U.S. v. Jenkins

• Decision Date: 31 May 1990
• Docket Number: No. 87-1797,87-1797
• Parties: 30 Fed. R. Evid. Serv. 536 UNITED STATES of America, Plaintiff-Appellee, v. Keith Lynn JENKINS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 549

904 F.2d 549

30 Fed. R. Evid. Serv. 536

UNITED STATES of America, Plaintiff-Appellee, v. Keith Lynn JENKINS, Defendant-Appellant.

No. 87-1797.

United States Court of Appeals, Tenth Circuit.

May 31, 1990.

Vicki Mandell-King, Asst. Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on the brief), Denver, Colo., for defendant-appellant.

Wayne T. Dance, Asst. U.S. Atty. (Brent D. Ward, U.S. Atty., with him on the brief), Salt Lake City, Utah, for plaintiff-appellee.

Before HOLLOWAY, Chief Judge, SEYMOUR, Circuit Judge, and BROWN, ^* District Judge.

SEYMOUR, Circuit Judge.

In a joint trial, Keith Lynn Jenkins was convicted of multiple counts of possession with intent to distribute and distribution of cocaine and marijuana, 21 U.S.C. Sec. 841(a)(1) (1988) and 18 U.S.C. Sec. 2 (1988); one count of conspiracy to possess and distribute controlled substances, 21 U.S.C. Sec. 846 (1988); multiple violations of the Travel Act, 18 U.S.C. Sec. 1952 (1988); one count of engaging in a continuing criminal enterprise, 21 U.S.C. Sec. 848 (1988); several counts of distribution of a controlled substance to a person less than twenty-one years of age, 21 U.S.C. Sec. 845 (1988); and four counts of income tax evasion, 26 U.S.C. Sec. 7206(1) (1988). Criminal forfeiture orders were obtained against Jenkins' property in the same proceeding under 21 U.S.C. Sec. 853 (1988). We are not persuaded by the various issues Jenkins raises on appeal, and we therefore affirm his conviction on all counts.

I. BACKGROUND

This case involves a large Utah-based cocaine and marijuana distribution network. Jenkins was originally named in a ninety-two count indictment which charged six defendants with conspiracy, multiple substantive drug violations, and a variety of associated crimes. The government filed a ninety-six count superseding indictment which added tax evasion charges against Jenkins. Among the numerous charges, count one alleged a single conspiracy by Jenkins and the other five defendants to possess and distribute controlled substances, and count two charged Jenkins with a managerial, supervisory or organizer's role in concert with at least five other persons, as part of a continuing criminal enterprise. See 21 U.S.C. Sec. 848.

Two of the six defendants pled guilty before trial, and the four remaining defendants began trial before one jury. Two weeks into trial, the attorney for defendant Michael Patrick Doran became sick and a mistrial was declared as to Doran. ¹ The substantive criminal counts and the criminal forfeiture actions against Jenkins, Craig William McLachlan, and James Arthur Mann went to the jury.

The evidence against Jenkins at trial consisted primarily of the testimony of lesser participants in the drug distribution system who testified in exchange for grants of immunity. Jenkins did not testify. The government's proof established generally that from approximately 1980 through 1983, Jenkins regularly imported or obtained delivery in Utah of shipments of up to 150 pounds of marijuana, usually purchased from co-defendant Michael Doran in Arizona. Jenkins would distribute this marijuana to or through various smaller-scale wholesalers and retailers in the Salt Lake City and Utah County area. In addition, Jenkins would import or obtain delivery of cocaine, in quantities of one-quarter pound up to three kilograms. Jenkins often purchased and distributed this cocaine for resale in partnership with co-defendant Craig McLachlan, at least until an apparent "rift" developed between them in October 1981. Profits from these sales were invested into real estate, aircraft, businesses, money market funds, and bank accounts. These assets were the subject of the criminal forfeiture proceedings held jointly with the trial on the substantive criminal charges. Jenkins did not object to the unitary treatment of the substantive criminal counts and the forfeiture actions.

The jury found Jenkins guilty of the great majority of the counts against him. Forfeiture orders were entered against him contemporaneously with the return of the verdict on the criminal counts. Jenkins was sentenced to twenty years on the continuing criminal enterprise conviction, and the sentence on the conspiracy charge was vacated as a lesser included offense. The sentences imposed on the various substantive drug charges were to run concurrently, while a three-year tax evasion sentence was to run consecutively.

On appeal, Jenkins asserts insufficient evidence to convict on the continuing criminal enterprise count, a variance between the conspiracy charge and the proof of conspiracy at trial, improper introduction of prejudicial and irrelevant evidence and of other wrongful acts under Fed.R.Evid. 404(b), erroneous denial of a severance motion, improper use of a Fed.R.Crim.P. Rule 16(d)(2) sanction resulting in inability to use a prior inconsistent statement to impeach, failure to bifurcate the forfeiture proceedings from the guilt phase of Jenkins' criminal trial, and grand jury abuse.

