U.S. v. Raymer

• Decision Date: 24 July 1991
• Docket Number: No. 89-6362,89-6362
• Citation: 941 F.2d 1031
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Samuel Scott RAYMER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1031

941 F.2d 1031

UNITED STATES of America, Plaintiff-Appellee, v. Samuel Scott RAYMER, Defendant-Appellant.

No. 89-6362.

United States Court of Appeals, Tenth Circuit.

July 24, 1991.

Richard M. Wintory, Sp. Asst. U.S. Atty. and Timothy D. Leonard, U.S. Atty., Oklahoma City, Okl., for plaintiff-appellee.

Scott M. Anderson, Dallas, Tex., for defendant-appellant.

Before McKAY, ANDERSON and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.

By superseding indictment, defendant-appellant Samuel Scott Raymer was indicted in eight of ten counts of an indictment charging, in pertinent part, seven defendants with various offenses arising out of the alleged distribution of the drug methylenedioxymethamphetamine or MDMA. Defendant also was charged with conspiracy to distribute cocaine. After a jury trial, defendant was convicted on seven counts: (1) counts four, five and seven, introducing a misbranded drug into interstate commerce with the intent to mislead or defraud, 21 U.S.C. §§ 331(a) & 333(a)(2), ¹ on or about January 1986, April 1986 and April 1987, respectively; 2) count one, conspiracy to commit this offense from June 1985 to April 1987, 18 U.S.C. § 371; 3) count eight, distribution of MDMA, a Schedule I controlled substance analogue, 21 U.S.C. §§ 813, 841(a)(1), on or about April 11, 1987; 4) count two, conspiracy to commit this offense, 21 U.S.C. §§ 813, 841(a)(1), 846, from October 24, 1986 to April 1987; and 5) count three, conspiracy to possess with intent to distribute and distribution of cocaine, a Schedule II controlled substance, 21 U.S.C. §§ 841(a)(1), 846, from June 1985 to April 11, 1987.

These offenses predated the Sentencing Guidelines, which apply only to offenses committed after November 1, 1987. See United States v. Williams, 897 F.2d 1034, 1040 (10th Cir.1990). Defendant therefore was sentenced in accordance with pre-Guidelines law. On the MDMA misbranding convictions (counts one, four, five and seven) defendant was sentenced to a term of two years. On the convictions for conspiracy to distribute MDMA and distribution of MDMA, a controlled substance analogue, (counts two and eight), and the conviction for conspiracy to possess with intent to distribute cocaine and distribution of cocaine (count three), defendant was sentenced to five years. The sentences on all counts ran concurrently. Additionally, on count three, defendant received a six-year supervised release term with mandatory participation in a drug aftercare program.

MDMA became subject to federal controlled substance penalties as a controlled substance analogue on October 27, 1986. See United States v. Mitcheltree, 940 F.2d 1329, 1335-1336 (10th Cir.1991). Before and after October 27, 1986, defendant supervised a large MDMA distribution network in Texas and Oklahoma. Defendant initially traveled via commercial airline from Texas, where he resided, to Oklahoma and concealed the MDMA tablets on his person or in his personal belongings. Rec. supp. vol. III at 99. When in Oklahoma City, he then consigned or sold large quantities of MDMA tablets to other drug dealers including Lance Miller. Miller testified that he purchased 100 to 250 MDMA tablets per week for resale and estimated that defendant distributed as many as 2,000 MDMA tablets per week. Id. at 94-95.

In October 1985, defendant was arrested in an undercover buy operation at Dallas Love Field, en route to Oklahoma City. Id. supp. vol. IV at 232, 244. The Dallas police obtained search warrants and found 2,450 unlabeled MDMA tablets in an airport locker and in defendant's carry-on luggage. Id. at 232. Defendant pled guilty in Texas state court and received a sentence of ten years probation for his delivery of MDMA. Rec. supp. vol. XII, doc. 22 at 2 (citing Texas v. Raymer, Nos. F-85-92267-S & F-85-91340-NS (Dallas County, Tx.D.Ct. (282nd Jud.Dist.) Sept. 2, 1986)).

Defendant also possessed and distributed cocaine. Danny Gile testified that between August 1985 and March 1986, he saw defendant with over an ounce of cocaine. Rec. supp. vol. V at 707. Defendant offered to sell Gile cocaine. Id. at 696. Gile tried some, but did not purchase any because he had another supplier. Id. at 696-97. Gile also saw the defendant with a briefcase containing cash and a revolver. Id. at 691. In October 1985, defendant hosted a football party at his Texas home and provided MDMA and cocaine for his guests. Id. supp. vol. IV at 161-62; supp. vol. III at 637.

After his first arrest in October 1985, defendant was apprehensive about using the commercial airlines in connection with his MDMA distribution. He therefore obtained a new vehicle and began driving from Dallas to Oklahoma City because it entailed less chance of being caught with the contraband. Id. supp. vol. V at 450. While in Oklahoma City, he stayed with Kevin Volk and JoAnn Mitcheltree and distributed MDMA to various dealers. Id. By January 1986, defendant, Volk and Mitcheltree were packaging MDMA for resale. Id. at 456.

