United States v. Elohim Cross , 766 F.3d 1 ( 2013 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 11, 2013 Decided September 10, 2013
No. 11-3096
UNITED STATES OF AMERICA,
APPELLEE
v.
ELOHIM BEY CROSS,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cr-00281-11)
Adam H. Kurland, appointed by the court, argued the cause
and filed the briefs for appellant.
Katherine M. Kelly, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Ronald C.
Machen Jr., U.S. Attorney, and Elizabeth Trosman, John P.
Mannarino, and John K. Han, Assistant U.S. Attorneys.
Before: GARLAND, Chief Judge, ROGERS, Circuit Judge,
and SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Chief Judge GARLAND.
-2-
GARLAND, Chief Judge: Elohim Cross appeals his
conviction for conspiring to distribute heroin. He contends that
the trial court erred in not giving a multiple conspiracies jury
instruction, and that the prosecutor erred in making improper
statements regarding multiple conspiracies in his rebuttal
argument. We conclude that, even if there were error, any such
error was harmless. We therefore affirm Cross’ conviction.
I
In 2009, federal law enforcement authorities received a tip
that a man named Mouloukou Toure was distributing heroin on
a large scale in the Washington, D.C. area. In the course of
pursuing that lead, investigators tapped Toure’s telephones.
Through those wiretaps, they learned that Toure’s supplier was
based in Toronto, Canada and operated under the alias “Big
Brother.” They also learned that couriers delivered the heroin
from Canada to Washington, D.C., where Toure served as a
regional supplier to several lower-level distributors.
On the wiretap, the agents overheard a series of
conversations between Toure and appellant Cross. On several
occasions, Cross used coded language to place narcotics orders.
Cross and Toure also discussed purchasing prepaid cell phones
to escape detection by the police. In one conversation, Toure
told Cross about a police raid on a stash house where Toure had
kept some of his drugs; Toure expressed concern that an
individual arrested in the raid might become a police informant.
And, in a moment of supreme irony, the two shared their
admiration for The Wire, an HBO television series about drug
dealers being monitored by a wiretap. Supp. App. 15 (“Yea
season three is my favorite.”).1
1
See The Wire (Season Three) (HBO television broadcast Sept. 19
- Dec. 19, 2004).
-3-
Based on the intercepted conversations, the FBI staked out
a Comfort Inn in Capitol Heights, Maryland. On October 3,
2009, an FBI agent watched Toure walk into the hotel and enter
one of the elevators. “Seconds later,” the agent testified, “the
other elevator opened up, Mr. Cross came out, he looked around
the lobby, . . . . [and] [t]hen he went back into the elevator and
went up to the second floor.” Trial Tr. 82 (July 19, 2011 a.m.).
The agent hid in a stairwell on the second floor and, when he
heard a door open, observed Toure walking out of Room 217.
Id. at 83.
On the morning of November 4, 2009, an FBI agent visited
the Comfort Inn. At his request, the hotel’s manager gave him
records confirming that Cross was staying in Room 217 and that
he had stayed in the same room on October 3, 2009. The
records also revealed that Cross had stayed at the hotel for
weeks at a time throughout 2009 and that he paid exclusively in
cash.
Later that morning, agents monitoring the wiretap
overheard Cross calling Toure in a panic. There followed a
conversation that could well have been written for The Wire.
Cross told Toure that “I got a tip from the . . . front desk” that
the hotel’s manager gave an officer “a printout . . . of my whole
time” in the hotel. Supp. App. 19. Cross said he had to send
someone back to the hotel room “[b]ecause I still got things in
there, you feel me, it’s going to be hard to find but I got things
in there . . . [Y]ou know what I’m sayin?” Id. at 20. To which
Toure replied, “[y]eahhh, you got to be careful dawg.” Id. A
subsequent search of Room 217 unearthed a bag containing
heroin and morphine hidden behind the faceplate of an electrical
outlet; several small ziplock bags of heroin and cocaine base in
the drawer of a nightstand; and an assortment of drug-related
paraphernalia hidden elsewhere in the room, including numerous
-4-
plastic sandwich bags, a digital scale, disposable gloves, and
surgical face masks.
