U.S. v. Apodaca

• Citation: 843 F.2d 421
• Decision Date: 01 April 1988
• Docket Number: No. 86-1366,86-1366
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alfred Lee APODACA, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 421

843 F.2d 421

UNITED STATES of America, Plaintiff-Appellee, v. Alfred Lee APODACA, Defendant-Appellant.

No. 86-1366.

United States Court of Appeals Tenth Circuit.

April 1, 1988.

As Amended June 24, 1988.

Order on Denial of Rehearing June 24, 1988.

Robert Justin Driscoll, Denver, Colo., for defendant-appellant.

Richard A. Stacy, U.S. Atty. (David A. Kern, Asst. U.S. Atty., with him on the brief) Cheyenne, Wyo., for plaintiff-appellee.

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

SEYMOUR, Circuit Judge.

Alfred Lee Apodaca was convicted of engaging in a continuing criminal enterprise (CCE), in violation of 21 U.S.C. Sec. 848 (1982); use of a communication facility in connection with the commission of a felony, in violation of 21 U.S.C. Sec. 843(b) (1982); and unlawful possession of a firearm, in violation of 18 U.S.C.App. Sec. 1202(a)(1) (1982). With respect to the continuing criminal enterprise conviction, Apodaca argues that (1) the evidence was insufficient to support a jury finding that he organized, supervised, or managed five or more persons, and (2) the court committed reversible error by allowing the Government to introduce evidence of predicate offenses not specifically alleged in the indictment. Apodaca also argues that the trial court abused its discretion and abridged his right to a fair trial by permitting the marshal to secure his legs with a leg chain during the trial. We affirm.

I.

The Government's proof at trial showed that from at least 1982 until February 1985, Apodaca was the central figure in organizing numerous individuals to manufacture and distribute methamphetamine (crank) in central Wyoming. Nick Manzanares, one of Apodaca's immediate subordinates, testified that in 1982 he began selling methamphetamine for Apodaca. When Apodaca moved to Cody, Manzanares "more or less took up the position that [Apodaca] had occupied there in Riverton--took over the business," rec., vol. VI, at 381, and sold a supply of crank that Apodaca had left with him on a consignment basis. Ron Jackson testified that he began selling crank for Apodaca early in 1983 in Casper. Jackson stated that sometimes he dealt with Apodaca personally, while at other times transactions were handled through Manzanares or Dennis Beckers, Apodaca's stepfather.

In late 1983 or early 1984, Apodaca, George Williamson, and Donald Settegast manufactured methamphetamine at Apodaca's residence in Riverton. Manzanares testified that he received and sold some of the crank from this "cook" (cook I), and gave the proceeds from the sales to Apodaca.

In June 1984, another "cook" (cook II) took place between Riverton and Shoshoni. Apodaca and Manzanares assisted Williamson, who acted as the chemist or "chef." After cook II was completed, Apodaca and Manzanares packed up the laboratory, which Manzanares stored at Apodaca's instruction. Apodaca gave portions of the cook II supply to Manzanares, who distributed it to Susan Harsch, Tim Richards, and Ron Jackson, who were dealing in Casper, and to Mike Pasely, who was dealing in Riverton and Thermopolis. Harsch paid Manzanares the proceeds from her sales, he retained his own share, and "[m]ost of [the money] went back to [Apodaca]." Rec., vol. VI, at 395-96. Manzanares testified that Jackson and Pasely were both dealers working for Apodaca.

Manzanares also testified that Apodaca had offered to pay for a lawyer if Manzanares were ever arrested. Rec., vol. VI, at 398. Apodaca instructed Manzanares to pass on the information. Manzanares conveyed Apodaca's offer to Harsch, Richards, and Ron and Barbara Hale, all dealers who In mid-August 1984, the supply of crank from cook II was depleted. Apodaca instructed Manzanares and Beckers to transport the lab from Wyoming to Oregon for another "cook" (cook III). In Oregon, Williamson, Apodaca, and Manzanares produced approximately eighteen pounds of methamphetamine. Manzanares and Apodaca then packed up the lab and stored it in a rental storage facility in Grants Pass, Oregon. Apodaca signed the storage contract. After cook III, he and Manzanares travelled to San Francisco. At Apodaca's direction, Jackson flew to San Francisco to pick up some of the cook III crank to take back to Wyoming. Manzanares flew back to Casper with about a pound of crank. Harsch picked him up at the Casper airport and took him to her trailer house, where he distributed a few ounces of crank to Harsch and Richards. Ron and Barbara Hale, who were dealing in Riverton and whom Manzanares had called from California, met him at Harsch's house and drove him back to Riverton. The Hales initially received about an ounce of the cook III crank. Manzanares eventually distributed the remainder of the pound to Harsch, Richards, and the Hales.

received their supply of methamphetamine from Apodaca through Manzanares.

