U.S. v. Curtis

Decision Date29 September 1994
Docket NumberNo. 93-3447,93-3447
Citation37 F.3d 301
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Paul CURTIS, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

K. Tate Chambers, Bradley W. Murphy, Asst. U.S. Attys., Peoria, IL, for plaintiff-appellee.

Peter B. Keller, Keller & Hall, Tucson, AZ (argued), for defendant-appellant.

Before MESKILL, * FLAUM, and MANION, Circuit Judges.

FLAUM, Circuit Judge.

Jeffrey Paul Curtis was sentenced to 262 months imprisonment after a jury found him guilty of conspiracy to distribute marijuana and acquitted him of a companion charge of money laundering. On appeal, Curtis raises four arguments: (1) that the district court erred in admitting hearsay statements of a co-conspirator; (2) that the evidence presented at trial was insufficient to prove a single conspiracy; (3) that the court erred in imposing a sentence enhancement for obstruction of justice; and (4) that the court erred in denying a reduction for acceptance of responsibility. We affirm.

I.

In May 1992, Curtis and four others were charged with conspiracy to distribute marijuana between 1982 and 1988 and money laundering. Two of the defendants were alleged to have been involved as distributors throughout the period while the other three were thought to have participated as successive suppliers. Three of the defendants entered into plea agreements, and in January 1993, the district court granted Curtis' pre-trial motion to sever his trial from that of the remaining co-defendant, Martin Sax, whom the government contended was the original supplier. The government then sought and obtained a new indictment against Curtis in February 1993, charging the same two violations but limiting the dates of the alleged conspiracy to the years in which Curtis was the supplier.

Curtis remained out of custody while awaiting trial on the original indictment and appeared in Peoria for arraignment on the new indictment on March 15, 1993. At that time the court scheduled a further hearing for March 18 to discuss the conditions of release. Curtis failed to appear in Peoria as directed on the 18th; instead he turned himself in that day to the United States Marshal in Tucson, Arizona. On account of Curtis' disobedience, the court ordered him to remain in custody throughout trial and sentencing.

At trial the government called several witnesses who testified that Curtis had supplied substantial amounts of marijuana to two major Illinois distributors, Mike Cutkomp and Joe Cullinane, from 1986 to 1989. The government's key witnesses were Cullinane himself and Mike Cutkomp's former wife, Karen. Cullinane testified that Cutkomp had introduced him to Curtis and helped facilitate their initial transaction in 1986. For some time thereafter Cullinane used his own couriers to transport the marijuana from Arizona to Illinois, but later received his deliveries from Curtis' trucks. Cullinane asserted that after the initial transaction, his arrangements with Curtis were conducted separately from Cutkomp's and that the two Illinois dealers did not consider themselves to be partners. One of Cullinane's couriers, Ron Witt, testified that he had driven several truck-loads of marijuana supplied by Curtis for distribution in Illinois. Witt was aware that Curtis was supplying marijuana to both Cullinane and Cutkomp.

At trial Karen Cutkomp testified to statements made to her by her husband during the course of the alleged conspiracy. Curtis objected to the admission of these statements, which he contended were not made in furtherance of the conspiracy, but the court overruled the objection and allowed the testimony. Karen Cutkomp also testified that while she and her then-husband were en route to Mexico (attempting to remain a step ahead of law enforcement authorities) they met with Curtis in Tucson and turned over to him approximately $225,000 in marijuana proceeds that Curtis later delivered to a man in Nogales, Arizona, according to their instructions. In addition, Karen Cutkomp's mother, Rosina Jech, testified that she had served as a drug courier between Tucson and the Quad Cities area and had been introduced to Curtis in Tucson through Mike Cutkomp.

Curtis neither testified nor presented witnesses on his own behalf. He did, however, make a statement to investigators on December 13, 1990. At that time, Curtis admitted that Marty Sax had introduced him to Mike Cutkomp and that he knew that Cutkomp was a fugitive. Curtis denied having any correspondence or business dealings with Cutkomp, though he recalled meeting Rosina Jech and Joe Cullinane and stated that his business had access to trucks. Curtis' trial strategy relied on two principal arguments. First, he hoped that the jury would discount the testimony of the key witnesses against him on the basis of their own criminal conduct and a perception that their credibility might be tainted by their obvious incentive to curry favor with the prosecution. Second, he argued that the government had proven two separate conspiracies (Curtis-Cutkomp and Curtis-Cullinane) rather than one all-encompassing conspiracy (Curits-Cutkomp-Cullinane).