In a call intercepted the day after the search, Cross told
Toure: “I sent a couple of my home boys . . . to the room to get
all my stuff,” and they found a copy of a “search and seizure
warrant.” Supp. App. 24. Cross told Toure not to worry,
because “I don’t call nobody from this phone but you.” Id.
Cross said that he wanted to meet Toure “face to face cause right
now this like . . . in the movie you know what I’m talking
about?” Id. at 25.
In a single-count indictment, a grand jury charged that
Cross, “Big Brother” (identified as Olayinka Johnson), and
several other named individuals “did knowingly and willfully
. . . conspire . . . together, and with other persons both known
and unknown,” to distribute and possess with intent to distribute
a kilogram or more of heroin. App. 34-35. Cross alone went to
trial. All of the others pled guilty, and Toure testified for the
government. Toure told the jury that he sold heroin to Cross in
amounts ranging from 50 to 200 grams, which, over time,
totaled 1.2 to 1.3 kilograms. Trial Tr. 18-19 (July 19, 2011
p.m.); Trial Tr. 36, 48, 50 (July 21, 2011 a.m.). The deals often
took place in Cross’ room at the Comfort Inn, Toure said, where
Cross had small ziplock bags and other paraphernalia for
“bagging” the heroin for subsequent distribution. Trial Tr. 26-
27 (July 19, 2011 p.m.). Toure testified that he told Cross that
Big Brother was the heroin supplier; where Big Brother “was at,
and where he was from”; and the quantities of heroin Big
Brother was providing. Id. at 20. Toure also said that he and
Cross discussed contributing $30,000 each so they could
purchase a kilogram of heroin directly from Big Brother. Id. at
25.
-5-
Cross was convicted and sentenced to 240 months in prison.
He appeals on two grounds, which we consider in the following
two parts.
II
Before the close of trial, Cross asked the court to instruct
the jury that it should not convict him if the evidence showed he
had engaged in a buyer-seller conspiracy solely with Toure,
rather than in the larger conspiracy charged in the indictment.
Under Cross’ theory, such an instruction was warranted because
“the Government elicited from Toure a totally separate
conspiracy” between Toure and Cross. Trial Tr. 27 (July 20,
2011 p.m.).
The trial court rejected Cross’ request. The court ruled that
“the real question is whether there’s a factual . . . predicate
justifying the jury instruction for multiple conspiracies.” Id. at
24. The court found there was not. Reviewing the evidence
presented at trial, the court noted that Big Brother was “the
highest and only source of heroin in this charged conspiracy,
[who] used couriers to deliver to Toure, who in turn was the one
who distributed to, allegedly, Mr. Cross and others.” Id. Given
those facts, the court held that the evidence made out only one
conspiracy, as the jury was allowed “to infer . . .
interdependence . . . up and down the distribution chain.” Id. at
25 (citing United States v. Tarantino, 846 F.2d 1384 (D.C. Cir.
1988)).
Although the court rejected Cross’ proposed multiple
conspiracies instruction, it granted his request for an instruction
cautioning the jury that “a simple buyer/seller relationship alone
does not make out a conspiracy, even where the buyer intends
to resell the heroin.” Id. at 51. The court instructed the jury to
consider several factors in determining “whether a conspiracy or
-6-
a simple buyer/seller relationship existed,” including “whether
the transaction involved large quantities of heroin,” “whether the
parties had a standardized way of doing business over time,”
“whether the parties had a continuing relationship,” “whether
the seller had a financial stake in a resale by the buyer,” and
“whether the parties had an understanding that the heroin would
be resold.” Id.