The evidence suggests that Apodaca remained on the West Coast while the first portions of the cook III crank were being sold on the street in Wyoming. When he returned, he brought back five more pounds of methamphetamine, which he gave to Manzanares for distribution. Later, after Apodaca was arrested and incarcerated, Manzanares continued to distribute the five pounds to Donald Settegast, Linda Williamson, Ron Jackson, Louis Montoya, and Dave Blumgren, on instructions from Dennis Beckers. Beckers received the sales proceeds on Apodaca's behalf and at Apodaca's direction.

Susan Harsch testified that in October 1984, Manzanares introduced her to Apodaca. Harsch stated that while the three of them were together, she said to Manzanares, "So, this is your boss?" Rec., vol. VII, at 596. Manzanares "agreed," and Apodaca "kind of made a little sound and nodded his head." Id. Later, Harsch said to Apodaca, "I am glad that you finally told me, because I have known for over a year that [you are] the boss, or head man." Apodaca "just kind of laughed and said, 'Yeah.' " Id. at 597.

In January 1985, Apodaca was arrested and incarcerated. Randy Britt, who first met Apodaca when the two were imprisoned in the county jail, testified that Apodaca told him that "Barb and her husband" had been selling for him. Rec., vol. VII, at 617. Apodaca also told Britt that "when he got out of prison, he was going to get everybody going again." Id. at 619.

II.

Apodaca does not dispute that the facts summarized above clearly establish his deep involvement with numerous individuals in the manufacture and distribution of methamphetamine. Instead, he contends that the evidence was insufficient to permit the jury to find that he occupied a position of organizer, supervisor, or manager with respect to five or more persons, as required by 21 U.S.C. Sec. 848(b)(2)(A). Apodaca concedes that the requisite relationship existed between himself and three people--Manzanares, Beckers, and Jackson. After reviewing the record, we conclude that the jury properly could have found beyond a reasonable doubt that he occupied the position of organizer, supervisor, or manager with respect to at least four other individuals.

In reviewing a claim that the evidence is insufficient to support a conviction, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); see 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).

To be convicted of engaging in a continuing criminal enterprise, a defendant must have acted "in concert with five or more persons with respect to whom [the defendant] occupies a position of organizer, a supervisory position, or any other position of management." 21 U.S.C. Sec. 848(b)(2)(A). In Dickey, we noted that " '[t]he operative concepts used in section 848--"organize," "supervise," and "manage"--are not technical, and we see no reason to give them Significantly, the statute is phrased in the disjunctive. The defendant must have acted as organizer, as supervisor, or in any other position of management. The use of the phrase, "any other position of management," indicates that "organizer" and "supervisor" are but two examples of managerial roles; there may be others. Additionally, "organizer" and "supervisor," understood according to their ordinary meanings, can denote differing levels of managerial control and coordination. See Oberski, 734 F.2d at 1032 n. 3. "In ordinary parlance, a relationship of supervision is created when one person gives orders or directions to another person who carries them out." United States v. Stratton, 779 F.2d 820, 827 (2d Cir.1985), cert. denied, 476 U.S. 1162, 106 S.Ct. 2285, 90 L.Ed.2d 726 (1986). On the other hand, "an organizer can be defined as a person who puts together a number of people engaged in separate activities and arranges them in their activities in one essentially orderly operation or enterprise." 2 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions Sec. 58.21 (1977). "The ordinary meaning of the word 'organizer' does not carry with it the implication that the organizer is necessarily able to control those whom he or she organizes." Ray, 731 F.2d at 1367; accord Oberski, 734 F.2d at 1032 n. 3. Although " 'cases involving well-defined chains of command under the control of a "King Pin" offer the clearest examples of organization, supervision, or management, ... the necessary showing can plainly be made in the case of a less structured enterprise.' " Dickey, 736 F.2d at 587 (quoting Mannino, 635 F.2d at 117). The defendant need not even have been the dominant organizer or manager of the enterprise; "the statute requires only that he occupy some managerial position" with respect to five or more persons. United States v. Becton, 751 F.2d 250, 255 (8th Cir.1984), cert. denied, 472 U.S....