United States v. Calvin Stoddard , 892 F.3d 1203 ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 13, 2018 Decided June 15, 2018
No. 15-3060
UNITED STATES OF AMERICA,
APPELLEE
v.
CALVIN STODDARD,
APPELLANT
Consolidated with 15-3061, 15-3076
Appeals from the United States District Court
for the District of Columbia
(No. 1:13-cr-00200-6)
(No. 1:13-cr-00200-17)
(No. 1:13-cr-00200-2)
Jason M. Wilcox, appointed by the court, argued the cause
for appellants. With him on the briefs were William H.
Burgess, William L. Welch III, and Edward C. Sussman, all
appointed by the court.
Peter S. Smith, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Elizabeth Trosman,
John P. Mannarino, and Kenneth Whitted, Assistant U.S.
Attorneys.
2
Daniel J. Lenerz, Assistant U.S. Attorney, entered an
appearance.
Before: GRIFFITH, SRINIVASAN and WILKINS, Circuit
Judges.
Opinion for the Court filed by Circuit Judge WILKINS.
WILKINS, Circuit Judge: Calvin Stoddard, Sidney
Woodruff, and Jerome Cobble were tried together for charges
related to a heroin-distribution conspiracy and a conspiracy to
launder money. A jury convicted Stoddard and Woodruff
under 21 U.S.C. §§ 841(a)(1), 841(b)(1), and 846 for
conspiracy to distribute and possess with intent to distribute
heroin, and acquitted Jerome Cobble of the same charges. The
jury returned a guilty verdict for Cobble on a separate charge
of conspiracy to launder money in violation of 18 U.S.C.
§ 1956(h).
These prosecutions originated from an investigation the
Government began in 2012 that focused on a notorious drug
dealer, Jermaine Washington, who had recently been released
from prison. After employing traditional surveillance
techniques, the Government successfully applied for two
wiretaps on Washington’s cell phone. The evidence presented
at Appellants’ trial consisted, primarily, of conversations
recorded from the wiretaps and the testimony of Washington
interpreting the language in the conversations between
Washington and the three defendants. After the Appellants
were convicted, the District Court sentenced Stoddard and
Woodruff to mandatory-minimum sentences triggered by the
drug quantity that the jury had found to be attributable to the
conspiracy as a whole. Appellants assert that the District Court
committed multiple errors in ruling on pretrial motions, at trial,
and at sentencing.
3
For the reasons discussed below, we (1) affirm the District
Court’s denial of Appellants’ motions to suppress evidence
obtained as a result of the wiretaps because the District Court
did not abuse its discretion in finding that the Government had
met the “necessity” requirement; (2) affirm the District Court’s
denial of Stoddard’s and Woodruff’s motions for acquittal; (3)
affirm the District Court’s denial of Woodruff’s motion in
limine to exclude evidence of a prior conviction if Woodruff
had testified in his own defense; and (4) find no plain error in
the District Court’s jury instructions on the money-laundering
charge. But we (5) reverse the District Court’s denial of
Cobble’s motion for acquittal because the evidence was
insufficient to sustain his money-laundering conviction. We
also (6) vacate the sentences of Stoddard and Woodruff,
remand for resentencing, and hold that, in order for a defendant
to be sentenced based on a mandatory minimum triggered by a
certain quantity of drugs, a jury must find the drug quantity
attributable to the defendant on an individualized basis, not just
the drug quantity attributable to the conspiracy as a whole.
Finally, we reserve judgment on whether the District Court
properly applied the career-offender enhancement before
sentencing Woodruff, and instruct the District Court, on
remand, to make that assessment based on new briefing from
the parties and taking into account the intervening decision in
Beckles v. United States, 137 S. Ct. 886 (2017).
I.
In the spring of 2012, the D.C. Metropolitan Police
Department partnered with the Federal Bureau of Investigation
(“FBI”) to investigate the heroin-trafficking activities of
Jermaine Washington in the D.C. metro-area. Washington had
been released from prison in 2010. The Government used an
informant to make controlled drug-buys in Southeast D.C. and,
4
shortly thereafter, identified Washington as a potential source
of heroin. Based on an extensive affidavit by FBI Special
Agent Joshua Taylor, filed under seal, the District Court
granted the Government’s application for a wiretap on
Washington’s cell phone from July 16, 2012, through August
14, 2012. A second 30-day wiretap, also based on a sealed
affidavit, was authorized on August 16, 2012. The
Government also began surveilling Washington in the D.C.
metro-area. The Government recorded several phone calls
between Washington and Woodruff and between Washington
and Stoddard. In the course of its physical surveillance, the
Government observed Woodruff and Stoddard each meet with
Washington one time.
Jerome Cobble is Washington’s cousin. During the course
of the Government’s investigation, Cobble helped Washington
purchase two vehicles. After initial reluctance, Cobble agreed
to help Washington finance a Nissan Altima, and Cobble
purchased the car in his own name. In the summer of 2012,
Washington wrecked the Altima and discussed getting Cobble
to help him buy a Lexus SUV, again in Cobble’s name. On
July 23, 2012, Cobble traded in the wrecked Altima and
financed the purchase of the Lexus SUV from an auto dealer in
Virginia for $30,000, making a $3,700 cash down payment
from money Washington had won gambling in Atlantic City.
As with the Altima, Cobble financed the car in his name, but
the car would be Washington’s to use and possess. Shortly
after the purchase, the Lexus SUV was stolen.
The Government searched Washington’s apartment on
December 6, 2012, pursuant to a search warrant, and it
recovered 20.1 grams of heroin, a digital scale, and $17,850 in
cash. Washington agreed to cooperate, and on April 11, 2013,
he pleaded guilty to drug-distribution conspiracy charges, and
conspiracy to launder money and commit wire fraud.
5
A grand jury returned a superseding indictment charging
Calvin Stoddard, Jerome Cobble, and Sidney Woodruff with
conspiracy to distribute 100 grams or more of heroin in
violation of 21 U.S.C. §§ 841, 846, and aiding and abetting
under 18 U.S.C. § 2. The indictment also charged Cobble with
conspiracy to launder money and conspiracy to commit wire
fraud under 18 U.S.C. §§ 1956(h), 1349.
Before the trial proceedings began, Appellants filed
motions to suppress evidence obtained through the wiretaps on
Washington’s cell phone, including the recorded conversations
between Washington and each Appellant. Appellants argued
that the Government’s wiretap applications had not met the
necessity requirement under 18 U.S.C. § 2518. The District
Court denied the motions, ultimately concluding that the
Government had met the necessity requirement and that it had
shown in the wiretap application that other investigative
techniques were reasonably unlikely to succeed.