On appeal, Cross argues that the court erred in denying his
request for a multiple conspiracies instruction. As with any
other theory-of-defense instruction, a multiple conspiracies
instruction “is in order if there is sufficient evidence from which
a reasonable jury could find for the defendant on his theory.”
United States v. Moore, 651 F.3d 30, 78-79 (D.C. Cir. 2011)
(internal quotation marks omitted), aff’d on other grounds sub
nom. Smith v. United States, 133 S. Ct. 714 (2013). Cross
renews his argument that there was sufficient evidence because
“the evidentiary record, fairly construed, supported the argument
that [he] was part of a separate smaller conspiracy” with Toure,
“not the one charged in the indictment.” Appellant Br. 8. The
government responds that the “trial evidence supported only the
existence of the single conspiracy charged,” Gov’t Br. 16, “a
chain conspiracy” that ran from Big Brother through Toure to
Cross and other retail distributors, id. at 27.
We need not decide whether the district court erred in
failing to give a multiple conspiracies charge if any such error
was harmless. The harmless error rule provides that any error
that “does not affect substantial rights must be disregarded.”
FED. R. CRIM. P. 52(a). This means that “the error must have
been prejudicial” for Cross to win reversal, United States v.
Olano, 507 U.S. 725, 734 (1993). And in a case like this, an
error is not prejudicial unless it “had a ‘substantial and injurious
effect or influence in determining the jury’s verdict.’” United
States v. Baugham, 449 F.3d 167, 174 (D.C. Cir. 2006) (quoting
-7-
Kotteakos v. United States, 328 U.S. 750, 776 (1946)); see
United States v. Johnson, 519 F.3d 478, 483 (D.C. Cir. 2008).
Cross proffers only one possible kind of prejudice
stemming from the trial court’s failure to instruct on his multiple
conspiracies theory: the risk that he was convicted of the larger
conspiracy charged in the indictment, when the only one he was
guilty of beyond a reasonable doubt was a smaller one with
Toure alone. Appellant Br. 8-9, 16-17. As counsel
acknowledged at oral argument, this is essentially a claim of
variance. See Oral Arg. Recording at 49:10; see, e.g., United
States v. Mathis, 216 F.3d 18, 23 (D.C. Cir. 2000).
It is reasonable to raise a variance claim in this context,
because the purpose of a multiple conspiracies instruction is to
protect against the risk of a prejudicial variance between the
conspiracy charged in the indictment and the one proven at trial.
See United States v. Celis, 608 F.3d 818, 845 (D.C. Cir. 2010);
United States v. Anguiano, 873 F.2d 1314, 1317-18 (9th Cir.
1989); United States v. Cambindo Valencia, 609 F.2d 603, 625
(2d Cir. 1979). Accordingly, because we are assuming for
purposes of argument that the district court erred in declining to
give a multiple conspiracies charge, we will likewise assume
that a variance involving multiple conspiracies occurred. See
Cambindo Valencia, 609 F.2d at 606.
But not every variance between the crime charged and the
crime proven is fatal to the validity of the resulting conviction.
