U.S. v. Horn

Citation946 F.2d 738
Decision Date09 October 1991
Docket NumberNo. 90-5196,90-5196
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Ronnie HORN, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Jo Stanley Glenn, Tulsa, Okl., for defendant-appellant.

John S. Morgan, Asst. U.S. Atty. (Tony M. Graham, U.S. Atty. with him on the brief), for plaintiff-appellee.

Before HOLLOWAY, LOGAN and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.

Defendant-appellant Ronnie Horn was convicted of conspiracy to possess with intent to distribute and conspiracy to distribute fifty grams or more of cocaine base. 1 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A)(iii). The indictment alleged that defendant participated in a chain conspiracy in which the participants obtained cocaine from California and distributed it in the Comanche Park Apartments in Tulsa, Oklahoma from November 1988, to November 1989. Defendant appeals, contending that (1) the evidence was insufficient to establish his guilt beyond a reasonable doubt, (2) the trial court should have instructed on a lesser included offense, i.e. possession, and (3) the Sentencing Guidelines are violative of due process because they fail to provide a departure procedure analogous to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1 which may be used by defendants or the court. Our jurisdiction arises under 28 U.S.C. §§ 1291 and 18 U.S.C. § 3742(a)(1). See United States v. La Guardia, 902 F.2d 1010, 1012 (1st Cir.1990) (constitutional challenge to guideline sentence cognizable under § 3742(a)(1)). We affirm.

I.

The essence of a drug distribution conspiracy is an agreement between two or more persons to traffic in controlled substances. United States v. Savaiano, 843 F.2d 1280, 1294 (10th Cir.1988). Defendant contends that the government failed to prove beyond a reasonable doubt that he knew of the conspiracy, intended to join it and participated therein. Appellant's Brief at 6-10 (relying upon United States v. Glasgow, 658 F.2d 1036, 1040 (5th Cir. Unit B 1981)).

A conspiracy conviction requires the government to prove that "(1) a conspiracy existed, (2) the defendant knew the essential objectives of the conspiracy, and (3) the defendant knowingly and voluntarily became a part of it." United States v. Esparsen, 930 F.2d 1461, 1471 (10th Cir.1991). A defendant's participation in a conspiracy is proven by evidence tending to show that the defendant shared a common purpose or design with his alleged coconspirators. United States v. Fox, 902 F.2d 1508, 1514 (10th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 199, 112 L.Ed.2d 161 (1990). The conduct of the alleged coconspirators, including the defendant, may be diverse and far-ranging, but it must be interdependent in some way. United States v. Daily, 921 F.2d 994, 1007 (10th Cir.1990). Thus, if the activities of a defendant charged with conspiracy facilitated the endeavors of other alleged coconspirators or facilitated the venture as a whole, evidence of interdependence is present. Id.

Although narcotics trafficking conspiracies have been likened to chain conspiracies in which each link facilitates the conspiracy, the usual structure is not as rigid as the "chain conspiracy" label implies because narcotics networks are "loosely knit vertically integrated combinations." United States v. Dickey, 736 F.2d 571, 582 (10th Cir.1984) (internal quotations omitted), cert. denied, 469 U.S. 1188, 105 S.Ct. 957, 83 L.Ed.2d 964 (1985). A defendant must have a general awareness of other alleged coconspirators, but is not required to be personally acquainted with all coconspirators or know all of the details of the venture. See Blumenthal v. United States, 332 U.S. 539, 557, 68 S.Ct. 248, 256, 92 L.Ed. 154 (1947); United States v. Harrison, 942 F.2d 751, 756 (10th Cir.1991); Savaiano, 843 F.2d at 1294. A defendant's connection to a conspiracy may be slight, but that slight connection must be proven with evidence to establish knowing participation beyond a reasonable doubt. See Direct Sales v. United States, 319 U.S. 703, 711, 63 S.Ct. 1265, 1269, 87 L.Ed. 1674 (1943); Savaiano, 843 F.2d at 1294. Casual transactions with persons involved in a conspiracy are insufficient to establish that critical connection--one who merely purchases drugs or property for personal use from a member of a conspiracy "does not thereby become a member of the conspiracy." Fox, 902 F.2d at 1514. "Those having no knowledge of the conspiracy are not conspirators...." United States v. Falcone, 311 U.S. 205, 210, 61 S.Ct. 204, 206-07, 85 L.Ed. 128 (1940). Nor does one become a member of a conspiracy merely by associating with conspirators known to be involved in crime. See id. at 210, 61 S.Ct. at 206-07 (casual unexplained meetings with conspirators insufficient to establish knowledge); Fox, 902 F.2d at 1514. We are mindful to guard against the mass application of guilt when conspiracy charges are involved because guilt is always dependent on personal and individual conduct, not on mere association or unknowing involvement. See Kotteakos v. United States, 328 U.S. 750, 773, 66 S.Ct. 1239, 1252, 90 L.Ed. 1557 (1946); Harrison, 942 F.2d 751, 755-56; Fox, 902 F.2d at 1514.

