sources, distributors, and customers, the fact that [they]
‘may sometimes, or even always, compete for supplies or customers in serving that
market does not on that account alone disprove . . . the existence of a single
conspiracy to achieve the overall results of their several efforts.’” Id. (quoting
United States v. Johnson, 54 F.3d 1150, 1154-55 (4th Cir. 1995) (citation
omitted)). In fact, it can be concluded that through Campbell’s and Carpenter’s
efforts, drug trafficking activity grew, whether through their competition or
through their joint efforts. See id. As in Westry, “[w]hen measured against the
governing standards, we are persuaded that sufficient evidence was presented to
sustain the conspiracy conviction[].” Id.3 Accordingly, Carpenter’s drug
conspiracy conviction is affirmed.
C. Eighth Amendment Sentencing Issue
Carpenter asserts that his concurrent life sentences are disproportionate to
his present and prior convictions. We review properly preserved constitutional
challenges, like the one here, de novo. See United States v. Lyons, 403 F.3d 1248,
1250 (11th Cir. 2005). In so doing, we are bound by prior panel decisions that
have not been overruled by the court sitting en banc or by the Supreme Court.
3
As will be discussed in relation to Calhoun, Campbell was at the center of several drug
conspiracies. Regardless of the scope of Campbell’s drug-dealing activities, the evidence against
Carpenter is sufficient to find him guilty of the charged conspiracy.
12
United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008).
Here, because Carpenter had three prior felony drug convictions, his drug-
related offenses in this case triggered the mandatory life sentence requirement of
21 U.S.C. § 841(b)(1)(A). We have already rejected an Eighth Amendment
challenge related to the mandatory life sentence requirement of § 841(b)(1)(A).
See United States v. Willis, 956 F.2d 248, 250-51 (11th Cir. 1992) (citing
Harmelin v. Michigan, 501 U.S. 957 (1991)). Carpenter’s Eighth Amendment
challenge is foreclosed by our decision in Willis. Like the defendant in that case,
Carpenter had a history of recidivism with respect to drug offenses, and was
recently convicted of a serious offense involving substantial quantities of drugs.
Accordingly, Carpenter’s sentence is affirmed.
IV. Calhoun
Calhoun was convicted of conspiracy to distribute powder cocaine (Count
1), 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846, conspiracy to utter counterfeit
securities, (Count 12), 18 U.S.C. § 371, and unlawful use of a telephone (Counts
48, 50 & 55), 21 U.S.C. § 843(b). Calhoun was acquitted of the portion of Count
1 related to the distribution of crack cocaine. He was sentenced to 160 months in
prison on the drug conspiracy conviction and to lesser concurrent terms on the
remaining convictions. On appeal, Calhoun raises five alleged errors. First, he
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contends that there was insufficient evidence to convict him of participating in the
counterfeiting conspiracy. Second, he contends that there was a material variance
between the charged conspiracy and the conspiracy he allegedly participated in.
Third, and relatedly, he contends that there was insufficient evidence to convict
him of participating in the drug conspiracy relevant to him. Fourth, he contends
that the sentencing court failed to make the appropriate individualized findings at
the sentencing hearing. Lastly, he contends that his sentence is substantively
unreasonable in violation of the Sixth Amendment.
Prior to resolution of these issues, additional background regarding the
charged conspiracy and Calhoun’s activities is necessary. The indictment
specifically alleged that from on or about January 2000 to January 2008, Calhoun
conspired with seven other individuals (including Campbell and Carpenter) to
possess with the intent to distribute five kilograms or more of powder cocaine and
50 grams or more of crack cocaine in Birmingham, Alabama. For his part,
Calhoun was convicted of conspiring to distribute less than 500 grams of powder
cocaine. Calhoun was also convicted of participating in the counterfeiting
conspiracy.
The facts giving rise to Calhoun’s conspiracy convictions are that Campbell
sold cocaine to Calhoun. Calhoun was a cocaine user, but also resold some of the
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cocaine to others in Birmingham. More specifically, the evidence presented at
trial was that from 2004 to 2008 Calhoun made between eight and ten purchases
from Campbell of up to 1/4 kilogram of cocaine at a time. Campbell testified that
he believed that Calhoun resold the cocaine to others about “[n]inety percent of
the time.” In a recorded telephone call between Calhoun and Campbell, Calhoun
can be heard to offer to “split the profit” with Campbell. Additionally, Calhoun
complained to Campbell that a delayed drug sale between the two men prevented
Calhoun from obtaining any drugs for his customers. In another recorded
telephone conversation, Calhoun and Campbell discussed the exchange of
counterfeit money, including that Calhoun would pay Campbell $12,000 of
legitimate money in exchange for $40,000 of counterfeit funds.
A. Sufficiency of Evidence Related to the Counterfeiting Conspiracy
Here, Calhoun argues that the government’s evidence against him consisted
of a single telephone call with Campbell. In that call, Calhoun inquires about
obtaining counterfeit funds from Campbell and appears to set a date for the
exchange. While Calhoun acknowledges that the conversation occurred, he
contends that it does not evidence that he actually purchased counterfeit funds
from Campbell or that he participated in an alleged conspiracy to exchange the
counterfeit funds in the marketplace.