At a status conference the day before trial, the Government
informed the District Court that it was uncertain if it could
proceed because Washington, its star witness, was acting
strange and showing signs of reluctance to testify. After a
delay to administer a competency evaluation to Washington,
which he passed, the trial began.
At trial, the Government presented testimony of three law
enforcement officers who had participated in the investigation,
testimony from an expert in code words and methods used by
drug dealers, and testimony of alleged co-conspirator Sandra
Settles. Washington’s testimony provided the strongest
evidence against all three defendants. Washington interpreted
the conversations from wiretapped phone calls, which were
played for the jury.
6
Washington testified at trial about drug transactions with
Stoddard and Woodruff, and about Cobble’s role in helping
him purchase a vehicle. The Government presented evidence
consisting of audio recordings of conversations between
Washington and Stoddard and between Washington and
Woodruff, and Washington’s testimony interpreting statements
in those conversations. Some of this evidence included
statements by Appellants that suggest they were negotiating
prices and settling accounts from previous transactions with
Washington. See, e.g., A. 356-58 (Woodruff); A. 397-402
(Stoddard). For example, the Government played a
conversation in which Woodruff stated: “I got somebody
coming to town, man, that’s trying to get 40, man, but he going
to be here about 10:00 tonight . . . .” A. 363. Washington
testified that he understood Woodruff to mean that Woodruff
had a customer who “wanted to come and purchase 40 grams
of heroin.” A. 364. In another recorded conversation played
at trial, Stoddard said to Washington, “[i]nstead of trying to
grab for the extra two, I probably need just to leave that, you
know, just keep it,” which Washington testified was part of a
discussion between the two men about the cut of heroin
Stoddard was going to purchase from Washington and the
tolerance of different heroin users. A. 390-91. Another
conversation featured a discussion between Stoddard and
Washington in which the men appeared again to discuss the
discrepancies between, and preferences of, heroin-buyers.
During that conversation, Washington stated that
“[e]verybody’s clientele is different.” A. 394. Later in the
conversation, Stoddard noted that he “learn[ed] a lot” from
Washington. A. 395. Washington testified that, from 2011 to
2013, Woodruff purchased heroin from Washington “[o]ver ten
times,” A. 353, and that Stoddard purchased heroin from
Washington between two and four times. A. 378.
7
Washington also offered testimony against his cousin,
Jerome Cobble. Washington testified that Cobble helped him
purchase a Lexus SUV from a car dealer in Virginia, and that
Washington was dealing heroin during that time period and not
otherwise employed. A. 413-16. Cobble “put the [title of the]
vehicle in his name for [Washington] because at the time
[Washington] didn’t have a driver’s license.” A. 416.
Washington recalled that both he and Cobble went to the car
dealership together, and were in “the finance department” of
the dealership together when they purchased the vehicle. A.
418. Washington made the down-payment on the Lexus with
over $3,000 he had won placing a $10 bet at a casino in Atlantic
City. A. 416-17. Washington took possession of the Lexus
and kept it at his residence. A. 418-19. Washington and
Cobble planned to make payments on the vehicle from
Cobble’s bank account, into which Washington would make
monthly deposits to cover the payment. A. 418-20. The Lexus
was stolen before any payments were made, but Washington
testified that he may have used the Lexus to sell heroin during
the short time he had the vehicle. A. 419. The Government
also played a recorded conversation between Cobble and
Washington in which they discussed buying some marijuana.
A. 421-22. In that same conversation, Washington told Cobble
about Washington’s attempt to purchase a gun and some
bullets. A. 422-24.
At various times during his direct and cross examinations,
Washington behaved erratically and made statements
suggesting his unreliability as a witness. For example, he
stated that “[i]f somebody needed a false statement, and they
was trying to pay some money for it, I sell it to them.” A. 486.
He repeatedly suggested he would “not remember” anything
that was not written down or recorded. See, e.g., A. 495. His
emotional tumult was on display as well. At its apex, he had to
be removed from the courtroom when questioned about his
8
relationship with his cousin, Cobble. A. 507-08. After this
outburst, all three defendants moved for a mistrial, which the
District Court denied.
The lawyers for each defendant rested their cases as soon
as the Government had presented its case-in-chief. The
defendants each moved for judgments of acquittal. The District
Court denied Woodruff’s and Stoddard’s motions from the
bench and reserved ruling on Cobble’s motion. After further
briefing, the District Court denied Cobble’s motion for
acquittal as well. In denying Cobble’s motion for acquittal, the
District Court noted that Cobble had argued only that there was
insufficient evidence of “concealment money laundering” but
that the Government had charged him with both concealment
and promotional money laundering. A. 129. In holding that
the evidence was sufficient to support a promotional money-
laundering theory, the District Court relied on evidence that
Washington had “on various occasions used a vehicle to deliver
narcotics to buyers . . . along with evidence of Cobble’s close
relationship with Washington . . . .” A. 129-30.
The Government had initially proposed individual verdict
forms that would have required the jury to determine the
quantity of drugs attributable to each defendant. But the
District Court, while recognizing that “there’s a [circuit] split”
on the issue, decided to use a verdict form without
individualized drug-quantity determinations. A. 685. The jury
found Woodruff and Stoddard guilty of the drug-conspiracy
charge and found that the conspiracy, as a whole, involved 100
grams or more of heroin. The jury found Cobble not guilty of
the drug conspiracy charge but guilty of the money laundering
charge.
Woodruff and Stoddard each moved for a new trial
because, they contended, the jury should have found the
9
amount of drugs attributable to each of them individually rather
than the amount attributable to the conspiracy as a whole. The
Government opposed the motion but agreed with the
defendants that the jury should have been given a verdict form
that instructed the jury to find an amount attributable to each
defendant, and therefore that the District Court should sentence
the defendants based on an indeterminate quantity of heroin,
not the 100 grams the jury had found were attributable to the
conspiracy as a whole. The District Court denied these motions
and ruled that there was no need for individual findings of the
drug quantity for each defendant. The District Court explained
its reasoning:
The fact that subjects the defendants to the
enhanced statutory maximum of 40 years is that
the conspiracy involved 100 grams or more of
heroin. That fact was submitted to the jury and
found by the jury beyond a reasonable doubt.
. . . Apprendi and Alleyne did not address
whether a jury must find that the amount of
drugs that triggers a statutory mandatory
minimum penalty in a narcotics conspiracy is
attributable to the conduct of a convicted
conspirator – or is reasonably foreseeable by
him or her as the amount involved in the
conspiracy – before that amount’s penalties are
triggered for that conspirator. The circuits have
split on how . . . to properly resolve this
question. . . . The D.C. Circuit has not resolved
this question either. . . . The instructions
provided to the jury here and the corresponding
verdict form are consistent with the view that
the jury need determine only the amount of
drugs attributable to the entire conspiracy, but
not to the individual defendants.