We review the evidence in the light most favorable to the government to determine whether any rationale trier of fact could find the defendant guilty beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979). This deferential standard recognizes that it is "the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Id. at 319, 99 S.Ct. at 2789. Credibility choices are resolved in favor of the jury's verdict, id. at 326, 99 S.Ct. at 2793; United States v. Record, 873 F.2d 1363, 1367 (10th Cir.1989), but we cannot sustain a conspiracy conviction if the evidence does no more than create a suspicion of guilt or amounts to a conviction resulting from piling inference on top of inference. Direct Sales, 319 U.S. at 711, 63 S.Ct. at 1269; Fox, 902 F.2d at 1513.

Applying these standards, we hold that a rational jury could find that defendant was part of conspiracy to possess with intent to distribute and a conspiracy to distribute fifty grams or more of cocaine base. The objective of this conspiracy was to distribute large amounts of cocaine for profit. See United States v. Bouck, 877 F.2d 828, 829-30 (10th Cir.1989). Verna Gilyard estimated her sales alone "in the thousands" of dollars. I Tr. 12. Another witness testified that the midlevel distributors received quantities of cocaine for distribution ranging from one-half kilogram (approximately eighteen ounces) to one and one-half kilograms. II Tr. 244 (Reynolds). According to Gilyard, the midlevel distributors in the conspiracy 2 supplied defendant with cocaine which he resold on seven occasions. 3 Gilyard testified that she saw defendant sell cocaine, "maybe about $400 worth," on a number of occasions and she identified two customers by name. I Tr. 6, 15. The sales occurred once or twice from her home and several other times from the surrounding area. I Tr. 8. According to Gilyard, the cocaine defendant sold was supplied by conspirators Buckley and Alexander. I Tr. 9, 26-27. Gilyard also testified that she observed Buckley give defendant cocaine in her home. I Tr. 26. Gilyard indicated that defendant promised her that he would help her with her bills with the proceeds of any cocaine sale. I Tr. 15.

Buckley testified that he supplied defendant with cocaine on two occasions, once as payment for car repairs and once for resale. I Tr. 45. When defendant did not pay him for the fronted cocaine, Buckley argued with the defendant. I Tr. 50. Gilyard and Alexander observed this argument. I Tr. 11, 96. Although the evidence conflicts, several witnesses testified that they observed defendant sell cocaine. 4 Gable McGlory testified that, on two or three occasions, he delivered a brown paper sack to defendant at Gilyard's apartment. II Tr. 198, 212. The sacks were sent by Wilson, whom McGlory knew to be a drug dealer. II Tr. 198-99. Finally, Alexander testified that defendant assisted in the distribution scheme by bringing in customers and delivering crack cocaine to customers. I Tr. 96. Defendant was compensated for bringing in customers. I Tr. 97.

Defendant suggests that his testimony denying involvement in a conspiracy and the testimony of others who did not see him sell cocaine creates a reasonable doubt as to his guilt. He maintains that he merely purchased cocaine from members of the conspiracy, or worked on their autos in exchange for cocaine for personal use. Defendant points to his testimony that he confronted a dealer who was using children to sell dope. II Tr. 295-96. Defendant also suggests that no testimony links him to control of the brown paper bags or indicates their contents. Defendant suggests that none of the conspirators implicated him, and that Gilyard's testimony indicates that she became involved in the conspiracy only after defendant moved out of her apartment.

Our review of the record suggests that other conspirators implicated the defendant as a member of the conspiracy based on the activities of procuring customers, selling cocaine and delivering it. Defendant's activities represent more than evidence of isolated transactions not linked to this conspiracy; to the contrary, Gilyard testified that defendant obtained the cocaine he sold from Buckley and Alexander, the midlevel distributors, and Alexander testified that defendant sometimes brought in customers and made deliveries on behalf of the conspiracy. By agreeing to perform these tasks, defendant became part of the larger common plan to distribute well in excess of fifty grams of cocaine. See Blumenthal, 332 U.S. at 558, 68 S.Ct. at 257. The conspirators were "joined together by their knowledge of [the plan's] essential...

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