U.S. v. Landers

• Decision Date: 20 December 1994
• Docket Number: Nos. 93-5872,93-6363,s. 93-5872
• Citation: 39 F.3d 643
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Earl LANDERS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 643

39 F.3d 643

UNITED STATES of America, Plaintiff-Appellee, v. James Earl LANDERS, Defendant-Appellant.

Nos. 93-5872, 93-6363.

United States Court of Appeals Sixth Circuit.

Argued Sept. 20, 1994.

Decided Nov. 2, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied Dec. 20, 1994.

Linda Harris (argued and briefed) and Timothy R. DiScenza, Asst. U.S. Attys., Office of the U.S. Atty., Memphis, TN, for plaintiff-appellee.

Susan G. James (argued and briefed), Montgomery, AL, for defendant-appellant.

Before: MARTIN, KRUPANSKY, and BOGGS, Circuit Judges.

KRUPANSKY, Circuit Judge.

The defendant-appellant, James Earl Landers ("Landers"), challenged his jury conviction and resultant sentence for conspiracy to possess, with intent to distribute, 4,500 dosage units of dilaudid, ¹ a Schedule II controlled substance, in violation of 21 U.S.C. Secs. 812, 841(a)(1), and 846. The appellant additionally contested the revocation, as a consequence of this conviction, of a supervised release term imposed in an earlier prosecution.

In April 1992, Landers and his wife Rose, ² who resided in Memphis, Tennessee, became targets of a Drug Enforcement Administration (DEA) investigation of a dilaudid distribution ring following the arrest of a major supplier in New York City, Alberto Casamador. Evidence seized from Casamador's residence identified Rose as a possible customer. At that time, Landers was on supervised release for a prior dilaudid offense. ³ Enlisting the assistance of a confidential informant, Bobby Alexander, a confederate of Casamador who had allegedly transacted sizeable dilaudid sales with the defendant Landers and his wife Rose on previous occasions, DEA agents designed a sting operation in which Alexander offered, via a monitored telephone conversation, to sell dilaudid to Rose during an impending visit to Memphis. In response, Rose advised Alexander that he should deal with the defendant because she would be out of town at that time.

On April 30, 1992, in accordance with prearranged plans, Alexander and Special Agent Namon Jones (posing as Alexander's supplier) rendezvoused with Landers at a Memphis motel. Special Agent Dennis Mihalopoulos secretly videotaped the subsequent conversation. Landers had been informed by Alexander prior to his arrival that between three and five thousand tablets would be available for purchase from Jones; ⁴ Jones in fact had 4,500 doses. At the outset of the negotiations, Landers evinced suspicion, nervously peering about the room and questioning why no vehicle in the parking lot displayed a New York license plate. Ultimately, in a private conversation conducted outside the motel room, Landers attempted to convince Alexander to secure the drugs, or a portion of them, for him "on consignment," meaning that the defendant wanted the contraband "fronted" to him without payment. Landers purportedly would subsequently compensate the supplier after redistributing the pills to buyers. Alexander testified that, in the past, the Landerses had always paid cash in advance for dilaudid. Jones avowed that DEA policy prohibited allowing drugs to "walk" in the fashion advocated by Landers. The appellant subsequently left the putative suppliers without securing any dilaudid.

During a telephone conversation initiated by Alexander on the following day for the purpose of again offering the contraband for sale, Landers twice threatened to kill Alexander and angrily directed him not to telephone him or Rose again. The defendant further disclaimed at this time any interest in procuring dilaudid through Alexander. On the same day (May 1, 1992), during a search of the Landerses' residence conducted by DEA agents and local police pursuant to a warrant, approximately $10,200 in U.S. currency (which apparently carried a narcotic scent) was found in a bathroom compartment by a narcotics-sniffing dog and seized by investigators. The authorities also found a key in the dining room, which unlocked a safe deposit box at a bank registered to Rose and a third individual, which contained $62,000 in cash plus jewelry. Additionally, the officers discovered financial documents evidencing sizeable financial transactions involving the defendant and his wife.

After conviction by a jury, Landers was sentenced on June 18, 1993 to 188 months in prison plus 3 years of supervised release. Subsequently, on September 22, 1993, the sentencing judge in his earlier dilaudid prosecution, following a supervised release revocation hearing, imposed an additional 15 months of incarceration to be served consecutively to the 188 months imposed in the 1993 case, as punishment for violating the conditions of the supervised release assessed in 1990. Landers perfected timely appeals from both judgments.