10
A. 109-14 (footnotes omitted).
Woodruff and Stoddard raised the issue again at
sentencing, arguing that the District Court should decline to
impose a five-year mandatory minimum or a forty-year
statutory maximum, both of which are applicable when a
defendant conspires to distribute 100 grams or more of heroin
under 21 U.S.C. § 841(b)(1)(B). The Government agreed with
this assessment in its initial sentencing memorandum. The
District Court overruled the objections.
Woodruff also objected to other aspects of his PSR,
including his career-offender designation resulting from a 1984
armed-robbery conviction and a 1991 drug-distribution
conviction in Maryland. The PSR recommended applying a
career-offender enhancement under USSG § 4B1.1 with an
offense level of 34 and a criminal history category of VI, which
would have resulted in a guidelines range of 262 to 327 months.
Woodruff objected, but the District Court did not rule on the
objection, finding instead that it would not matter because
“[b]oth parties seek a sentence below the guidelines that would
apply . . . .” A. 732-33, 736.
The District Court determined that a guidelines range of
262 to 327 months applied to Woodruff and departed
downward for a sentence of 80 months, followed by 48 months
of supervised release. The District Court noted, “[f]or the
record, [it] would have imposed this same sentence if no five-
year mandatory minimum had applied here.” A. 741. The
District Court gave Stoddard a 60-month sentence, which it
believed to be the appropriate mandatory minimum, along with
48 months of supervised release. Cobble was sentenced to 24
months of probation.
11
II.
All Appellants challenge the District Court’s denial of
their motions to suppress the evidence gathered as a result of
the wiretaps, and the District Court’s denial of each Appellant’s
motion for acquittal. In addition, Cobble challenges the
District Court’s jury instructions on money laundering;
Stoddard and Woodruff challenge their sentences because the
jury never found that each of them was individually responsible
for over 100 grams of heroin; Woodruff challenges the District
Court’s ruling on a motion in limine that, if he were to testify
in his own defense, the Government would be able to introduce
his 1984 armed-robbery conviction to impeach him; and
Woodruff also challenges the District Court’s use of the 1984
armed-robbery conviction as a basis to apply the career-
offender sentencing enhancement.
A.
First, Appellants contend that the District Court erred in
denying their motions to suppress evidence obtained as a result
of the wiretaps. In evaluating this challenge, “we review the
district court’s legal conclusions de novo and its factual
findings for clear error.” United States v. Eiland, 738 F.3d 338,
347 (D.C. Cir. 2013). “A reviewing court gives deference to
the authorizing court’s determinations of probable cause and
necessity,” but “[w]e ‘do not typically give a second layer of
deference to a district court’s assessment’ of the authorizing
court’s determinations.” Id. (quoting United States v. Glover,
681 F.3d 411, 420 (D.C. Cir. 2012) (alteration omitted)). We
review the initial necessity determination for abuse of
discretion. Glover, 681 F.3d at 419-20.
The District Court did not err in denying Appellants’
motions to suppress.
12
Under 18 U.S.C. § 2518(1)(c), an application for a wiretap
must include, among other things, “a full and complete
statement as to whether or not other investigative procedures
have been tried and failed or why they reasonably appear to be
unlikely to succeed if tried or to be too dangerous.” This
“necessity requirement” is “a keystone of congressional
regulation of electronic eavesdropping.” United States v.
Williams, 580 F.2d 578, 587-88 (D.C. Cir. 1978). “Congress
created the necessity requirement to ensure that ‘wiretapping is
not resorted to in situations where traditional investigative
techniques would suffice to expose the crime.’” United States
v. Carter, 449 F.3d 1287, 1293 (D.C. Cir. 2006) (quoting
United States v. Kahn, 415 U.S. 143, 153 n.12 (1974)). “[A]
court may authorize the wiretap of the phone of a member of
an operation if traditional investigative techniques have proved
inadequate to reveal the operation’s full nature and scope.”
United States v. Sobamowo, 892 F.2d 90, 93 (D.C. Cir. 1989)
(quotation marks omitted). Rather than simply making
generalized assertions about the difficulty of drug conspiracies
generally, “[t]he affidavit [in support of the application] must
show with specificity why in this particular investigation
ordinary means of investigation will fail.” United States v.
Robinson, 698 F.2d 448, 453 (D.C. Cir. 1983).
Appellants argue that the order authorizing the wiretap
“contains no actual analysis of necessity.” Appellants’ Br. 32.
Because the District Court “merely parroted the statutory
language,” Appellants claim there was never “any specific
showing that a wiretap was necessary.” Appellants’ Br. 32-33.
They also claim that the affidavit by Special Agent Taylor was
defective because he “used vague and boilerplate language
about drug conspiracy investigations in general” to justify the
wiretap. Id. at 33 (emphasis in original).
13
None of Appellants’ arguments has merit. In fact, the
authorizing court based its wiretap authorization on a finding
of probable cause that Washington would be communicating
via his cell phone concerning “the nature, scope, extent and
methods of operation of the narcotics trafficking activities in
which the targeted subjects and others as yet unknown . . . are
engaged.” A. 51. Relying on Special Agent Taylor’s sealed
affidavit, the District Court found that it had been “established
that normal investigative procedures have been tried and have
failed, reasonably appear to be unlikely to succeed if tried, or
are too dangerous to employ.” A. 52. Appellants ignore the
significant portion of Special Agent Taylor’s wiretap
application devoted to the specific information collected and
investigative techniques employed up until the point of the
wiretap application. In addition to attesting to his general
knowledge about drug-dealing conspiracies, Special Agent
Taylor also noted that the investigative techniques used had
resulted in significant intelligence establishing that
Washington was using his phone to conduct drug deals.
Special Agent Taylor submitted a detailed analysis describing
the extent of the investigation and the techniques used, offering
a reasonable explanation as to why each one was becoming less
useful and a wiretap was needed.
Necessity does not require the Government to show that
“every other imaginable method of investigation has been
unsuccessfully attempted[;] [r]ather, it is sufficient that the
government show that other techniques are impractical under
the circumstances and that it would be unreasonable to require”
the Government to pursue all of those avenues. Williams, 580
F.2d at 588 (quotation marks omitted). The Government made
that showing here, providing a detailed analysis of the gaps left
by traditional investigative techniques and the necessity of a
wiretap in “this particular investigation.” See Robinson, 698
14
F.2d at 453. 1 We affirm the District Court’s denial of
Appellants’ motions to suppress evidence obtained as a result
of the wiretaps.
B.
