United States v. Jones

• Decision Date: 22 March 2012
• Docket Number: No. 10–1894.,10–1894.
• Citation: 674 F.3d 88
• Parties: UNITED STATES of America, Appellee, v. Leonard JONES, a/k/a Tony, Shy, Shyheem, Anthony James, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

674 F.3d 88

UNITED STATES of America, Appellee,

v.Leonard JONES, a/k/a Tony, Shy, Shyheem, Anthony James, Defendant, Appellant.

No. 10–1894.

United States Court of Appeals, First Circuit.

Heard Feb. 7, 2012.Decided March 22, 2012.

John T. Ouderkirk, Jr., by appointment of the court, for appellant.

Margaret D. McGaughey, Appellate Chief, with whom Thomas E. Delahanty II, United States Attorney, was on brief for appellee.

Before TORRUELLA, Circuit Judge, SOUTER,^* Associate Justice, and BOUDIN, Circuit Judge.BOUDIN, Circuit Judge.

Leonard Jones was convicted of conspiring to possess with intent to distribute cocaine, cocaine base and ecstasy, 21 U.S.C. §§ 841(a), 846 (2006). Due to his prior state drug possession convictions, Jones was sentenced to life in prison under statutorily enhanced penalty provisions. Id. § 841(b)(1)(A). He appeals both his conviction and his sentence, raising myriad procedural and constitutional claims.

Jones was indicted in May 2009 for the conspiracy offense. On April 12, 2010, the day of opening arguments in Jones' trial before an empaneled jury, the government filed a notice, pursuant to 21 U.S.C. § 851, seeking enhanced penalties due to the prior drug convictions. Although notice is ordinarily due before jury selection, Prou v. United States, 199 F.3d 37, 48 (1st Cir.1999), the requisite timing here was affected by earlier plea negotiations discussed later in the decision.

The bulk of the government's evidence at trial, directly relevant to the sufficiency claim advanced on this appeal, was from five co-conspirators of Jones' who lived in Maine, all of whom had entered plea agreements for reduced sentences in exchange for their testimony against Jones. If believed by the jury, the testimony of the co-conspirators and other witnesses (primarily government agents) together with some other evidence established the following:

-that one of the co-conspirators had met Jones in Georgia through a mutual acquaintance; in late 2005 this co-conspirator invited Jones to visit him in Maine, citing the greater profit to be made selling drugs in Maine than in Georgia. Jones agreed and arrived in Maine several days later with packaged bags of cocaine;

-that thereafter Jones traveled frequently between his home in Georgia and the area around Lewiston, Maine, between 2005 and 2008, usually staying in Maine for several days at a time; that his travel was corroborated at trial by cell phone and airline records; and that evidence indicated that Jones made approximately ten trips between Georgia and Maine;

-that Jones' contacts in Maine expanded after his initial trip; that these individuals—indicted as well and testifying against him at trial—would to varying degrees sell the drugs he brought, let Jones use their apartments as bases of operation, and in some cases travel themselves to Georgia at Jones' request to assist him in bringing drugs back to Maine;

-that in June 2006, Jones was arrested in Maine after a routine traffic stop, and was found to possess several cell phones in his car, $100 in his hat, $1,000 in one of his pockets and $535 in the other, and $750 in one of his socks; and

-that in 2008, when federal agents began speaking with several of Jones' contacts, Jones directed one of his co-conspirators—a recording of the call was offered at trial—to find out who was cooperating and to “go guns their ass out.” (Jones later testified that this was a joke.)

In his defense at trial, Jones' lawyer called two federal agents and, apparently seeking to impeach the prior testimony of some of the co-conspirators, asked briefly about their involvement with Jones' co-conspirators. Jones also testified at trial, claiming that his visits to Maine were prompted by social relationships; that his income was derived from a car wash business and dog breeding in Georgia; and that his rental in late 2007 of an apartment in Maine was aimed at bringing a lady friend to live in Maine.

The trial lasted three days and ended when the jury returned a guilty verdict after deliberating for about five hours. Three months later, Jones was sentenced to life imprisonment, a sentence the judge found to be required in light of the prior drug felonies established at sentencing and the enhanced penalty provision invoked by the government. This appeal followed.

Jones' first challenge to his conviction is to the sufficiency of the evidence, posing the question whether a rational factfinder could find guilt beyond a reasonable doubt. United States v. Cruz–Rodríguez, 541 F.3d 19, 26 (1st Cir.2008), cert. denied, 555 U.S. 1144, 129 S.Ct. 1017, 173 L.Ed.2d 306, and cert. denied, ––– U.S. ––––, 129 S.Ct. 1923, 173 L.Ed.2d 1070 (2009). He preserved this claim, moving for acquittal after the prosecution's opening case and renewing the motion at the close of the trial. Our review is de novo, but the trial evidence is considered “in the light most favorable to the prosecution.” Id. So viewed, we conclude that the jury had a rational basis for its guilty verdict.

