U.S. v. Spencer, 09-1196.
| Decision Date | 21 January 2010 |
| Docket Number | No. 09-1196.,No. 09-1197.,09-1196.,09-1197. |
| Citation | 592 F.3d 866 |
| Parties | UNITED STATES of America, Appellee, v. Antwoyn Terrell SPENCER, Appellant. United States of America, Appellee, v. Derrick Jerome Spencer, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Daniel W. Schermer, argued, Minneapolis, MN, for Appellant, Antwoyn Terrell Spencer.
Richard S. Virnig, argued, Minneapolis, MN, for Appellant, Derrick Jerome Spencer.
Jeffrey S. Paulsen, U.S. Attorney's Office, argued, Minneapolis, MN, for Appellee.
Before COLLOTON, BEAM, and BENTON, Circuit Judges.
Antwoyn Terrell Spencer and Derrick Jerome Spencer were tried together in district court1 on charges of cocaine distribution. The jury convicted Antwoyn of conspiracy to distribute cocaine, attempted possession with intent to distribute it, and money laundering. The jury convicted Derrick of conspiracy to distribute cocaine, and two counts of distributing it. The brothers appeal, alleging trial and sentencing error. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
On May 21, 2007, a grand jury indicted four defendants: brothers Antwoyn, Derrick, and Frederick Spencer, and Jovan Gentle. Frederick Spencer was acquitted. Jovan Gentle, a seller for Antwoyn and Derrick, was a fugitive at the time of trial.
A. The conspiracy to distribute cocaine
Count 1 charges that Antwoyn, Derrick, and Jovan Gentle "knowingly and intentionally conspired with each [other] and with others to distribute" cocaine and crack cocaine.
The government offered testimony of several co-conspirators, including Jermaine Richardson and Vontrell Williams. Richardson testified that for two years, he and Derrick sold cocaine and crack regularly. Richardson indicated that Derrick got the drugs from his brother Antwoyn. Richardson's testimony included this exchange Q. During the period of 1998 on until your arrest [in June 2006], how much time did you spend with Derrick?
A. At first really not too much, but probably like the last two years or year and a half of that, I spent a lot of time with him.
Q. And the last two years, that's when you were getting those big amounts from Antwoyn Spencer?
A. Yeah.
Q. And were you out on the streets selling those amounts?
A. Was I?
Q. Well, breaking it down and selling it in smaller amounts?
A. Yeah, that's how I sold it, in smaller amounts.
Q. And did you ever ride around and do that same thing with Derrick?
Co-conspirator Williams testified that from 1998 to 2001, he ordered about 80 kilograms of cocaine from Antwoyn, and that Derrick frequently delivered the drugs on Antwoyn's behalf. He further testified that after getting out of prison in April 2005, he started getting cocaine from Antwoyn again.
The government also cited the interrupted delivery by John Nguyen to Antwoyn, discussed below, as evidence of the drug conspiracy.
The jury received conspiracy instructions tracking Eighth Circuit Model Criminal Jury Instruction § 5.06A-B, and convicted Antwoyn and Derrick on the conspiracy count.
Police arrested John Nguyen in Wichita, Kansas, after seizing eight kilograms of cocaine at a traffic stop. Nguyen told police he was a mule regularly delivering cocaine from Texas to Antwoyn in Minnesota, and that the seized cocaine was on its way to Antwoyn. About 14 hours after Nguyen's arrest (and two hours after Nguyen would have delivered the load), Nguyen's cell phone received a call from Antwoyn's number. No one answered.
Nguyen testified against Antwoyn at trial. He stated that he had delivered, or attempted to deliver, 32 kilograms of cocaine to Antwoyn between early 2006 and his arrest on August 15, 2006. The government offered evidence to corroborate Nguyen's testimony. First, at the time of the Wichita stop, Nguyen had multiple phone numbers for Antwoyn stored in two cell phones. The government established a calling history between the Spencers and Nguyen, which included a call Nguyen received, two days before his arrest, from a phone traced back to Derrick. Second, the eight kilograms of cocaine seized at Wichita were distinctively packaged like a kilogram of cocaine seized from Jermaine Richardson two months earlier. Third, according to other cooperating witnesses, Antwoyn's cocaine source in the summer of 2006 was an Asian male from Texas.
Jovan Gentle, cooperating with law enforcement, made two controlled purchases of powder cocaine from Derrick. Each time, he wore a transmitting device. Gentle subsequently disappeared and was a fugitive at the time of trial (following the trial, he was caught, pled guilty, and sentenced). The government proved the two transactions by two types of evidence: the tape-recorded conversations between Derrick and Gentle, and observations of surveillance officers.