This Court reviews de novo the denial of a motion for
acquittal, viewing the evidence in the light most favorable to
the Government. United States v. Kayode, 254 F.3d 204, 212
(D.C. Cir. 2001). Cobble argues that there was insufficient
evidence to sustain his money-laundering conspiracy
conviction, and that the District Court erred in denying his
motion for acquittal. 2 Title 18 section 1956 is violated when a
person,
1
Appellants argue that the recordings from the second wiretap
should have been suppressed as illegal fruit of the first wiretap, and
alternatively, that the information gained from the first wiretap made
the wiretap extension unnecessary. Appellants’ Br. 37-39. Both of
these arguments fail. The first wiretap was not unlawful, and the
Government’s request for an extension was justified on the basis that
the Government was still attempting to determine all participants in
the conspiracy and the supplier of the drugs involved, which suffices
to satisfy the necessity requirement for the second wiretap.
2
In Appellants’ opening brief, Cobble also challenged the District
Court’s money-laundering instructions based on the District Court’s
omission of an instruction about the proper definition of “profits.”
Appellants’ Br. 46-50. Cobble’s arguments were based on the
Supreme Court’s decision in Santos v. United States, 553 U.S. 507
(2008). Appellants overlook, however, that Congress amended the
Act in 2009 to respond to Santos and make clear that “proceeds”
includes “gross receipts” under the Statute. See Fraud Enforcement
and Recovery Act of 2009, Pub. L. No. 111-21, § 2(f)(1), 123 Stat.
1617, 1618 (2009). Presumably in recognition of Congressional
negation of Santos’s statutory holding, Appellants abandoned this
argument in their Reply Brief. The District Court did not err; it
15
knowing that the property involved in a
financial transaction represents the proceeds of
some form of unlawful activity, conducts or
attempts to conduct such a financial transaction
which in fact involves the proceeds of specified
unlawful activity (A) with the intent to promote
the carrying on of specified unlawful activity
. . . or (B) knowing that the transaction is
designed in whole or in part . . . to conceal or
disguise the nature, the location, the source, the
ownership, or the control of the proceeds of
specified unlawful activity[.]
18 U.S.C. § 1956(a)(1)(A)(i), (a)(1)(B)(i). Cobble was
charged with violating both prongs of § 1956(a)(1) –
promotional money laundering under subsection (A) and
concealment money laundering under subsection (B). The
Government’s trial strategy focused on the concealment theory,
but the District Court ultimately concluded that the evidence
was sufficient to sustain Cobble’s conviction under the
promotional theory. 3
The money-laundering statute “prohibits specified
transfers of money derived from unlawful activities.”
Regalado Cuellar v. United States, 553 U.S. 550, 557 (2008).
The concealment prong of § 1956(a)(1) covers “the conversion
instructed the jury in a manner that accurately reflected the law as
Congress amended it in 2009.
3
Although Appellants’ briefing focuses on concealment money
laundering, Cobble’s challenge to the District Court’s holding that
the evidence was sufficient under the promotional money-laundering
theory is properly before this Court. The Government never argued
forfeiture to challenge the sufficiency of the evidence below, nor did
they argue that this argument had been forfeited on appeal.
16
of cash into goods and services as a way of concealing or
disguising the illegal wellspring of the cash.” United States v.
Law, 528 F.3d 888, 895 (D.C. Cir. 2008) (quotation marks
omitted); see also United States v. Adefehinti, 510 F.3d 319,
322-23 (D.C. Cir. 2007) (reversing money laundering
convictions where the Government had shown only evidence
that the defendants used ill-gotten gains in the financial
transaction, with no evidence that the defendants had attempted
to “hide the provenance of the funds involved”) (quotation
marks and citations omitted). Thus, a person violates the
concealment prong when he or she engages in a transaction
“knowing that the transaction” was “designed in whole or in
part to conceal or disguise” the proceeds. 18 U.S.C.
§ 1956(a)(1)(B).
In Law, we overturned a concealment money-laundering
conviction of a defendant who had taken over the mortgage of
a small apartment building from a drug dealer, while the
defendant also maintained an apartment in the building out of
which he dealt drugs. 528 F.3d at 896-98. The defendant
argued that the mortgage payments were not designed to
conceal the source of any funds, but simply to earn money by
managing the property, collecting rents, and paying the
mortgage. We reversed the conviction, stating that “when
faced with an innocent explanation sufficiently supported by
the evidence to create a reasonable doubt about the defendant’s
guilt, the Government’s burden is to present evidence sufficient
to dispel that doubt.” Id. at 896; see also United States v. Hall,
434 F.3d 42, 50 (1st Cir. 2006); United States v. Garcia-
Emanuel, 14 F.3d 1469, 1474 (10th Cir. 1994) (“[T]ransactions
[that] are engaged in for present personal benefit, and not to
create the appearance of legitimate wealth, . . . do not violate
the money laundering statute.”). The Government’s evidence
to rebut the innocent explanation – primarily pointing to the
fact that the defendant paid the mortgage in the owner’s name
17
– was insufficient to demonstrate that the defendant’s payments
were designed to conceal the source of the funds. Law, 528
F.3d at 896.
The promotion prong of § 1956(a)(1) “is aimed . . . only at
transactions which funnel ill-gotten gains directly back into the
criminal venture.” United States v. Miles, 360 F.3d 472, 479
(5th Cir. 2004). Thus, to violate the promotion prong, a
defendant must have intended to promote the illegal activity by
engaging in the financial transaction or conspiring to do so. In
general, intent to promote the underlying illegal activity can be
demonstrated by facts that show the defendant benefited from,
or had extensive knowledge about, the underlying illegal
activity he was promoting. See, e.g., United States v. Trejo,
610 F.3d 308, 314-16 (5th Cir. 2010) (discussing the “nature of
proof” in promotional money laundering cases and noting that
“courts have often relied on proof that the defendant was aware
of the inner workings of and/or extensively involved in the drug
organization . . . .”); id. at 315 n.8 (collecting cases); see also
Adefehinti, 510 F.3d at 322-23 (collecting cases and discussing
what kind of evidence shows indicia of intent to commit
money-laundering violations).
Based on the trial record, we conclude that the evidence
was insufficient to support Cobble’s conviction for money
laundering. We assume without deciding that a reasonable
factfinder could infer that Cobble knew the money Washington
planned to pay on the Lexus note was likely to come from drug-
trafficking proceeds because the two men were close, and there
was sufficient evidence to show that Cobble knew that
Washington was a drug dealer. Thus, we analyze whether the
evidence was sufficient to demonstrate that Cobble entered a
conspiracy either knowing that the transaction was designed to
“conceal or disguise” the origin of the drug-trafficking
18
proceeds or with the specific intent to “promote” Washington’s
drug-trafficking.