II.

A. Continuing Criminal Enterprise

Jenkins argues that the jury had insufficient evidence to convict him on the continuing criminal enterprise charge. Evidence is sufficient to support a criminal conviction if, viewing all the evidence most favorably to the prosecution, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Apodaca, 843 F.2d 421, 425 (10th Cir.) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)), cert. denied, 488 U.S. 932, 109 S.Ct. 325, 102 L.Ed.2d 342 (1988).

Conviction on a continuing criminal enterprise charge requires (1) a felony violation of a drug law contained in the Controlled Substance Act, 21 U.S.C. Secs. 801 et seq. (1988); (2) constituting part of a continuing series of such violations; (3) undertaken in concert with five or more other persons; (4) with respect to whom [the defendant] occupies a position of organizer, supervisor, or any other position of management; and (5) from which [the defendant] obtains substantial income or resources. See 21 U.S.C. Sec. 848(c) (1988); see also United States v. Hall, 843 F.2d 408, 410 (10th Cir.1988). ² Jenkins maintains that it was he who took orders from most of the persons with whom he was involved, and that the evidence does not enable one to specify five persons over whom he exercised the requisite managerial, supervisory, or organizing authority. We disagree.

The statutory terms "organizer," "manager," and "supervisor" have nontechnical, "everyday meanings." See Apodaca, 843 F.2d at 425-26; United States v. Dickey, 736 F.2d 571, 587 (10th Cir.1984), cert. denied, 469 U.S. 1188, 105 S.Ct. 957, 83 L.Ed.2d 964 (1985). Section 848's use of the indefinite article when describing "a position of organizer" or "a supervisory position or any other position of management" contemplates that a given network may have many persons in authority. Thus, the defendant need not be the dominant organizer or manager of the enterprise; he need only occupy some managerial position with respect to five or more persons. See Apodaca, 843 F.2d at 426 (citing cases). Moreover, "[t]he defendant's relationships with the other persons need not have existed at the same time, the five persons involved need not have acted in concert at the same time or with each other, and the same type of relationship need not exist between the defendant and each of the five." Id. While proof of a buyer-seller relationship alone is insufficient to establish a managerial role, id., additional evidence of formal or informal authority or responsibility respecting a purchaser's conduct may suffice, see United States v. Jones, 801 F.2d 304, 309-10 (8th Cir.1986) (requisite role evidenced by setting terms and method of transaction, directing wholesale purchaser as to manner of sale, furnishing financial and legal help, and supplying directions and/or training to subordinate wholesalers); see also United States v. Ray, 731 F.2d 1361, 1367 (9th Cir.1984) (not necessary to show defendant is able to control those whom he or she organizes).

In the present case, the evidence reflects that Jenkins participated at different times as a partner, rival, or arguably even as a subordinate of persons with whom he did business. But simply because Jenkins was not the "king pin" does not mean that he did not have his share of minions. Cf. United States v. Becton, 751 F.2d 250, 255 (8th Cir.1984) (irrelevant that defendant is subject to supervision of superiors), cert. denied, 472 U.S. 1018, 105 S.Ct. 3480, 87 L.Ed.2d 615 (1985).

Kim Barker and Dale Lowder, for example, sometimes helped Jenkins store large quantities of marijuana at their home in exchange for a discount on the drug, see rec., vol. 13, at 45-54, and helped Jenkins obtain a drug delivery, see id. at 205-07. Jenkins regularly fronted them drugs, see id. at 65-78, 81-84, threatened their children when payment was late, see id. at 216, made Lowder quit-claim his house as security, see id. at 135-37, and directed when and how to make payment, see id. at 152. Finally, Jenkins told Lowder to whom not to sell. See id. at 210-11.

Curtis Slack helped broker several of Jenkins' cocaine purchases in Florida. See rec., vol. 16, at 518-35, 553-67. Most importantly, Slack couriered the drug for Jenkins from Florida to Utah, see id. at 579-82, after following Jenkins' instructions on how to package it, see id. at 560. Finally, Jenkins bailed Slack out of jail after his arrest for couriering the drugs. See id. at 596.

Brian Smith obtained marijuana from Jenkins on credit. He couriered Jenkins' purchases of marijuana from Arizona to Utah, see rec., vol. 23, at 1680-83, and would then store the marijuana for Jenkins at his home. Guy Robertson acted as Jenkins' agent in marijuana transactions in Jenkins' absence. See rec., vol. 23, at 1533, 1599. Finally, Wendell and Sherry Olsen...