15
As noted above, “[w]e review de novo a defendant’s claim that the evidence
was insufficient to convict him, viewing the evidence and all reasonable
inferences and credibility choices in the light most favorable to the government.”
Anderson, 289 F.3d at 1325.
There are three essential elements required to be shown in support of a
counterfeiting conspiracy: an agreement; knowing participation; and an overt act.
United States v. U.S. Infrastructure, Inc., 576 F.3d 1195, 1203 (11th Cir. 2009).
Here, when viewed in the light most favorable to the government, the evidence
related to Calhoun’s participation in the counterfeiting conspiracy was sufficient.
The telephone call between Campbell and Calhoun clearly shows an agreement
between them to exchange counterfeit money. The call also shows that Calhoun
knowingly and voluntarily participated in the conspiracy and the commission of an
overt act, namely the discussion about the exchange of money and the setting of a
time and date for it. It is immaterial whether proof exists to show that the deal was
consummated. See United States v. Elledge, 723 F.2d 864, 869 (11th Cir. 1984)
(“That the plan was not ultimately completed or executed does not negate the
crime of conspiracy.”). Accordingly, Calhoun’s counterfeiting conspiracy
conviction is affirmed.
B. Drug Conspiracy and Sentencing Issues
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Calhoun argues that there was a material variance between the charged drug
conspiracy and the evidence presented at trial. Specifically, Calhoun argues that
what the government attempted to prove at trial was the existence of “two separate
and distinct drug conspiracies”: (1) the massive Southern Boyz conspiracy, which
was the charged conspiracy, and (2) the smaller Campbell-Calhoun conspiracy.
Calhoun contends that there was no evidence linking him to the Southern Boyz
conspiracy or any large-scale drug distribution scheme as charged in the
indictment. Calhoun argues that the jury transferred evidence of the larger
conspiracy to him, making his conduct appear more significant than it actually
was.
In determining whether a conviction must be reversed because of a material
variance between the crime charged in the indictment and the evidence presented
at trial, we employ a two-step analysis. First, we view the evidence in the light
most favorable to the government and consider whether a reasonable jury could
have determined beyond a reasonable doubt that a single conspiracy existed.
United States v. Calderon, 127 F.3d 1314, 1327 (11th Cir. 1997). “Second, we
determine whether any substantial prejudice resulted to the defendant[] if more
than one conspiracy did in fact exist.” United States v. Coy, 19 F.3d 629, 633
(11th Cir. 1994).
17
The first step of the analysis requires the court to consider the following
factors: “(1) whether a common goal existed; (2) the nature of the underlying
scheme; and (3) the overlap of participants.” United States v. Seher, 562 F.3d
1344, 1366 (11th Cir. 2009) (internal quotation marks omitted). Here, while there
was evidence of a common goal among the defendants, namely the sale and
distribution of drugs in Birmingham through the aid of Campbell, the remaining
factors fall decidedly in Calhoun’s favor. Evidence at trial demonstrated that
Southern Boyz pooled assets and resources among Campbell, Johnson, Carpenter,
and their fellow members and associates. For example, when Johnson needed
assistance with converting powder cocaine to crack cocaine and Campbell was
unavailable, another Southern Boyz member helped him. There was also evidence
that Campbell would loan or swap drugs and money with other co-conspirators to
fill orders.
This overarching scheme stands in stark contrast to the evidence detailing
the relationship between Campbell and Calhoun. There is no evidence that
Calhoun was a member of or affiliated with Southern Boyz. Moreover, there is
also no evidence that members of Southern Boyz, besides Campbell, assisted
Calhoun in the sale or distribution of drugs. Indeed, while Campbell and other
members of Southern Boyz were under police surveillance over a multi-year
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period, Calhoun was never identified with anyone other than Campbell.
Moreover, it is significant that the jury acquitted Calhoun (but not Johnson or
Carpenter) of any allegation that he distributed crack cocaine as part of his
conduct.
A review of the evidence reveals that the scheme underlying the Southern
Boyz conspiracy involved frequent transactions between a variety of sellers and
buyers for large quantities of drugs (i.e., kilograms of powder and crack cocaine)
over a long period of time. By contrast, the Campbell-Calhoun conspiracy
involved infrequent transactions between two men for smaller quantities of drugs
(i.e., grams of powder cocaine only) during a shorter period of time. In summary,
there was insufficient evidence linking Calhoun to the scheme underlying the
Southern Boyz conspiracy and, other than Campbell, there was no overlap
between co-conspirators in the Southern Boyz conspiracy and Calhoun.
Although “[i]t is irrelevant that particular conspirators may not have known
other conspirators,” the evidence must suggest that the defendant knowingly
joined the conspiracy and participated in its underlying scheme. United States v.
