U.S. v. Fenton

Decision Date04 May 2004
Docket NumberNo. 03-1487.,03-1487.
Citation367 F.3d 14
PartiesUNITED STATES of America, Appellee, v. Coleman J. FENTON, Jr., a/k/a Joseph C. Fenton, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

Eileen F. Shapiro, by appointment of the court, on brief for appellant.

Paula D. Silsby, United States Attorney, and Margaret D. McGaughey, Appellate Chief, on brief for appellee.

Before SELYA, Circuit Judge, CYR, Senior Circuit Judge, and HOWARD, Circuit Judge.

SELYA, Circuit Judge.

A federal grand jury in the District of Maine indicted defendant-appellant Coleman J. Fenton, Jr. on thirty-four counts stemming from his involvement in a drug-trafficking conspiracy. Following his conviction on thirty-one counts and the imposition of sentence, Fenton appeals. He mounts a multi-dimensional challenge, claiming (i) that a prejudicial variance occurred because the government's proof showed multiple conspiracies rather than the single overarching conspiracy alleged in the indictment; (ii) that the district court erred both in allowing the joinder of counts that ought to have been charged separately and in failing to sever the mismatched counts; (iii) that the government failed to prove an essential element of the count charging malicious destruction of property by means of an explosive device; and (iv) that the Double Jeopardy Clause barred conviction and sentencing on six counts that constitute lesser included offenses of other counts of conviction.

After exhaustive examination of an amplitudinous record, we find the appellant's first three arguments unpersuasive. We do, however, accept his final point. Accordingly, we vacate the convictions and sentences on six counts; affirm the convictions and sentences on the remaining twenty-six counts; and remand for entry of an amended judgment.

I. BACKGROUND

We briefly sketch the facts, later embellishing this sketch as required in connection with our discussion of particular issues. Throughout, we take the facts in the light most favorable to the government, consistent with record support. United States v. Noah, 130 F.3d 490, 493 (1st Cir.1997).

The appellant plied the cocaine trade for a number of years as the prime mover in a drug-trafficking enterprise based in South Portland, Maine. He enlisted a number of other people as accomplices. These recruits included his son, Joey Beeler; his daughter, Kristin Beeler; and their half-sister, Brenda Sue Beeler. All three of these individuals testified for the government at the appellant's trial.

The evidence showed that Joey began selling drugs for his father in 1994, but floated in and out of juvenile correctional facilities for the next two years. Consequently, he did not join the family business in earnest until 1996. His participation continued until October of 1998, when he was arrested. Kristin began selling drugs in 1997 and remained active until sometime in 2001. Brenda Sue got a late start — she did not join the enterprise until 2000 (while still a high-school student) — but stayed in the game until the government's intervention put a halt to the appellant's operations.

The indictment painted a tawdry picture of street-level cocaine sales, supplemented by occasional violence. Count 1 charged the appellant and others with participation in an overarching drug-trafficking conspiracy that operated in Maine from 1996 until 2001. See 21 U.S.C. §§ 841(a)(1), 846. The remaining counts charged specific offenses, including distribution of cocaine on various dates, id. § 841(a)(1); distribution of cocaine within 1,000 feet of a school, id. § 860; enlistment of a minor to assist in conducting narcotics operations, id. § 861(a)(1); malicious destruction of property by means of an explosive device, 18 U.S.C. § 844(i); possession of an unregistered explosive device, 26 U.S.C. §§ 5841, 5861(d); and possession of a destructive device in connection with a drug-trafficking offense, 18 U.S.C. § 924(c).

The case originally was assigned to Senior Judge Carter, who handled many of the pretrial proceedings (including the motion to sever, described infra). Eventually, the case was transferred to Judge Singal, who presided over the appellant's trial. On December 17, 2002, a jury found the appellant guilty on thirty-one counts. Judge Singal sentenced him to an aggregate of forty-seven and one-half years in prison.

II. PREJUDICIAL VARIANCE

Before us, the appellant's primary claim is that the government failed to prove the existence of a single overarching conspiracy. In his view, the evidence actually revealed two separate conspiracies, or, alternatively, a conspiracy that ended with Joey's arrest and morphed into a series of casual drug sales to various of the appellant's acquaintances. The appellant suggests that this failure of proof resulted in a material and prejudicial variance between the crime charged in count 1 and the crime or crimes that the government proved. We must determine whether such a variance occurred and, if so, whether it adversely impacted the appellant's substantial rights. United States v. Perez-Ruiz, 353 F.3d 1, 7 (1st Cir.2003), cert. denied, ___ U.S. ___, 124 S.Ct. 2058, 158 L.Ed.2d 522, 2004 WL 595295, 72 U.S.L.W. 3658 (2004).