Cobble’s conviction cannot be sustained under a
concealment theory. The evidence was insufficient for a
rational trier of fact to find that Cobble violated
§ 1956(a)(1)(B)(i), because no evidence showed that the
transaction was designed to conceal the source of the funds,
and Cobble’s innocent explanation for engaging in the
transaction – helping his cousin purchase a car for personal use
– was never challenged by the Government through the
presentation of evidence. See Law, 528 F.3d at 896.
Apparently, the District Court agreed with this assessment
because, after struggling to find any evidence that Cobble
“joined in an agreement with any intent to promote drug
dealing” or conceal the source of funds, A. 715, it ruled that
evidence was sufficient to sustain the verdict under a
promotional money-laundering theory. A. 129.
The Government unpersuasively attempts to distinguish
Law by arguing that sufficient evidence was presented at trial
to sustain Cobble’s conviction, Appellee’s Br. 55-56, but the
Government fails to point to any evidence that the transaction
was designed to conceal the source of the funds (much less that
Cobble had knowledge of any such design). This is because
there was no such evidence. Cobble and Washington openly
went to the dealership and purchased the car together, both
sitting in the finance department as they made arrangements for
Cobble to purchase the Lexus in his name and for Washington
to take possession of the vehicle. And after the purchase,
Washington took possession of the Lexus, keeping it at his
house until it was stolen shortly thereafter. Nothing about the
transaction to purchase the Lexus SUV shows any indicia of a
design to conceal the “nature, the location, the source, the
19
ownership, or the control” of the proceeds used to purchase the
Lexus.
The evidence presented at trial was also insufficient to
sustain Cobble’s conviction under the Statute’s promotion
prong. The Government had to prove beyond a reasonable
doubt that Cobble intended to promote Washington’s drug
dealing in order to sustain a conviction under
§ 1956(a)(1)(A)(i). See Trejo, 610 F.3d at 314 (“It is not
enough to show that a money launderer’s actions resulted in
promoting the carrying on of specified unlawful activity. Nor
may the Government rest on proof that the defendant engaged
in ‘knowing promotion’ of the unlawful activity. Instead, there
must be evidence of intentional promotion.”) (internal citations
omitted, emphasis in original). Cobble was acquitted of
charges that he was involved in the conspiracy to distribute
heroin. And, as Appellants point out, “the Government
introduced no evidence that Cobble ever aided Washington,
held drugs or money for him, accompanied Washington to any
drug transactions, or was aware of exactly how his cousin
distributed drugs, including whether Washington used a car in
any drug activities.” Appellants’ Reply Br. 17-18.
The Government’s lack of evidence is particularly
important because Cobble offered an innocent explanation for
the purchase of the Lexus: He helped his cousin buy the SUV
because his cousin needed a car but had bad credit and no
driver’s license. A. 530-31. As the Court explained in Law:
[W]hen faced with an innocent explanation
sufficiently supported by the evidence to create
a reasonable doubt about the defendant’s guilt,
the Government’s burden is to present evidence
sufficient to dispel that doubt. The need for
evidence that excludes such an innocent
20
explanation is especially important in relation to
a charge of money laundering because of the
fine line between laundering and merely
spending illicit funds.
528 F.3d at 896. This principle from Law applies with just as
much force in the context of promotional money laundering,
and the Government’s presentation of evidence to prove
Cobble’s intent to promote the illegal activity was insufficient.
Washington testified that Cobble had nothing to do with
his heroin-dealing operation, and the jury apparently believed
him. The Government proffered no evidence at trial to
overcome its own witness’s testimony that there was an
innocent explanation for Cobble’s assistance in purchasing the
Lexus SUV.
At oral argument, counsel for the Government contended
that there was a “mountain of evidence” showing that Cobble’s
knowledge about the drug-conspiracy was so extensive that it
could demonstrate to the jury Cobble’s intent. Oral Arg.
Recording at 31:19-31:30; see also id. at 30:00-32:00. But that
“mountain” was a molehill. The only evidence the
Government could point to merely showed that Cobble and
Washington were close, that they talked on the phone at one
point about Washington purchasing a gun and bullets and
buying a relatively small amount of marijuana together, A.
421-23, 428-29, and that Washington told Cobble that he was
doing well enough financially to afford the auto payments.
None of that evidence suffices to demonstrate that Cobble even
knew about the heroin-trafficking operation, much less that he
intended to promote Washington’s heroin dealing.
This evidentiary showing does not meet the Statute’s
requirement that the Government put on evidence sufficient to
21
prove beyond a reasonable doubt that Cobble conducted “a
financial transaction . . . with the intent to promote the carrying
on of specified unlawful activity.” Whatever Cobble might
have known about Washington, Cobble offered the innocent
explanation that he purchased the car in his name to help out
his cousin who had bad credit and no driver’s license. The
Government never offered evidence to rebut Cobble’s
explanation, and not nearly enough evidence was introduced to
support the Government’s theory that Cobble intended to
promote Washington’s illegal activities. We therefore reverse
Cobble’s conviction.
C.
In order to convict Woodruff and Stoddard of a drug
conspiracy, the Government had to prove beyond a reasonable
doubt that the two men had “knowingly entered into a
conspiracy with the specific intent to further the objective of
distributing narcotics.” United States v. Gaskins, 690 F.3d 569,
582 (D.C. Cir. 2012). Appellants argue that the evidence below
was insufficient to sustain their convictions for entering a
conspiracy to traffic heroin. Reviewing the evidence de novo
and in the light most favorable to the Government, the jury’s
guilty verdict rested upon sufficient evidence to sustain the
convictions.
Appellants’ core argument is that Washington’s testimony
– which, along with the recorded conversations picked up from
the wiretap on Washington’s cell phone, was the primary
evidence against them – was unreliable and that, without it, no
reasonable jury could find Appellants guilty. Appellants point
out that the Government presented no direct evidence linking
Stoddard or Woodruff to distribution of heroin. In addition to
Washington’s testimony and the recorded conversations, the
evidence included testimony from the Government’s
22
cooperating witness – Sandra Settles – and two FBI agents who
had listened to the wiretaps and been involved in the
investigation. Settles testified that she did not interact with the
Woodruff or Stoddard, and the two FBI agents had never seen
them with heroin. See A. 297; 200-52; 303-12; 533-64.
Appellants also point out that, even after Woodruff and
Stoddard’s arrests, no heroin or drug paraphernalia was found
at their residences. Appellants’ Br. 51. Thus, according to
Appellants, the primary evidence against them is Washington’s
unreliable testimony. Id. at 52-53 (citing Jackson v. United
States, 353 F.2d 862, 867 (D.C. Cir 1965) (“In some cases []
testimony . . . will simply be too weak and to[o] incredible,
under the circumstances, to accept.”)).