Berger v. United States, 295 U.S. 78, 81 (1935); see United
States v. Miller, 471 U.S. 130, 131 (1985) (holding that “the
Fifth Amendment’s grand jury guarantee” is not “violated when
a defendant is tried under an indictment that alleges a certain
fraudulent scheme but is convicted based on trial proof that
supports only a significantly narrower and more limited, though
included, fraudulent scheme”). “The true inquiry,” the Supreme
-8-
Court has said, “is not whether there has been a variance in
proof, but whether there has been such a variance as to affect the
substantial rights of the accused.” Berger, 295 U.S. at 82. Once
again, then, “the proper standard of review for the type of
variance claimed here is the conventional one, articulated in
Kotteakos v. United States, i.e., whether the error had a
‘substantial and injurious effect or influence in determining the
jury’s verdict.’” Baugham, 449 F.3d at 174 (quoting Kotteakos,
328 U.S. at 776 (internal citation omitted)).
In short, a variance between a single conspiracy charged in
an indictment and alleged multiple conspiracies proven at trial
requires reversal of a conviction only if the defendant suffered
prejudice as a consequence. Mathis, 216 F.3d at 25; United
States v. Gatling, 96 F.3d 1511, 1519 (D.C. Cir. 1996); United
States v. Graham, 83 F.3d 1466, 1471 (D.C. Cir. 1996);
Tarantino, 846 F.2d at 1391. Hence, a showing of prejudice is
required regardless of whether the alleged trial error is that the
court failed to give a multiple conspiracies instruction, or simply
that a variance occurred. See United States v. Howard, 115 F.3d
1151, 1157 (4th Cir. 1997) (“[F]ailure to give a multiple
conspiracy instruction is not reversible error unless the
defendants demonstrate that they have been prejudiced by the
variance between the single conspiracy charged in the
indictment and the multiple conspiracies proven at trial.”
(internal quotation marks omitted)).
So, what was the prejudice in this case? Cross’ briefs do
not proffer any. Nor do we do discern any of the kinds of
prejudice that we typically associate with variances.
1. The alleged variance would, of course, be prejudicial if
there were insufficient evidence for a reasonable jury to find
Cross guilty of the conspiracy charged in the indictment beyond
a reasonable doubt. See Graham, 83 F.3d at 1472. But Cross
-9-
does not dispute that there was sufficient evidence to support his
conviction for membership in that conspiracy. See Appellant
Br. 17; Appellant Reply Br. 4; Oral Arg. Recording at 5:20. Nor
could he.
The government presented evidence of a typical “chain-type
conspiracy common in narcotics cases,” Tarantino, 846 F.2d at
1392 (internal quotation marks omitted). Here the chain ran
from the principal supplier (Big Brother) through the middleman
(Toure) to lower-level distributors (including Cross). As the
evidence showed, Cross was a heroin dealer who received
continuous, wholesale amounts of heroin from his immediate
supplier, Toure, and then repackaged the heroin for retail sale.
In Tarantino, we explained the legal implications of such a
distribution arrangement:
Under the chain analysis, the government need not
prove a direct connection between all the
conspirators. A single conspiracy may be established
when each conspirator knows of the existence of the
larger conspiracy and the necessity for other
participants, even if he is ignorant of their precise
identities. When the conspirators form a chain, each
is likely to know that other conspirators are
required. . . . The existence of a chain helps us
determine both the unlawful objective and the
conspirators’ intent. . . . [E]ach link in the chain may
rely upon the other links in furtherance of the
common interest. The street dealer relies upon his
supplier; the supplier relies upon his supplier; and so
on. The existence of such a vertically integrated,
loose-knit combination may raise the inference that
each conspirator has agreed with the others (some
whose specific identity may be unknown) to further
-10-
a common unlawful objective, e.g., the distribution of
narcotics.
Id. at 1392; see e.g., United States v. Gaviria, 116 F.3d 1498,
1516 (D.C. Cir. 1997); United States v. Childress, 58 F.3d 693,
709-10 (D.C. Cir. 1995).2
There is no dispute that Cross was “likely to know that
other conspirators” beyond Toure were necessary for the success
of the heroin venture, Tarantino, 846 F.2d at 1393.3 As Cross’
counsel acknowledged at oral argument: “Everybody knows
that Toure -- he’s not the Rumpelstiltskin of heroin -- he didn’t
turn straw into heroin -- everybody knows that it’s coming from
somewhere else.” Oral Arg. Recording at 51:22. Indeed, Cross
did not even have to infer the existence of a higher-level
supplier; nor was he “ignorant of the[] precise identit[y]” of that
supplier, Tarantino, 846 F.2d at 1393. To the contrary, Toure
2
In Tarantino, we cautioned that:
Chain analysis must be used with care. Even in a vertically
integrated combination, certain players may have performed
activities wholly unrelated to the aims of the conspiracy. . . .