At the jury instruction conference, Curtis successfully argued for the inclusion of Defendant's Instruction No. 1, which stated:

Proof of several separate conspiracies is not proof of the single, overall conspiracy charged in the indictment unless one of the several conspiracies which is proved is the single conspiracy which the indictment charges. What you must do is determine whether the conspiracy charged in the indictment existed between two or more persons. If you find that no such conspiracy existed, then you must acquit. However, if you are satisfied that such a conspiracy existed, you must determine who were the members of that conspiracy.

To find the defendant guilty, you must find that he was a member of the conspiracy charged in the indictment.

The jury returned a verdict of guilty on the conspiracy to distribute marijuana charge, and a verdict of not guilty on the money laundering charge.

At sentencing, the court imposed a two-level upward adjustment for obstruction of justice, U.S.S.G. Sec. 3C1.1, and denied Curtis' request for a two-level reduction for acceptance of responsibility. U.S.S.G. Sec. 3E1.1. The court sentenced Curtis to 262 months imprisonment, the lowest possible sentence within the applicable guideline range.

II.
A.

We turn first to Curtis' argument that an impermissible variance existed between the indictment and the proof at trial. Specifically, Curtis contends that while a rational jury may have concluded that he had supplied a large quantity of marijuana to both Cullinane and Cutkomp, there was insufficient evidence to link all three in a single conspiracy. Drawing upon this court's decisions in United States v. Townsend, 924 F.2d 1385 (7th Cir.1991) and United States v. Napue, 834 F.2d 1311 (7th Cir.1987), Curtis maintains that no single overarching scheme existed because his arrangement with Cullinane was separate from and not in any way dependent upon the agreement he made with Cutkomp. In response, the government asserts that Cullinane and Cutkomp had acted in concert long before Curtis became their supplier and continued to receive joint shipments from Arizona at various points during the purported Curtis-Cullinane-Cutkomp conspiracy. Moreover, the government suggests that several additional pieces of evidence--the number of long distance telephone calls between the three parties, the size of the marijuana shipments (on occasion over 1,000 pounds) and the fact that Cullinane absorbed an entire shipment after Cutkomp fled to Mexico as a favor to Curtis--give rise to an inference of mutual support and dependence. Curtis responds that the permissible inferences to be drawn from the evidence extend no further than that Cullinane and Cutkomp knew each other, talked on the phone, and had the same type of business relationship with Curtis.

A defendant asserting a claim of variance will succeed in obtaining reversal of his conviction only if he establishes that (1) the evidence presented at trial was insufficient to support the jury's finding of a single conspiracy, and (2) he was prejudiced by the variance. See United States v. Testa, 33 F.3d 747, 750 (7th Cir.1994); Townsend, 924 F.2d at 1390; see also Fed.R.Crim.P. 52(a). We have stated on numerous occasions that the jury gets "first crack" at deciding "whether there is one conspiracy or several when the possibility of a variance occurs," see e.g., United States v. Nava-Salazar, 30 F.3d 788, 796 (7th Cir.1994); United States v. Paiz, 905 F.2d 1014, 1019 (7th Cir.1990), cert. denied, 499 U.S. 924, 111 S.Ct. 1319, 113 L.Ed.2d 252 (1991), because a question of variance is a question of fact within the jury's realm of expertise. Paiz, 905 F.2d at 1019. Where, as here, the parties argued and the jury was instructed as to the dispute concerning the number of possible conspiracies, our initial inquiry simply becomes one of the sufficiency of the evidence. Thus, we view the evidence most favorably to the government, and we uphold a jury's factual conclusion that a single conspiracy existed if any rational trier of fact could have found, beyond a reasonable doubt, the one conspiracy. United States v. Emenogha, 1 F.3d 473, 480 (7th Cir.1993) (citations omitted). Finally, even if we do not find sufficient evidence of a single conspiracy, the variance will be fatal to the government's case only if the defendant can demonstrate prejudice. Townsend, 924 F.2d at 1410. This additional requirement reflects the understanding that "[t]he crime of conspiracy focuses on agreements, not groups;" accordingly, the government "need only prove that the defendant joined the agreement alleged," and need not establish the group of coconspirators with whom the defendant joined. See Testa, 33 F.3d at 750 (citing Townsend, 924 F.2d at 1389).

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