U.S. v. Lewis

• Decision Date: 22 January 2007
• Docket Number: No. 04-51183.,04-51183.
• Citation: 476 F.3d 369
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael Curtis LEWIS, also known as Bones; Charles Samson, also known as Killer; Malachi David Wren; Victor Wesley Tucker, also known as Pokey; Donnie Thompson; Michael Norris Martin, also known as Mikey; Buddy Ford; Leonard Duane Griffith, also known as Radar; Jerry Wayne Beason; Shane Samson, also known as Buffy, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

476 F.3d 369

UNITED STATES of America, Plaintiff-Appellee, v. Michael Curtis LEWIS, also known as Bones; Charles Samson, also known as Killer; Malachi David Wren; Victor Wesley Tucker, also known as Pokey;

Donnie Thompson; Michael Norris Martin, also known as Mikey; Buddy Ford; Leonard Duane Griffith, also known as Radar; Jerry Wayne Beason; Shane Samson, also known as Buffy, Defendants-Appellants.

No. 04-51183.

United States Court of Appeals, Fifth Circuit.

January 22, 2007.

Joseph H. Gay, Jr., Asst. U.S. Atty., Mark Twain Roomberg (argued), San Antonio, TX, for U.S.

Franklin H. McCallum (argued), Midland, TX, for Lewis.

Rosendo Torres, Torres & Torres, Midland, TX, for Charles Samson.

Grayson Kirk Meade, Meade & Nehring Law Office, Alpine, TX, for Wren.

Thomas L. Wright, El Paso, TX, for Tucker.

Dusty Gallivan (argued), Gallivan & Associates, Odessa, TX, for Thompson.

David Glenn Rogers, Midland, TX, for Martin.

Arvel Rodolphus Ponton, III (argued), Law Office of Ron Ponton, Alpine, TX, for Ford.

Stephen W. Spurgin, Marfa, TX, for Griffith.

Carolyn Day Thurmond (argued), Midland, TX, for Beason.

Robert Victor Garcia, Jr., Odessa. TX, for Shane Samson.

Appeals from the United States District Court for the Western District of Texas.

Before JONES, Chief Judge, and REAVLEY and PRADO, Circuit Judges.

PRADO, Circuit Judge:

Following a three-week trial, a jury convicted Donnie Thompson ("Thompson"), Michael Norris Martin ("Martin"), Buddy Ford ("Ford"), Leonard Duane Griffith ("Griffith"), Jerry Wayne Beason ("Beason"), and Shane Samson of conspiracy to manufacture and distribute over fifty grams of methamphetamine or 500 grams of a substance or mixture containing methamphetamine, in violation of 21 U.S.C. § 846. The same jury convicted Michael Curtis Lewis ("Lewis"), Charles Samson, Malachi David Wren ("Wren"), and Victor Wesley Tucker ("Tucker") of that offense and of a continuing criminal enterprise involving more than 15,000 grams of methamphetamine, in violation of 21 U.S.C. § 848. Now these defendants appeal, raising various objections to their convictions and sentences.

I. FACTUAL AND PROCEDURAL BACKGROUND

On March 17, 2004, the grand jury sitting in the Midland-Odessa Division of the Western District of Texas returned an indictment against twenty-eight individuals for methamphetamine-related offenses. Eighteen of these individuals pleaded guilty. The ten defendants named above pleaded not guilty, and the case proceeded to trial. Jury selection was held on June 28, 2004, and the trial took place from June 28 to July 19, 2004.

At trial, the government attempted to prove a large methamphetamine conspiracy centered on the Aryan Circle gang. The Aryan Circle is a prison-based organization with a white-supremacist ideology. Its members are, in theory, ranked according to a militaristic hierarchy; membership may be maintained inside and outside prison, though rank does not necessarily carry over from one realm into the other. Most, though not all of the defendants were members of the Aryan Circle. The government's proof was designed to show that the Aryan Circle, led by Lewis, Charles Samson, Wren, and Tucker, succeeded in dominating the methamphetamine trade in and around Odessa, Texas. Law enforcement officers and the cooperating witnesses testified to the methamphetamine-related activities of the Aryan Circle members and their associates, including the gathering by legal and illegal means of methamphetamine "precursors," such as cold medicines, batteries, and anhydrous ammonia; the manufacture, or "cooking," of methamphetamine; and the sale and use of methamphetamine-containing substances.

The jury found each defendant guilty of the charges against him. The defendants moved unsuccessfully for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. Lewis, Charles Samson, Wren, and Tucker were each sentenced to life in prison, the mandatory term under the continuing criminal enterprise conviction; the court ordered no sentence for these defendants' conspiracy convictions because conspiracy is a lesser included offense of continuing criminal enterprise. The district court sentenced Griffith to thirty years in prison, Martin to 210 months in prison, Beason to 130 months in prison (the sentence was subsequently reduced to 120 months), Thompson to 189 months in prison, Ford to 324 months in prison, and Shane Samson to 156 months in prison for their conspiracy convictions.