The ground rules are familiar. "In a jury trial, given proper instructions (or in lieu thereof, unchallenged instructions), the jury's determination as to whether one or more conspiracies existed is subject to review only for evidentiary sufficiency." United States v. David, 940 F.2d 722, 732 (1st Cir.1991). In the case at hand, the trial court instructed the jurors that in order to find the appellant guilty of conspiracy, they must find beyond a reasonable doubt "that the agreement specified in Count 1 of the indictment and not some other agreement or agreements, existed." This was a facially correct instruction, see, e.g., United States v. Balthazard, 360 F.3d 309, 316 (1st Cir.2004), and one to which the appellant interposed no contemporaneous objection. Our initial inquiry, therefore, is whether the evidence sufficed to support the jury's finding of an overarching conspiracy. United States v. Sepulveda, 15 F.3d 1161, 1190-92 (1st Cir.1993); David, 940 F.2d at 732.

In assessing sufficiency, we "canvass the evidence (direct and circumstantial) in the light most agreeable to the prosecution and decide whether that evidence, including all plausible inferences extractable therefrom, enable[d] a rational factfinder to conclude beyond a reasonable doubt that the defendant committed the charged crime." Noah, 130 F.3d at 494. It is not our province either to make credibility determinations or to insist that the prosecution rule out other possibilities that the evidence might be read to suggest. Id. Furthermore, we must uphold the verdict as long as a plausible reading of the record supports the jury's finding of a single conspiracy. Perez-Ruiz, 353 F.3d at 7. With these principles in mind, we turn to the task at hand.

A conspiracy is an agreement between two or more persons, including the defendant, to commit a particular crime. United States v. Moran, 984 F.2d 1299, 1302 (1st Cir.1993); United States v. Echeverri, 982 F.2d 675, 679 (1st Cir.1993). To determine whether a single agreement existed between a defendant and his coconspirators, courts consider the totality of the circumstances, paying particular heed to factors such as the existence of a common goal, evidence of interdependence among the participants, and the degree to which their roles overlap. United States v. Portela, 167 F.3d 687, 695 (1st Cir.1999). The test is a pragmatic one; the proof need not show that each conspirator knew of all the others, nor that the group remained intact throughout the duration of the enterprise. United States v. Soto-Beníquez, 356 F.3d 1, 19 (1st Cir.2003); United States v. Boylan, 898 F.2d 230, 242 (1st Cir.1990).

In this case, the appellant concedes that the evidence, construed in the light most agreeable to the government, supports a finding that he and his kinfolk (alleged to be coconspirators) shared the common practice and goal of selling drugs for profit. He argues, however, that because Joey's activities were conducted in a different time frame than his sisters' activities, no single overarching conspiracy existed. In the appellant's estimation, the most that the government proved is that he and Joey conspired to distribute narcotics from 1996 to 1998, and that the subsequent drug-trafficking activity involving Kristin and Brenda Sue was a wholly separate affair.

The appellant's attempt to compartmentalize his activities and carve out separate conspiracies fails. The record, read most favorably to the prosecution, David, 940 F.2d at 732, contains evidence that is more than adequate to sustain the verdict. A number of drug users testified that they bought cocaine from the appellant on a continuing basis (i.e., throughout the five-year time span described in the indictment). These individuals testified to a pattern and practice: from time to time, they would receive drugs from one of the appellant's children or other sales agents and later pay the appellant himself for the purchase. Joey, Kristin, and Brenda Sue each admitted that he or she peddled cocaine for the appellant, and the evidence suggested that each of them knew that other individuals, including his or her siblings, also toiled as sales agents for the appellant.

Although the cast of characters changed over time, the modus operandi remained constant. The testimony indicated, for example, that one supplier, Stephanie Davis, furnished drugs to the enterprise from 1996 to 2001. Davis dealt indiscriminately with Joey, Kristin, and Brenda Sue (as internuncios). The purchases from Davis invariably were financed by the appellant and, once procured, the raw drugs invariably were delivered to him so that he could dilute, cut, and package them into...

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