U.S. v. Askew

• Decision Date: 05 March 1992
• Docket Number: 90-2898,90-3013 and 91-1531,Nos. 90-2714,s. 90-2714
• Citation: 958 F.2d 806
• Parties: UNITED STATES of America, Appellee, v. Charles David ASKEW, Appellant. UNITED STATES of America, Appellee, v. Tommy Earl EDWARDS, Appellant. UNITED STATES of America, Appellee, v. Leland O'Grady GLASCO, Appellant. UNITED STATES of America, Appellee, v. Thomas Lee EDWARDS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 806

958 F.2d 806

UNITED STATES of America, Appellee, v. Charles David ASKEW, Appellant.

UNITED STATES of America, Appellee, v. Tommy Earl EDWARDS, Appellant.

UNITED STATES of America, Appellee, v. Leland O'Grady GLASCO, Appellant.

UNITED STATES of America, Appellee, v. Thomas Lee EDWARDS, Appellant.

Nos. 90-2714, 90-2898, 90-3013 and 91-1531.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 9, 1991.

Decided March 5, 1992.

Rehearing Denied in No. 90-2714

April 23, 1992.

Dan J. Kroha, Little Rock, Ark., argued, for Charles David Askew.

Dale E. Adams, Little Rock, Ark., argued, for Tommy Earl Edwards and Thomas Lee Edwards.

Don Ed Payne, Hugo, Okl., argued, for Leland Glasco.

Counsel Robert Joseph Govar, Asst. U.S. Atty., Charles A. Banks, U.S. Atty., Little Rock, Ark., argued, for U.S.

Before BOWMAN, WOLLMAN, and LOKEN, Circuit Judges.

LOKEN, Circuit Judge.

Leland Glasco, Tommy Earl Edwards, Thomas Lee Edwards, and Charles David Askew appeal both their convictions and sentences for participating in a multistate conspiracy to manufacture and distribute methamphetamine. We affirm.

I.

In the fall of 1984, at a meeting in North Little Rock, Arkansas, Tony Givens, a convicted felon and former drug addict, and Anthony and Leland Glasco, California residents with long family roots in Arkansas, decided there was a market for methamphetamine in the Little Rock area. Anthony Glasco, the dominant figure in the resulting conspiracy, agreed to produce the methamphetamine; Givens would help distribute it in Arkansas. According to the government, the conspiracy ultimately spanned seven states, involved dozens of individuals, and produced and distributed 251 pounds of crystal methamphetamine.

The first 100 pounds were produced at a makeshift laboratory in Daisy, Oklahoma, in the spring and summer of 1985. The lab participants packaged the drug in large food cans bearing pork and bean labels. Testimony linked at least eight people with this lab, including Leland Glasco. Each participant received some of the drug when leaving.

The remaining 150 pounds were produced at four "speed labs" ¹ that operated out of an abandoned trailer home on Tommy Earl Edwards' (Edwards Sr.) 240-acre hay and cattle farm in Frenchglen, Oregon, from early summer 1986 until February or March of 1987. In Oregon, the finished product was put into plastic baggies, rather than food cans, and again divided according to each participant's stake in the venture. The lion's share, at least from the Oregon labs, went to Anthony Glasco and Edwards Sr.

A number of witnesses testified that they flew to Modesto, California, or Reno, Nevada, to pick up methamphetamine from the Glascos. They paid in cash or equipment, or were "fronted" the drug to sell on consignment. When they returned to Arkansas, Kansas, or Oklahoma, they would sell smaller quantities to other dealers. Another witness testified that he obtained methamphetamine by phoning one of the Glascos and then picking up a pound of the drug from their mother, Dorotha, at her Arkansas home.

In April 1990, appellants and eleven others were charged in a one-count indictment with violating the federal drug conspiracy statute, 21 U.S.C. § 846, by participating in a single conspiracy to manufacture and distribute methamphetamine from January 1985 to January 1989. Appellants were separately tried; some of their alleged conspirators, including Anthony Glasco, await trial. Others not named in the indictment, including Givens, have been convicted of related offenses.

Many of the alleged conspirators were family members. For example, the indictment named (i) Dorotha Glasco and Edwards Sr., who are siblings; (ii) their children, Leland and Anthony Glasco, Paul Steven Edwards, and Thomas Earl Edwards (Edwards Jr.); and (iii) their nephew, Michael Edwards. In addition, Michael's father, Felix Edwards, testified at the trial after a related conviction, and Michael's brother, Ricky, was a key government witness.

Appellants were convicted in June 1990 after a nine-day jury trial. Leland Glasco disappeared before the seventh day of trial and was convicted in absentia. He was then rearrested and cooperated in the government's efforts to apprehend others, including his brother Anthony. Following the verdict, each defendant moved for post-trial relief on various grounds, most of which are presented on appeal. The district court ² denied these motions and sentenced defendants to prison terms ranging from 60 to 235 months. These consolidated appeals followed.