Edouard, 485 F.3d 1324, 1347 (11th Cir. 2007). “It is clearly not sufficient
simply to say that the defendants each shared a common goal, to-wit: profit from
the sale of cocaine. In order to constitute a single conspiracy there must be a
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single enterprise which sets up a common goal connecting each defendant.”
United States v. Glinton, 154 F.3d 1245, 1251 (11th Cir. 1998); see also Kotteakos
v. United States, 328 U.S. 750, 769 (1946) (concluding that it was error to
“confuse[] the common purpose of a single enterprise with the several, though
similar, purposes of numerous separate adventures of like character”). Insofar as
Calhoun is concerned, we conclude that no reasonable jury could find beyond a
reasonable doubt that a single conspiracy existed in this case. As such, we agree
that there was a material variance between the conspiracy charged and the
evidence presented at trial.
“The finding that two conspiracies existed does not end the analysis. We
next inquire whether this variance prejudiced the defendant[’s] substantial rights.”
Coy, 19 F.3d at 634. Prejudice is usually found when “there are so many
defendants and so many separate conspiracies before the jury that there is a
substantial likelihood that the jury transferred evidence from one conspiracy to a
defendant involved in another conspiracy.” Id. In other words, a material
variance prejudices a defendant when it creates “a legitimate concern that a
defendant who operated on the periphery of a large, overarching conspiracy will
be unfairly grouped in with a larger conspiracy than he intended to join.” United
States v. Richardson, 532 F.3d 1279, 1291 (11th Cir. 2008).
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Here, we are convinced that Calhoun was not prejudiced by the material
variance. Although there was a large amount of evidence presented at trial that
related exclusively to the Southern Boyz conspiracy, neither conspiratorial scheme
was particularly complex. In addition, Calhoun was fairly apprised of the
evidence against him, namely that he participated in a conspiracy with Campbell
to sell and distribute cocaine. Campbell’s testimony about his drug distribution
relationship with Calhoun and the admission of the recorded telephone
conversations regarding their relationship were unimpeached on the record. See
Glinton, 154 F.3d at 1252 (finding no prejudice from material variance where
evidence clearly linked defendants to a specific conspiracy).
Moreover, the jury utilized special verdict forms for each defendant and
returned different verdicts on different counts for each defendant, including an
acquittal of Calhoun as to distribution of crack cocaine. See id. (finding it
persuasive that jury acquitted defendant of one conspiracy count, but not the other
conspiracy count, despite the material variance). “Such individual treatment of
the defendants by the jury demonstrates the absence of confusion and improper
transfers of evidence.” Coy, 19 F.3d at 635. In other words, “[t]hese divergent
verdicts indicate the jury . . . had no difficulty compartmentalizing the evidence
presented. [When such is the case, w]e conclude there [is] no prejudicial variance
21
. . . .” Glinton, 154 F.3d at 1252.
In the alternative, Calhoun argues that there was insufficient evidence to
convict him of participating in the Campbell-Calhoun conspiracy because there
was no evidence that he had an agreement with Campbell. Specifically, Calhoun
cites to the testimony of Campbell wherein he expressly testified that no
agreement existed between the two men “to distribute drugs” or “to go out and
commit crimes together.”
Viewing this challenge de novo and in the light most favorable to the
government, see Anderson, 289 F.3d at 1325, we find that there was sufficient
evidence to convict Calhoun of participating in a drug conspiracy with Campbell.
The two men conducted between eight and ten drug deals over a four-year period,
at times discussing whether to split the profit. Moreover, Calhoun purchased more
than just an amount that could be attributed to his personal use and, in fact,
Calhoun specifically told Campbell that he was reselling at least a portion of the
drugs he purchased from Campbell to third parties. This type of ongoing conduct
between buyer and seller provided sufficient circumstantial evidence for a
reasonable jury to find Calhoun guilty of participating in a drug conspiracy. See
United States v. Brown, 587 F.3d 1082, 1089 (11th Cir. 2009) (noting that it “is
well-established in this Circuit [that] where there are repeated transactions buying
22
and selling large quantities of illegal drugs, that is sufficient evidence that the
participants were involved in a conspiracy”); United States v. Mercer, 165 F.3d
1331, 1335 (11th Cir. 1999) (upholding conspiracy conviction where “evidence
show[ed] a continuing relationship that result[ed] in the repeated transfer of illegal
drugs to the purchaser”). Accordingly, Calhoun’s drug conspiracy conviction is
affirmed.
Despite the validity of the conviction, in light of our holding that the
government only proved that Calhoun participated in the smaller Campbell-
Calhoun conspiracy, Calhoun’s sentence must be vacated and the matter remanded
for resentencing consistent with this opinion. See, e.g., Coy, 19 F.3d at 637(“Having found that two separate conspiracies existed, we necessarily conclude
that the district court erred in attributing the total amount of [cocaine] involved in
both conspiracies to the defendant[].”). This decision obviates the need to resolve
Calhoun’s final claims related to his sentence.
AFFIRMED in part, VACATED in part, and REMANDED in part.
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