Thus, even if we determine that a chain conspiracy exists,
we may still conclude that certain actions were outside the
chain and formed a separate conspiracy.
846 F.2d at 1393 (emphasis added). In this case, however, there is no
evidence that the transactions between Cross and Toure were “wholly
unrelated” to the aims of the conspiracy charged in the indictment.
3
See Tarantino, 846 F.2d at 1398 (“The government was not
obliged to prove that [the defendant] knew every detail of the
conspiracy. All that is required is that the evidence establish that he
knew others were involved and that his own benefits depended upon
the success of the entire venture.”).
-11-
told Cross that the heroin supplier was Big Brother; where Big
Brother “was at, and where he was from”; and the quantities of
heroin Big Brother was providing. Trial Tr. 20 (July 19, 2011
p.m.).
We conclude, as did the trial court, that there was sufficient
evidence for the jury to convict Cross of the conspiracy charged
in the indictment. See Sentencing Tr. 15 (Oct. 21, 2011). And
“[b]ecause the evidence [of a single conspiracy] was sufficient,
any variance from the indictment did not substantially prejudice
the appellant[],” Graham, 83 F.3d at 1472; see United States v.
Stewart, 104 F.3d 1377, 1382 (D.C. Cir. 1997). Or at least the
alleged variance alone did not prejudice the appellant. The
remaining question is whether the alleged variance led to any
other kind of prejudice that “had a ‘substantial and injurious
effect or influence in determining the jury’s verdict.’”
Baugham, 449 F.3d at 174 (quoting Kotteakos, 328 U.S. at 776).
2. Other than insufficiency of the evidence, the most
serious kind of prejudice that may stem from a variance between
the conspiracy charged in an indictment and the evidence proven
at trial is the problem of notice. This problem arises if the
variance interferes with either of the two purposes served by a
grand jury indictment:
(1) that the accused shall be definitely informed as to
the charges against him, so that he may be enabled to
present his defense and not be taken by surprise by
the evidence offered at the trial; and (2) that he may
be protected against another prosecution for the same
offense.
Berger, 295 U.S. at 82; see Miller, 471 U.S. at 134-35.
-12-
But there was no notice problem here, as there rarely (if
ever) will be if the trial proof “supports only a significantly
narrower and more limited” charge than that stated in the
indictment. Miller, 471 U.S. at 131. Cross was clearly on
notice that he would need to defend against the charge that he
agreed with Toure to distribute heroin, because his transactions
with Toure were part of the proof of both of the two conspiracies
that Cross posits. Indeed, Cross’ opening statement to the jury
made clear he understood the risk that the evidence would show,
and the jury would find, that he had an agreement with Toure.
See Trial Tr. 33 (July 19, 2011 a.m.). Nor is there any doubt
that the indictment was “sufficient to allow [Cross] to plead it in
the future as a bar to subsequent prosecutions.” Miller, 471 U.S.
at 135. Accordingly “none of these ‘notice’ related concerns --
which of course are among the important concerns underlying
the requirement that criminal charges be set out in an
indictment,” id. -- suggest that Cross suffered prejudice from the
variance he asserts.
3. Another kind of prejudice that is typically at issue in
variance cases is “the risk of ‘transference of guilt from one
[defendant] to another across the line separating conspiracies,
subconsciously or otherwise.’” Baugham, 449 F.3d at 175(quoting Kotteakos, 328 U.S. at 774). But because Cross “was
tried alone, his is not a case in which the number of defendants
and conspiracies tried together created a danger that, due to
‘spillover’ effects, appellant might be found guilty based on
evidence properly admitted only against someone else.”
Stewart, 104 F.3d at 1382; see Anguiano, 873 F.2d at 1318(“[T]here is no problem of spillover when . . . the defendant
stands trial alone.”).