II.

Single or Multiple Conspiracies.

Glasco, Askew, and Edwards Sr. argue that the indictment alleged a single conspiracy, but the government proved multiple conspiracies, because the evidence did not sufficiently link the manufacturing in Oregon with the manufacturing in Oklahoma or with the distribution in Arkansas and elsewhere. See Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). Appellants allege that this variance in proof is grounds for reversal because their substantial rights were prejudiced by the "spillover" of evidence from one conspiracy to another. See United States v. Jones, 880 F.2d 55, 65-66 (8th Cir.1989).

Before trial, defendants raised a critical aspect of this issue--whether hearsay statements would be admissible against each defendant as conspirator statements under Fed.R.Evid. 801(d)(2)(E). ³ Adopting the procedure we approved in United States v. Bell, 573 F.2d 1040, 1044 (8th Cir.1978), the district court conditionally admitted conspirator statements during the government's case, subject to defendants' objections. When the government rested, defendants renewed their objections and moved for a mistrial on the ground that the government had failed to prove the single conspiracy alleged in the indictment. The district court overruled the objections, concluding that almost all the conspirator statements were admissible against all defendants because "this was one large conspiracy and not a group of separate conspiracies."

The district court also properly submitted the single conspiracy issue to the jury, instructing that, to convict, the jury must find beyond a reasonable doubt "that the conspiracy alleged in the indictment was willfully formed." ⁴ The question whether there was more than one conspiracy is ultimately for the jury. Our review of the jury's determination of this question is exceedingly limited:

If the record contains evidence from which the jury could find one overall agreement to commit an illegal act, the evidence establishes a single conspiracy.

United States v. Regan, 940 F.2d 1134, 1135 (8th Cir.1991); see United States v. Massa, 740 F.2d 629, 636-37 (8th Cir.1984), cert. denied, 471 U.S. 1115, 105 S.Ct. 2357, 86 L.Ed.2d 258 (1985). Viewing the evidence in the light most favorable to the jury, as we must, we find ample evidence supporting the jury's verdict. See United States v. Lee, 782 F.2d 133 (8th Cir.1986).

There was testimony connecting those manufacturing the drug at both locations with those who distributed it throughout the conspiracy period. There was substantial evidence that this drug ring was a family affair, in which family members had various roles but were aware of the common goal. "A division of labor among conspirators in pursuit of a common goal does not necessitate a finding of discrete schemes." United States v. Gomberg, 715 F.2d 843, 846 (3d Cir.1983), cert. denied, 465 U.S. 1078, 104 S.Ct. 1439, 1440, 79 L.Ed.2d 760 (1984). Also, there may be a single conspiracy when a single member, such as Anthony Glasco, dominates, so long as the lesser players work toward the common goal. See United States v. Gonzalez, 940 F.2d 1413, 1422 (11th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 910, 116 L.Ed.2d 810 (1992).

Therefore, on this record we conclude, first, that there was sufficient evidence for the jury to find a single conspiracy, and second, that appellants have failed to show that their substantial rights were prejudiced by any variance because of the district court's proper handling of the conspirator statements issue.

Sufficiency of the Evidence.

Askew and Edwards Jr. argue that there was insufficient evidence to convict them of conspiracy. This issue requires us to determine whether, viewing the evidence in the light most favorable to the government, there was substantial evidence that each of these defendants was a conspirator:

To be guilty of conspiracy, one must knowingly contribute to the furtherance of the conspiracy. Knowing contribution requires some element of cooperation beyond mere knowledge of the existence of the conspiracy. An agreement may include the performance of many transactions, and new parties may join or old parties terminate their relationship with the conspiracy at any time. "Once the existence of a conspiracy has been established, even slight evidence connecting a particular defendant to the conspiracy may constitute proof of the defendant's involvement in the scheme to render him culpable." The government need not prove that the defendant knew all the conspirators or was aware of all the details.

United States v. Garcia, 785 F.2d 214, 225 (8th Cir.) (citations omitted), cert. denied, 475 U.S. 1143, 106 S.Ct. 1797, 90 L.Ed.2d 342 (1986); see United States v. Foote, 898 F.2d 659, 663 (8th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 112, 112 L.Ed.2d 81 (1990).

There was substantial evidence that Askew knowingly joined the conspiracy. Witness Richard Sharp testified that he met Askew while in California buying methamphetamine from Leland Glasco. On one such trip, while driving Sharp to the train station, "David Askew told me something was under the seat.... I picked up a baby powder container from under the seat of the truck." Sharp later checked and found a pound of methamphetamine in the container.

Witness Ronald Hopkins testified that, during a drug-buying trip to Leland Glasco's home in California, a man...