In February 1986, defendant consigned six grams of cocaine to Volk with the understanding that Volk could keep any proceeds in excess of $80 per gram. Id. at 482. Volk sold five grams and used one. Id. at 482-83. This arrangement continued at least twice a month until the end of 1986 or early 1987, with Volk in Oklahoma City and defendant in Texas. Id. at 483. Also in February 1986, defendant offered to supply former-associate-turned-informant Leslie Lynn Ricks with cocaine. Rec. supp. vol. VII at 751. Ricks was provided with a sample to examine visually, but he declined to purchase any because he was satisfied with his existing supplier. Id. Thereafter, defendant twice offered to sell Ricks a remaining "eightball" (one-eighth ounce) of cocaine. Id. at 751.

In June 1986, Plano, Texas police executed a search warrant at defendant's residence and arrested him. The search revealed typical drug dealer items--numerous pills in various unmarked bottles, small plastic bags containing white powder, several rolls of plastic bags, a cocaine grinder, a triple section scale, a gold plated straw, $6,000 in currency, numerous firearms, seven bags of bullets and a not-so-typical picture of defendant posing with a straw over a pound of cocaine on a plate glass mirror. Id. supp. vol. IV at 276-77, 282-84, 314-15, 337-38, 354. Inside defendant's garage was a motorcycle with the license plate XTEXY (ecstasy). Id. at 307. The drugs found during the search contained the presence of cocaine (2.23 grams) and MDMA (63.69 grams). Id. at 364-66, 368. Defendant was charged in two Texas state criminal cases with possession of cocaine and MDMA, and ultimately received ten years probation to run concurrently with his previous Dallas County sentence. Id. supp. vol. XII, doc. 22 at 2-3 (citing Texas v. Raymer, Nos. F-86-442-S & F-86-443-S (Collin County, Tx.D.Ct. (219th Jud.Dist.) Feb. 2, 1987)).

Defendant agreed to cooperate with the Plano authorities for more lenient treatment. Rec. supp. vol. III at 78. Mitcheltree and Volk had to quit the MDMA business because defendant was no longer making trips to Oklahoma City. Id. supp. vol. IV at 469. According to Volk, a few months later defendant contacted Mitcheltree offering to send MDMA through the mail. Volk talked with defendant about which type of mail service was preferable. Defendant explained that express mail was preferable because "the law states you need a court order to get into the U.S. mail," id. at 470, and a private parcel service "can open it," id. at 471. For two or three weeks, MDMA tablets were sent to Mitcheltree and Volk through the mail. Id.

During September-October 1986, defendant relied upon road trips and the mail for delivery of MDMA to other dealers. Covert distribution of MDMA or payment of cash frequently occurred in public places. For example, defendant confessed to the FBI that he used pagers to make arrangements with his MDMA suppliers. Later, he would retrieve the drugs which had been left for him from a designated place such a men's restroom at McDonalds or Burger King. Rec. supp. vol. III at 80.

Defendant was arrested a third time in July 1987, for arranging the April 1987 sale of 401 MDMA tablets to Ricks, with delivery at the Will Rogers Airport in Oklahoma City. See id. supp. vol. VI at 767-769; supp. vol. VIII 1249-51. Defendant's brother, Ryan Shane Raymer, made the actual delivery. Both were charged in an Oklahoma state felony information with conspiracy to distribute, possession with intent to distribute and distribution of MDMA. Id. supp. vol. XII, doc. 22 at 3 (citing Oklahoma v. Raymer, No. RF87-03966 (Okla. County D.Ct.Jul. 20, 1987)); Appellant's Brief at 1. Defendant waived extradition and was detained in Oklahoma for seven months, from December 22, 1987, until July 22, 1988, when he made bond. Id.

In November 1988, the Oklahoma state case against defendant and his brother was set for trial, but defendant did not appear due to his surrender on Texas misdemeanor charges as well as revocation of suspended sentence proceedings in Texas. Rec. supp. vol. XII, doc. 167 (R. Wintory affidavit, p 4 at 2). The Texas misdemeanor charges were dismissed. Id. Defendant did not appear at subsequent trial settings of the Oklahoma state case. Id. Although defendant had waived extradition from Texas to Oklahoma in 1987, he indicated that he would not voluntarily return to Oklahoma.

Oklahoma sought to extradite defendant; however, the proceedings "encountered significant procedural difficulties including the disappearance of the Governor's Warrant." Id. The prosecutor in the state case was Richard Wintory, who later was designated a special assistant United States Attorney. In his federal capacity, Mr. Wintory was instrumental in obtaining a federal indictment against the defendant and subsequently arranging for the dismissal of the Oklahoma state case in lieu of federal prosecution.

On appeal, defendant contends that the district court erred in not...