4. A related kind of “spillover” prejudice is the risk that
evidence of one conspiracy will spill over onto the jury’s
assessment of another conspiracy. See Tarantino, 846 F.2d at
-13-
1391. Cross did not make this argument in his briefs. His effort
to assert it for the first time at oral argument, Oral Arg.
Recording at 22:53, 45:02, comes too late. See United States v.
Southerland, 486 F.3d 1355, 1360 (D.C. Cir. 2007) (holding that
a contention first raised at oral argument is forfeited).
In any event, it is unclear what the spillover argument
means in a case like this. Cross cryptically suggested at oral
argument that there was a “spillover” of evidence from the
“Canada conspiracy” -- i.e., the charged conspiracy that
included Big Brother, whose base was in Canada. Oral Arg.
Recording at 45:45. But onto what did that evidence “spill”?
The answer would have to be the allegedly separate conspiracy
between Cross and Toure. But whether or not that conspiracy
was truly “separate,” the evidence that Cross was engaged in a
conspiracy with at least Toure was so strong -- indeed, Cross
essentially concedes the point, see Oral Arg. Recording at 48:16
-- that it is hard to see how any spillover could have materially
affected the jury’s view of Cross’ culpability for that
conspiracy.4
Finally, and most important, this particular spillover
argument is not really relevant to the gravamen of the claim
Cross raises on this appeal. Cross’ claim is not that he was
wrongly convicted of the alleged Toure conspiracy, but that he
4
Moreover, any danger of spillover prejudice was largely
eliminated by the government’s introduction of wiretap recordings in
which Cross directly implicated himself in the conspiracy. See Celis,
608 F.3d at 846 (holding that “the risk of prejudicial spillover is
minimal” when the government presents tape recordings of a
defendant discussing criminal acts, “because the jury has no need to
look beyond each defendant’s own words in order to convict” (internal
quotation marks omitted)); see also Gaviria, 116 F.3d at 1533; Mathis,
216 F.3d at 25.
-14-
was wrongly convicted of the indicted conspiracy. And yet he
offers no argument at all that evidence of the former improperly
“spilled over” onto the latter.
***
In sum, even if we assume the district court erred in failing
to give a multiple conspiracies instruction, and even if we
assume that failure produced a variance, reversal of Cross’
conviction remains unwarranted. Variance is grounds for
reversal only if it prejudiced the defendant, and we discern no
prejudice here.
III
Cross’ second contention is that the prosecutor made
improper remarks during his rebuttal argument. The trial court
had instructed defense counsel not to argue a multiple
conspiracies theory during closing arguments. See Trial Tr.
62-63 (July 20, 2011 p.m.). According to Cross, the government
took unfair advantage of this limitation when it argued that, “for
the purpose of finding [Mr. Cross] guilty of the crime charged,
all you need is two, Mr. Cross plus one other person, Mr.
Toure,” Trial Tr. 47 (July 21, 2011 a.m.); that “in this case we
can prove simply Mr. Cross got in an agreement with one other
person -- that’s two -- in this case Mouloukou Toure,” id.; and
that the jury should “focus on the conspiracy, just two or more
people, between Mr. Toure and Mr. Cross,” id. at 52. See
Appellant Br. 21-22.
Once again, we need not determine whether the
prosecutor’s argument was improper if the asserted error did not
cause the defendant to suffer prejudice. Moore, 651 F.3d at 50.
Cross does not dispute that, at least theoretically, the
prosecutor’s “you only need two” argument “correctly state[s]
-15-
the law” of conspiracy. See Appellant Br. 22; Oral Arg.
Recording at 11:49. Cross does maintain that, in context, the
prosecutor’s statements were prejudicial because they suggested
that the jury could convict him of the charged conspiracy
notwithstanding that he was only guilty of the separate
conspiracy with Toure. Appellant Br. 25. But that is the same
“fatal variance” argument that we considered and dismissed in
Part II. We dismiss it again here on the same basis.
IV
For the foregoing reasons, the judgment of the district court
is
Affirmed.