Given the conjoined testimony of five co-conspirators and the limited explanations given by Jones, the case against him might seem clearly ample. True, no drugs were seized from him; and the co-conspirator testimony against him was likely secured by prospects of leniency for the witnesses (a fact the jury was made aware of). But witness credibility is normally a call for the jury, and the co-conspirator testimony was from multiple witnesses and dovetailed with the travel records and phone call recording.

Jones' brief does not directly dispute that he could be found to have supplied drugs with some regularity to the co-conspirators and that some of them in turn sold and gave such drugs to others. So the evidence amply made out relationships between Jones and several co-conspirators that could easily be viewed as a conspiracies to distribute. Jones' complaint that there was no showing of a “common purpose” between the conspirators is perhaps more charitably read as a claim that he was charged and convicted of one overall conspiracy when, on the evidence accepted by the jury, only several smaller ones were proved.

True enough, a verdict may be vulnerable if one conspiracy is charged in the indictment but the evidence is sufficient to constitute proof only of a different conspiracy (or several of them). See United States v. Dellosantos, 649 F.3d 109, 116–17 (1st Cir.2011). The reasons relate to the constitutional pre-condition of a grand jury indictment and to the indictment's notice of the offense charged. Id. And, in practical terms, the prosecution secures several familiar advantages in charging a large conspiracy rather than a smaller one or even several smaller ones.¹

Accordingly, a common claim on appeal in federal drug conspiracies is that the defendant was a member (at most) only of another conspiracy—usually a smaller one—than the one charged in the indictment under which he was convicted. See 40 Geo. L.J. Ann. Rev. Crim. Proc. 309–10 (2011) (citing cases). The law developed under this heading is complicated and presents a range of issues; but, where as here the legal offense—here, conspiracy to possess with intent to distribute—is the same for the larger and smaller conspiracy, id., the conviction is safe if the jury could rationally conclude from the evidence that the relationship among the participants was that of the single conspiracy charged.

Here, to find the single conspiracy charged, the jury had to infer from the acts and statements of the witnesses a single ongoing “agreement” that embraced Jones and other co-conspirators. It would be enough, under the criteria developed by the courts, United States v. Niemi, 579 F.3d 123, 127 (1st Cir.2009), cert. denied, ––– U.S. ––––, 130 S.Ct. 1912, 176 L.Ed.2d 385 (2010), for the jury to find that the local co-conspirators were aware generally that a common, large scale conspiracy existed with Jones at the center, that its operation depended on the co-operation of all, and that the co-conspirators knowingly associated with and adhered to it.

Some of the evidence pointed to by the government—for example, that the modus operandi for the various transactions was similar—is as consistent with a multiple conspiracy story as with a single conspiracy; and Jones' brief ably argues that in a small community the fact that the alleged co-conspirators tended to know each other does not prove a single conspiracy. But evidence also indicated that various co-conspirators knew that Jones was supplying others among them, that some of the co-conspirators would retrieve drugs or money from each other at Jones' direction, and Jones' ability to maintain a flow of drugs was arguably enhanced by his control of the larger enterprise.

This is the classic model of the hub-and-spoke conspiracy, Niemi, 579 F.3d at 127, and, although the present facts are not the most powerful example one can imagine for the single conspiracy finding, this is a factual issue left to the jury in close cases. See United States v. Mangual–Santiago, 562 F.3d 411, 421 (1st Cir.), cert. denied, ––– U.S. ––––, 130 S.Ct. 293, 175 L.Ed.2d 196 (2009). Moreover, the concern about injustice is, for obvious reasons, greater when the defendant is a putative small fry member rather than the demonstrated head of an enterprise. Cf. United States v. Richardson, 532 F.3d 1279, 1288 (11th Cir.2008), cert. denied, 555 U.S. 1120, 129 S.Ct. 950, 173 L.Ed.2d 146 (2009).

The remaining issues concerning Jones' conviction are readily dispatched. Jones points to multiple statements in the prosecutor's closing argument that he says created a threat of unfair prejudice because they injected extrinsic facts and potentially confused the jurors about the burden of proof and elements of the crime. Specifically, Jones highlights the following statements:

-Following a summary of the evidence of Jones' travel between Maine and Georgia: “Who travels like this? Why does one travel like...