II. JURISDICTION

These are direct appeals from a final judgment of the United States District Court, which has jurisdiction over all offenses against the United States. This court has jurisdiction pursuant to 28 U.S.C. § 1291.

III. DISCUSSION

A. Continuing Criminal Enterprise

Lewis, Charles Samson, Wren, and Tucker challenge their convictions for a continuing criminal enterprise involving more than 15,000 grams of a substance containing methamphetamine. To establish a continuing criminal enterprise, the government must prove that (1) the defendant organized, supervised, or managed at least five persons¹ (2) in a continuing series of drug violations (3) from which the defendant received substantial income. See 21 U.S.C. § 848(c); United States v. Bass, 310 F.3d 321, 325-26 (5th Cir.2002). Section 848 is "designed to apply to leaders of large-scale narcotics operations." Bass, 310 F.3d at 326.

Most significant to these appeals is the first element: that of organizing, supervising, or managing at least five persons in the drug trade. This court has stated that "[t]he terms `organized,' `supervised,' and `managed' are not words of art and should be interpreted according to their every day meanings." United States v. Gonzales, 866 F.2d 781, 784 (5th Cir. 1989). Several other circuits have held that the term "organizer" as used in § 848 implies a person who exercises some degree of managerial authority, rather than one who merely coordinates various players. See, e.g., United States v. Lindsey, 123 F.3d 978, 986-87 (7th Cir.1997); United States v. Williams-Davis, 90 F.3d 490, 508-09 (D.C.Cir.1996); United States v. Witek, 61 F.3d 819, 822-24 (11th Cir.1995); United States v. Jerome, 942 F.2d 1328, 1331 (9th Cir.1991). This circuit has not had occasion to decide this precise question. See United States v. Garcia Abrego, 141 F.3d 142, 167 n. 11 (5th Cir.1998) (acknowledging the law in these other circuits but stating that the court need not then decide the question). This court has, however, held that without additional indicia of control, a mere buyer-seller relationship is insufficient to establish liability under § 848. Bass, 310 F.3d at 327. We cited the Eleventh Circuit's explanation that "a contrary interpretation would do violence to the common-sense meaning of the words `organizer' and `supervisor' and extend 848's reach beyond the scope Congress intended." Id. at 327-28 (citing Witek, 61 F.3d at 822). We also commented that our holding was consistent with the rule of lenity applied where a criminal statute's terms are ambiguous. Bass, 310 F.3d at 328 n. 27. This holding in Bass supports the principle that "organizer" within the meaning of § 848 requires indicia of control or authority.

Lewis, Charles Samson, Wren, and Tucker each argue that the evidence at trial was legally insufficient to prove the elements of continuing criminal enterprise. This opinion examines in turn the merits of their arguments.

1. Standard of Review

Where, as here, a defendant objected to the sufficiency of the evidence at the trial level, the well-established standard of review is whether a reasonable jury could find that the evidence establishes the guilt of the defendant beyond a reasonable doubt. United States v. Menesses, 962 F.2d 420, 426 (5th Cir.1992). We view the evidence in the light most favorable to the government and give the government the benefit of all reasonable inferences and credibility choices. United States v. Harvard, 103 F.3d 412, 421 (5th Cir.1997).

2. Lewis

Lewis contends that the government's proof at trial failed to demonstrate that he had sufficient control over any of the participants on the Odessa drug trade so as to make him a leader, organizer, or manager of a continuing criminal enterprise. We agree that the government's evidence falls short of satisfying the first element of a continuing criminal enterprise: that the defendant organized, supervised, or managed at least five persons in the drug trade. The government appears to have capitalized on the facts that Lewis co-founded the Aryan Circle Odessa Chapter in 1997 and held the exalted title of "District Captain" within that chapter. But these facts do not prove that Lewis was a leader or organizer of the methamphetamine trade in which many Aryan Circle members were, without question, involved. Lewis was incarcerated throughout the majority of the period covered by the indictment.² With a few exceptions, references to Lewis in the trial testimony relate only to his use of methamphetamine, not to a role as an organizer of the methamphetamine trade.

The government points to several pieces of evidence as satisfying the first element of continuing criminal enterprise. First, the government claims that Curtis Perkins ("Perkins") testified at trial that Lewis recruited him to participate in the methamphetamine trade in Odessa. The claim that Lewis "recruited" Perkins to join the methamphetamine trade stems from a single conversation that Lewis had with Perkins while both were in prison and Perkins was preparing to leave. Lewis allegedly told Perkins that Perkins could get involved with the methamphetamine trade in Odessa, where the Aryan Circle had the trade "pretty well locked up," and that Perkins could parole to Lewis's ex-wife's home. This testimony does not establish that Lewis supervised, managed or otherwise exerted control over Perkins, merely that he gave him information and advice.

The government also points to Perkins' testimony...