The defendant first urged that his negotiations with an undercover agent and with a confidential informant to acquire controlled substances were insufficient to prove a 21 U.S.C. Sec. 846 narcotics conspiracy. See United States v. Pennell, 737 F.2d 521, 536 (6th Cir.1984), cert. denied, 469 U.S. 1158, 105 S.Ct. 906, 83 L.Ed.2d 921 (1985). However, the government argued that Landers and his wife conspired to obtain dilaudid between March 1 and May 8, 1992, not that Landers conspired with those who intended to effect his arrest. See Indictment, J.App. at 11-12. A criminal conspiracy is born when the members agree to participate in a collective venture designed to accomplish a common illegal objective. U.S. v. Rios, 842 F.2d 868, 873 (6th Cir.1988) (per curiam), cert. denied, 488 U.S. 1031, 109 S.Ct. 840, 102 L.Ed.2d 972 (1989). ⁵ A complete review of the record below reflected that the evidence admitted at trial was sufficient to prove the existence of a conspiratorial agreement between the defendant and his wife to secure an illegal narcotic as alleged in the Indictment, and accordingly the jury's verdict should be sustained. See id. at 872.

The appellant's second assignment of error faulted the district court's refusal of a requested jury instruction concerning the defendant's alleged withdrawal from the conspiracy. A trial court has no duty to instruct the jurors on a defense theory which was not supported by the law or the evidence. United States v. Sassak, 881 F.2d 276, 278 (6th Cir.1989). The trial record at best proved that Landers changed his mind about purchasing dilaudid from Jones and Alexander. No evidence supported the conclusion that Landers intended to withdraw from the conspiracy he had entered into with his wife to procure dilaudid, or that Landers communicated such an intention to Rose. See United States v. U.S. Gypsum Co., 438 U.S. 422, 464-65, 98 S.Ct. 2864, 2887, 57 L.Ed.2d 854 (1978) (withdrawal from, or abandonment of, a criminal conspiracy must be "communicated in a manner reasonably calculated to reach coconspirators[.]"). The lower court did not err in rejecting the defense's requested instruction on withdrawal from the criminal conspiracy because no evidence supported that theory.

The defendant invested his heaviest reliance upon his third appellate theory, that the sentencing court erroneously calculated his offense level based upon an inflated calculation of the narcotics amount. Landers argued that the court below should have tabulated his offense level with reference to the weight of the active narcotic ingredient (hydromorphone) in the 4,500 dilaudid tablets which he had purportedly conspired to obtain, rather than the full weight of the 4,500 tablets. ⁶ He posited that it is as illogical to include in the sentencing calculus the weight of inert carrier material in the pills as it would be to include the weight of a syringe used to inject hydromorphone or the weight of a brief case used to transport the narcotic. The appellant supported his position by citation to the asterisk note (final paragraph) to United States Sentencing Guidelines Sec. 2D1.1(c) [the Drug Quantity Table], ⁷ as amended effective November 1, 1993, ⁸ which mandates that, in LSD cases, the weight of doses on a carrier medium such as blotter paper will not be considered, but rather a standard weight of 0.4 milligrams per dose will be substituted. ⁹ In addition, Landers cited his 1990 dilaudid sentencing, where the trial judge determined his base offense level with reference to the weight of the hydromorphone within the tablets rather than the weight of the entire doses.

Congress has mandated in 21 U.S.C. Sec. 841(b)(1) that a defendant shall be sentenced based upon the weight of a "mixture or substance" containing a controlled narcotic, rather than with reference only to the weight of the pure narcotic. See Chapman v. United States, 500 U.S. 453, 459, 111 S.Ct 1919, 1925, 114 L.Ed.2d 524 (1991). The asterisk note to Guidelines Sec. 2D1.1(c) [in both the November 1, 1992 and November 1, 1993 versions] directs that "[u]nless otherwise specified, the weight of a controlled substance set forth in the table refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance."

Although this circuit has not heretofore ruled in a published opinion upon the calculation of the weight of dilaudid tablets for sentencing purposes, it has announced in at least six unpublished per curiam decisions that the entire weight of dilaudid tablets, rather than merely the quantity of hydromorphone contained therein, must be taken into account, and therefore the potency of the particular doses at issue was irrelevant for sentencing purposes as long as they contained some amount of active ingredient. United States v. Kiestler, Nos. 92-5099/5600/5601, 995 F.2d 1068, 1993 WL 172878, 1993 U.S.App. LEXIS 13092 (6th Cir. May 21, 1993); United States v. Tapert, No. 92-1628, 993 F.2d 1548, 1993 WL 168923, at * 2-3, 1993 U.S.App. LEXIS 12551, at * 7-9 (6th Cir. May 19, 1993); United States v. Rogers, No. 91-2209, 976 F.2d 734, 1992 WL 217722, at * 5-6, 1992 U.S. LEXIS 22408, at * 20 (6th Cir. Sept. 9,...