Before buying a home in Brooklyn Park, Minnesota, in 2005, Antwoyn gave cash to third parties in exchange for checks, which he deposited in his bank account. He also deposited $4,000 cash there. Antwoyn then used funds from this account to buy a cashier's check for $22,900, which he presented at closing. Antwoyn purchased the home in his own name.
IRS Special Agent Daniel Nye testified that his analysis excluded any legitimate funds as sources of the money for the home purchase. Antwoyn did not object to Nye's testimony.
During opening statements, counsel for Frederick Spencer stated to the jury:
Fred Spencer is accused of two counts of money laundering. The Government will tell you that he [Frederick] is involved with his brothers Antwoyn and Derrick in this alleged drug trafficking ring and that he is allowing some of their drug proceeds to flow to his business.
You will hear another story from Fred Spencer, however. You will hear directly from Fred Spencer. He has always been cooperative. He's not going to hide behind the Fifth Amendment.
Antwoyn and Derrick objected. The court gave the jury the following curative instruction, to which all parties agreed:
[Counsel for Frederick Spencer] has acknowledged that [his] statement was an inadvertent mischaracterization of the law, and you may not consider it in your deliberations. Please keep in mind that the defendant in a criminal case has an absolute right under the United States Constitution not to testify. The fact that a defendant does not testify cannot be discussed or considered by the jury in any way when you are considering and arriving at your verdict. But keep in mind that no inference of any kind may be drawn from the fact that other defendants may or may not decide to exercise their privilege under the constitution and not testify.
Frederick was acquitted and is not party to this appeal.
The district court agreed with the drug quantities recommended in the presentence reports, finding Antwoyn responsible for 213.4 kilograms of cocaine and 56.6 kilograms of crack cocaine (1,174,680 kilograms of marijuana equivalency), and Derrick responsible for 677.52 grams of cocaine and 13.3 kilograms of crack cocaine (266,135.5 kilograms of marijuana equivalency). These quantities were "based on the testimony of trial witnesses." With respect to Antwoyn, the district court reviewed "the trial transcript in preparation for sentencing — with particular attention to the testimony of Vontrell Williams, Yama Tunson, Oliver Scott, and Jermaine Richardson" and concluded "the quantities suggested by these witnesses were proven by a preponderance of the evidence." With respect to Derrick, the district court reviewed "the trial transcript in preparation for sentencing — with particular attention to the testimony of Vontrell Williams" and concluded "the quantities suggested by these witnesses were proven by a preponderance of the evidence."
The district court sentenced Antwoyn to concurrent 324 month terms on two counts — conspiracy, and attempted possession with intent to distribute cocaine. It also imposed a concurrent sentence of 240 months on the money-laundering count.
The district court sentenced Derrick to 292 months on the conspiracy count and a concurrent 240 months on the distribution counts.
A. The conspiracy to distribute cocaine
Antwoyn and Derrick contest their conspiracy convictions, arguing: (1) the conspiracy instructions impermissibly amend the conspiracy charged in the indictment, and (2) the government failed to prove that either Antwoyn or Derrick acted to further the conspiracy within the five-year statute of limitations.
Antwoyn and Derrick argue that the district court's jury instructions 20 and 21, which track Eighth Circuit Model Criminal Jury Instruction § 5.06A-B, constructively amend the indictment. A constructive amendment of an indictment occurs when jury instructions broaden the scope of an indictment by permitting a conviction for an uncharged offense. See United States v. Griffin, 215 F.3d 866, 868-69 (8th Cir.2000); United States v. Begnaud, 783 F.2d 144, 147 (8th Cir.1986).
Ordinarily, this court reviews jury instructions de novo. But here, both defendants acknowledge that they never objected to the instructions below, and thus review is for plain error. See United States v. Smith, 450 F.3d 856, 859 (8th Cir.2006); United States v. Gavin, 583 F.3d 542, 546-47 (8th Cir.2009).
Count 1 charges that Antwoyn, Derrick, and Gentle "knowingly and intentionally conspired with each [other] and with others to distribute" cocaine and crack cocaine. Jury instruction 20 states that one essential element of conspiracy is that "two or more persons reached an agreement or came to an understanding to distribute cocaine or crack cocaine." Jury instruction 21 states in relevant part:
The prosecution must prove that each of the defendants charged...
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