Appellants are correct that Washington showed signs that
he lacked credibility as a witness. Appellants point to
numerous exchanges that call into question Washington’s
credibility. See, e.g., A. 483; 486; 492; 495; 496. Appellants
are also correct that the only evidence supporting Woodruff’s
and Stoddard’s convictions for entering the conspiracy to
distribute heroin are the recordings of the wire intercepts and
Washington’s testimony interpreting those conversations. No
physical evidence was recovered linking Woodruff and
Stoddard to heroin, no law enforcement agents ever saw
Woodruff or Stoddard with heroin, and Settles never saw
Woodruff or Stoddard with Washington. See A. 297-98.
However, despite Washington’s unreliability on the stand,
the recorded conversations between Washington and Woodruff
and Washington and Stoddard are not as ambiguous as
Appellants suggest. Between those recordings and the
testimony of Washington, however flawed he may have been
as a witness, there was sufficient evidence, viewed in a light
favorable to the Government, for a reasonable juror to convict
23
Woodruff and Stoddard of entering a conspiracy to distribute
heroin.
The Government presented credible testimony about
intercepted wire communications between Washington and
Woodruff, A. 356-76, and between Washington and Stoddard,
A. 384-407, that consists of the two Appellants negotiating
prices with Washington and discussing matters that strongly
suggest they were distributing the heroin they purchased from
Washington. See, e.g., A. 363 (statement on wire intercept
apparently by Woodruff, stating “I got somebody coming to
town, man, that’s trying to get 40, man, but he going be here
about 10:00 tonight . . . .”); A. 390 (statement on wire intercept
by Stoddard, stating “Instead of trying to grab for the extra two,
I probably need just to leave that, you know, just keep it,”
apparently discussing the cut of the heroin he was to purchase
from Washington); A. 395 (statement on wire intercept
apparently by Stoddard, stating to Washington: “Whether you
know it or not . . . I learn a lot [] from you[.]”); A. 397-402
(recordings of wire intercept played that appeared to be
conversations between Washington and Stoddard negotiating
prices for heroin and discussing how much heroin Stoddard
would need for a few weeks).
As the Government correctly points out, this “Court does
not revisit the jury’s determination to credit a witness.”
Appellee’s Br. 60 (citing United States v. Jenkins, 928 F.2d
1175, 1178 (D.C. Cir. 1991)). And there was sufficient
evidence presented to the jury in the form of recorded
conversations, and Washington’s testimony interpreting those
conversations, to sustain Woodruff’s and Stoddard’s
convictions. We affirm the District Court’s denial of their
motions for acquittal.
24
D.
We review the District Court’s decision to admit or
exclude evidence for abuse of discretion. United States v.
Pettiford, 517 F.3d 584, 588 (D.C. Cir. 2008). Appellants
argue that the District Court abused its discretion by ruling
under Federal Rule of Evidence 609 that, if Woodruff testified
in his own defense, the Government would be allowed to
impeach him based on his D.C. conviction for armed robbery
in 1984. Appellants’ Br. 55-66.
Woodruff chose not to testify, however, so his argument
runs squarely into Luce v. United States, 469 U.S. 38 (1984),
which held that “to raise and preserve for review the claim of
improper impeachment with a prior conviction, a defendant
must testify.” Id. at 43. We applied the reasoning of Luce in
United States v. Coumaris, 399 F.3d 343 (D.C. Cir. 2005), in
an analogous circumstance, and we apply it again here.
Although the Government failed to rely on Luce in its brief and
thus forfeited the argument, we exercise our discretion to reach
the issue because it is “logically ‘antecedent to and ultimately
dispositive of [a] dispute before [us]” – whether any error in
the District Court’s ruling on the motion in limine was
harmless. See Crocker v. Piedmont Aviation, Inc., 49 F.3d 735,
740 (D.C. Cir. 1995) (quoting U.S. Nat’l Bank of Oregon v.
Indep. Ins. Agents of Am., 508 U.S. 439, 447 (1993)).
E.
Woodruff and Stoddard challenge their sentences on the
basis that the District Court improperly sentenced each of them
to the mandatory minimum for entering a conspiracy to
distribute 100 grams or more of heroin, even though the jury
did not make individualized findings as to the amount of heroin
attributable to each of them. The jury below was required to
25
determine only whether the defendants had conspired to
distribute some amount of a substance containing heroin, and
whether the amount of heroin ultimately distributed in
connection with the conspiracy exceeded 100 grams.
The District Court instructed the jury that “the government
must show the defendant’s membership in the narcotics
conspiracy,” but “[t]he defendant need not know . . . all of the
details of the narcotics conspiracy, nor the means by which its
purposes were to be accomplished.” Trial Tr., 35, No. 13-CR-
200, June 5, 2015 (AM). “It is necessary [] that the government
prove beyond a reasonable doubt that the defendant was aware
of the common purpose, had knowledge that the narcotics
conspiracy existed, and was a willing participant with the intent
to advance the purpose of the narcotics conspiracy.” Id.
Further, “[t]he specific amount of any controlled substance
involved is not an element of the offense of conspiracy.” Id. at
36. If the jury found that each defendant had entered a
conspiracy to distribute a controlled substance containing
heroin, they were instructed to “ask [them]selves whether the
government proved that the amount of the mixture or substance
containing heroin that was the subject of the conspiracy was
100 grams or more.” Id.; see also A. 92-93 (jury verdict form).
Thus, the jury was not required to find that each defendant was
individually responsible for entering a conspiracy to distribute
100 grams or more of heroin (i.e., that it was “reasonably
foreseeable” to each defendant that 100 grams or more would
be distributed within the scope of the conspiracy).
The circuits are split on whether an individualized jury
finding as to the quantity of drugs attributable to (i.e.,
foreseeable by) an individual defendant is required to trigger a
mandatory minimum, or if it is sufficient for the jury to find
that the conspiracy as a whole resulted in distribution of the
mandatory-minimum-triggering quantity. The difference is
26
subtle but important. In Law, we suggested a preference for the
former approach. Here, that would require the jury to find that
each defendant entered the conspiracy to distribute not just an
indeterminate amount of heroin that turned out to be over 100
grams, but that the 100-gram quantity was reasonably
foreseeable, or within the scope of the conspiracy entered by a
particular defendant. Now, based on the cases and principles
discussed below, we adopt the individualized approach, vacate
Stoddard’s and Woodruff’s sentences, and remand for
resentencing.
Whether the mandatory-minimum sentence for a
defendant who traffics in 100 grams or more of heroin applies
without an individualized finding as to the quantity for which
the defendant is responsible is a question of law that we review
de novo. See 21 U.S.C. § 841(b)(1)(B); see also United States
v. Cook, 594 F.3d 883, 886 (D.C. Cir. 2010).
The Supreme Court has held that a jury must find any facts
“that increase the prescribed range of penalties to which a
criminal defendant is exposed,” Apprendi v. New Jersey, 530
U.S. 466, 490 (2000), and that “[f]acts that increase the
mandatory minimum sentence are [] elements and must be
submitted to the jury and found beyond a reasonable doubt.”
Alleyne v. United States, 570 U.S. 99, 108 (2013). A district
court thus errs when it applies a mandatory minimum based on
a fact that was not found by the jury. Recently, the Supreme
Court applied these principles to drug-conspiracy convictions
under § 841(b)(1), requiring – before imposing the statutory
mandatory minimum triggered when death results from the
distributed drug – that a jury find the fact of resultant death that
triggers the mandatory minimum. Burrage v. United States,
134 S. Ct. 881 (2014). “Because the ‘death results’
enhancement increase[s] the minimum and maximum
sentences . . . , it is an element that must be submitted to the
27
jury and found beyond a reasonable doubt.” Id. at 887; see also
id. at 887 n.3 (noting that a drug-conspiracy charge under
§ 841(a)(1) is “thus a lesser-included offense of the [charged]
crime” of drug-conspiracy and resultant death). These
principles apply just the same to the fact of a mandatory-
minimum drug quantity.
The question remains “whether it is the individualized
drug quantity that is a fact that increases the mandatory
minimum sentence.” United States v. Pizarro, 772 F.3d 284,
292 (1st Cir. 2014) (quotation marks omitted). Or whether, as
the District Court found, the amount of drugs attributable to the
conspiracy as a whole can be the fact which triggers the
mandatory minimum for an individual defendant.
The circuits are split on this issue. The First, Fourth, Fifth,
and Ninth Circuits have adopted the individualized approach.
See United States v. Haines, 803 F.3d 713, 738-42 (5th Cir.
2015); United States v. Rangel, 781 F.3d 736, 742-43 (4th Cir.
2015) (citing United States v. Collins, 415 F.3d 304 (4th Cir.
2005)); Pizarro, 772 F.3d at 292-94; United States v. Banuelos,
322 F.3d 700, 704-06 (9th Cir. 2003). The Third and Seventh
Circuits have explicitly adopted the conspiracy-wide approach.
See, e.g., United States v. Phillips, 349 F.3d 138, 141-43 (3d
Cir. 2003), vacated on other grounds, Barbour v. United States,
543 U.S. 1102 (2005); United States v. Knight, 342 F.3d 697,
709-12 (7th Cir. 2003).
Although some circuits have used the conspiracy-wide
approach, it has been called into question by Alleyne and
subsequent cases from those circuits. Notably, the circuits to
adopt the conspiracy-wide approach did so before Alleyne was
decided in 2013, while all circuits to explicitly address the issue
in Alleyne’s wake have adopted or followed the individualized
approach. The circuits that earlier adopted the conspiracy-wide
28
approach have, at times, failed to grapple with it in subsequent
published and unpublished cases decided after Alleyne.
Two circuits that initially adopted the conspiracy-wide
approach have recently questioned whether that approach is the
correct one in a post-Alleyne world. For example, the Sixth
Circuit appeared to adopt the conspiracy-wide approach in
United States v. Robinson, 547 F.3d 632 (6th Cir. 2008), but
later panels questioned whether it was consistent with earlier
Sixth Circuit case law. See United States v. Young, 847 F.3d
328, 366-67 (6th Cir. 2017) (finding that the defendant’s
sentence could be upheld under either approach, and noting that
“there is no need for us to reconcile these [conflicting] cases at
this time”); see also United States v. Gibson, No. 15-6122,
2016 WL 6839156 (6th Cir. Nov. 21, 2016), vacated, 854 F.3d
367 (6th Cir. 2017) (en banc). In Gibson, the panel reluctantly
applied Robinson, and the full court took the case en banc,
ultimately dividing equally, resulting in a reinstatement of the
district court’s sentence based on the conspiracy-wide
approach. United States v. Gibson, 874 F.3d 544 (6th Cir.
2017) (en banc).
Similarly, the Tenth Circuit held in United States v. Stiger,
413 F.3d 1185 (10th Cir. 2005), that “[t]he jury is not required
to make individualized findings as to each coconspirator
because the sentencing judge’s findings do not, because they
cannot, have the effect of increasing an individual defendant’s
exposure beyond the statutory maximum justified by the jury’s
guilty verdict.” Id. at 1193 (quotation marks omitted); see also
id. at 1192 (recognizing that “the judge lawfully may determine
the drug quantity attributable to [each] defendant and sentence
him accordingly (so long as the sentence falls within the
statutory maximum made applicable by the jury’s conspiracy-
wide drug quantity determination)”) (internal citation and
quotation marks omitted)). But recently, the Tenth Circuit
29
called Stiger into question in United States v. Ellis, 868 F.3d
1155, 1170 & n.13 (10th Cir. 2017) (“[A] defendant can be held
accountable for that drug quantity which was within the scope
of the agreement and reasonably foreseeable to him”) (quoting
United States v. Dewberry, 790 F.3d 1022, 1030 (10th Cir.
2015) (quotation marks omitted)). The reason is simple:
Alleyne undercut the rationale put forth in Stiger for adopting
the conspiracy-wide approach because, after Alleyne, it was no
longer the case that a judge could “lawfully” determine a fact
that would increase a defendant’s mandatory-minimum
sentence.
Even in the Third and Seventh Circuits, recent cases call
into question whether the earlier cases adopting the conspiracy-
wide approach are still being followed. See, e.g., United States
v. Cruse, 805 F.3d 795, 817-18 (7th Cir. 2015) (holding that
the failure to give the jury a Pinkerton instruction as to drug
quantity did not affect the defendant’s substantial rights, but
noting that, if it had, “the remedy for the error would be
resentencing under the default drug-conspiracy penalty
provision”); United States v. Miller, 645 Fed. App’x 211, 218
(3d Cir. April 1, 2016) (finding error because “the jury did not
determine [a drug quantity] directly attributable” to the
individual defendant, but holding that the error was harmless).
We adopt the individualized approach to drug-quantity
determinations that trigger an individual defendant’s
mandatory minimum sentence. It is a core principle of
conspiratorial liability that a co-conspirator may be held liable
for acts committed by co-conspirators during the course of the
conspiracy only when those acts are “in furtherance of the
conspiracy” and “reasonably foresee[able]” to the defendant.
Pinkerton v. United States, 328 U.S. 640, 647-48 (1946); see
also United States v. McGill, 815 F.3d 846, 917 (D.C. Cir.
2016). “Reasonable foreseeability” shapes the outer bounds of
30
co-conspirator liability, and it applies to drug quantities that
trigger enhanced penalties just the same as it applies to other
acts committed by co-conspirators. Cf. Burrage, 134 S. Ct. at
887.
This result follows naturally from the rationale behind our
decision in Law, which was only strengthened by the Supreme
Court’s subsequent decisions in Alleyne and Burrage. In Law,
the defendant had been sentenced based on a jury finding of the
quantity of drugs involved in the conspiracy as a whole. Law
argued that he could be sentenced only based on the quantity
of drugs involved in the largest of any single transaction that
occurred within the conspiracy, rather than the aggregate drug
quantity of all of the transactions that occurred during the
conspiracy. Law, 528 F.3d at 906. Under plain error review,
we rejected Law’s argument because, “a single agreement to
commit several crimes constitutes one conspiracy.” Id.
(quotation marks omitted). Thus, “a single violation of the
conspiracy statute encompasses all of the crimes reasonably
foreseeable within that conspiracy.” Id. So we held that “a
defendant convicted of conspiracy to deal drugs, in violation of
§ 846, must be sentenced, under § 841(b), for the quantity of
drugs the jury attributes to him as a reasonably foreseeable
part of the conspiracy.” Id. (emphasis added). 4 Although we
did not directly confront the issue before us now in Law, see
United States v. Garcia, 757 F.3d 315, 321 (D.C. Cir. 2014),
4
We sustained Law’s conviction against a sufficiency challenge as
well, because of the “overwhelming evidence” of the drug quantities
involved in the conspiracy, including physical evidence recovered
from Law’s apartment and testimonial evidence that Law himself
participated in transactions that, in aggregate, got him to the 50-gram
quantity that triggered his life sentence. Id. at 906-07 (pointing to
testimony that Law had participated in over 45 different transactions
involving the particular drug, half of which involved individual
purchases of over 50 grams).
31
we apply the principle of Law to adopt the individualized
approach to sentencing on the basis of drug quantity.
The Supreme Court in Burrage offered a new way to think
about drug-conspiracy offenses involving an aggravating
element that enhances a defendant’s sentence. Conspiring to
violate § 841(a)(1) is properly thought of as “a lesser-included
offense” of conspiring to violate § 841(a)(1) when death results
from the drug distribution. Burrage, 134 S. Ct. at 887 n.3.
Alleyne sets up this paradigm because the “death results”
element is a fact that triggers a mandatory minimum sentence
and thus must be found by a jury. See 570 U.S. at 108.
Similarly, conspiring to violate § 841(a)(1) is a “lesser-
included offense” of conspiring to violate § 841(a)(1) when the
drug quantity meets a threshold that triggers an enhanced
sentence.
The principle we set forth in Law that “a defendant
convicted of conspiracy to deal drugs . . . must be sentenced,
under § 841(b), for the quantity of drugs the jury attributes to
him as a reasonably foreseeable part of the conspiracy,” along
with the Alleyne/Burrage paradigm supports our conclusion
that the individualized approach to determining a mandatory-
minimum-triggering drug quantity is correct. 528 F.3d at 906.
We are also persuaded by the decisions of our sister circuits
that have adopted the individualized approach. Those opinions
buttress our conclusion here. See, e.g., Collins, 415 F.3d at
311-14 (relying in part on Pinkerton principles in holding that
the individualized approach to drug quantity is the correct one).
The Government’s general charging and motions practices
offer further evidence that the criminal justice system is
moving toward the individualized approach. The
Government’s argument for the conspiracy-wide approach
here appears to be a one-case wonder. At oral argument, the
32
Government could not safely say that there are any other cases
in this Circuit in which it is currently arguing for a court to
adopt the conspiracy-wide approach. Oral Arg. Recording at
47:45-48:56. Even in circuits that have adopted the
conspiracy-wide approach, the Government has at times urged
those courts to reconsider, and represented that its charging
policy employs the individualized approach. See Young, 847
F.3d at 366 & n.3 (6th Cir. 2017) (“The government also
mentions it has adopted a defendant-specific approach to
charging future drug conspiracies.”).
The District Court’s error was not harmless here because
the evidence was far from overwhelming with respect to the
quantity of heroin involved in the conspiracy that was
reasonably foreseeable to Woodruff and Stoddard. Had the
jury been properly instructed and given a proper verdict form,
the outcome may well have been different. Based on the
foregoing, we vacate Stoddard’s and Woodruff’s sentences and
remand to the District Court with instructions to re-sentence
each Appellant based on the crime for which the jury found
each one of them individually liable: entering into a conspiracy
to distribute an indeterminate quantity of heroin.
F.
Because we vacate Woodruff’s sentence and remand this
case for resentencing consistent with our holding in § II.E,
supra, we decline to reach Woodruff’s challenge to the District
Court’s use of the career-offender enhancement to calculate his
Sentencing Guidelines range. 5 On remand, we instruct the
5
In the District Court, the Government argued that Woodruff’s 1984
armed robbery conviction counted as a “crime of violence” under the
“elements clause” of USSG § 4B1.1. The Government represents
that it assumed the Supreme Court’s opinion in Johnson v. United
States, 135 S. Ct. 2551 (2015), holding that the residual clause of the
33
District Court to assess anew whether it is appropriate to use
the career-offender enhancement to calculate Woodruff’s
Guidelines Range in light of comprehensive arguments and
briefing by both parties, including arguments now open to the
Government in light of the Supreme Court’s intervening
decision in Beckles, 137 S. Ct. 886. If necessary, we will reach
the question of whether Woodruff’s 1984 armed robbery
conviction can serve as a valid predicate offense to use the
career-offender enhancement after Woodruff’s new sentence is
imposed and appealed.
III.
For the reasons discussed above, we affirm the District
Court’s denial of Appellants’ motions to suppress; affirm the
District Court’s denial of Woodruff’s and Stoddard’s motions
for acquittal; reverse the District Court’s denial of Cobble’s
motion for acquittal; and vacate Woodruff’s and Stoddard’s
sentences and remand their cases to the District Court for re-
sentencing consistent with this Opinion.
Armed Career Criminal Act was unconstitutional, meant that the
residual clause of USSG § 4B1.1 was likewise unconstitutional.
Appellee’s Br. 87 n.48. But the Supreme Court held in Beckles that
the residual clause in the Sentencing Guidelines was not
unconstitutional. Thus, on appeal the Government makes arguments
based on the residual clause. Although we review the District
Court’s calculation of sentencing guidelines de novo, we believe that
it is prudent to postpone making this assessment, if necessary at all,
until after the parties marshal their arguments during the
resentencing proceedings based on the clarification offered in
Beckles.