U.S. v. Baugham

Decision Date02 June 2006
Docket NumberNo. 03-3157.,03-3157.
Citation449 F.3d 167
PartiesUNITED STATES of America, Appellee v. Reginald BAUGHAM, a/k/a Reds, Appellant.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeals from the United States District Court for the District of Columbia (No. 01cr00253-02). (No. 01cr00253-03).

Anthony D. Martin, appointed by the court, argued the cause and filed the brief for appellant Reginald Baugham in No. 03-3157.

Dennis M. Hart, appointed by the court, argued the cause and filed the brief for appellant Michael Wells in No. 03-3158.

Suzanne G. Curt, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Kenneth L. Wainstein, U.S. Attorney, John R. Fisher, Assistant U.S. Attorney at the time the brief was filed, and David B. Goodhand and Martin D. Carpenter, Assistant U.S. Attorneys.

Before: ROGERS, Circuit Judge, and EDWARDS* and WILLIAMS, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge WILLIAMS.

WILLIAMS, Senior Circuit Judge.

Five defendantsappellants Baugham and Wells and three others, Honesty, White, and James Nelson, Jr.1 — were tried together for conspiracy to distribute and to possess with intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. § 846. Each of the five defendants was also tried in the same proceeding on one or more substantive offenses, each involving drugs, guns, or both. Honesty, White, and James Nelson, Jr., were acquitted on all counts. Baugham was convicted on the conspiracy count, plus two others: distributing cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2, and possessing 5 grams or more of cocaine base with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(iii) and 18 U.S.C. § 2. Wells was also convicted on the conspiracy count, plus two others: distributing 50 grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii) and 18 U.S.C. § 2, and possessing a firearm in furtherance of a drug trafficking offense (i.e., the drug conspiracy), in violation of 18 U.S.C. § 924(c)(1).

Baugham and Wells attack their convictions on a variety of grounds; the only ones meriting discussion in a published opinion are claims of insufficiency of evidence of conspiracy and of a fatal variance between the conspiracy alleged and the proof at trial. They also challenge their sentences. We affirm the convictions but vacate the sentences and remand for resentencing.

I. The Conspiracy Convictions

Baugham argues that there was insufficient evidence that he conspired with any of the defendants, cooperators, or informants. It is unclear whether Wells also mounts a sufficiency challenge, but the government reads his brief as doing so and therefore presents what it contends is evidence sufficient to support both appellants' conspiracy convictions. Brief of Appellee at 29-37, esp. 34, 36. Given that this court in any event has the power to notice a plain error sua sponte, Silber v. United States, 370 U.S. 717, 718, 82 S.Ct. 1287, 8 L.Ed.2d 798 (1962), and assuming in Wells's favor that our usual deference to the jury verdict is no greater when the plain-error rule applies, see United States v. Spinner, 152 F.3d 950, 956 (D.C.Cir. 1998), we think it appropriate, under these circumstances, to subject his conspiracy conviction to the same scrutiny as Baugham's.

Evidence is sufficient if, when viewed in the light most favorable to the government, it would permit a rational jury to find the elements of conspiracy beyond a reasonable doubt. United States v. Graham, 83 F.3d 1466, 1471 (D.C.Cir. 1996). The drug conspiracy statute, 21 U.S.C. § 846, dispenses with the usual requirement of an overt act and requires only an agreement to commit any offense(s) defined in the subchapter, United States v. Shabani, 513 U.S. 10, 16-17, 115 S.Ct. 382, 130 L.Ed.2d 225 (1994) — in this case, distribution of, or possession with intent to distribute, 50 grams or more of "cocaine base," 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii).

The sufficiency and variance issues interact with each other here in a rather complex way. In United States v. Brisbane, 367 F.3d 910 (D.C.Cir.2004), we addressed the "cocaine base" element of the offense, holding that a conviction premised on "cocaine base" under 21 U.S.C. § 841 cannot stand unless the evidence establishes that the cocaine at issue was crack or that it was smokable; we left unresolved whether proof of smokability alone would suffice. Id. at 914. Appellants did not raise the Brisbane problem below, so we review for plain error under Federal Rule of Criminal Procedure 52(b). Thus, the convictions cannot stand if (1) there is error (2) that is plain and (3) that affects substantial rights, and (4) we find that the error "seriously affects the fairness, integrity or public reputation of judicial proceedings." United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (citations, internal quotation marks, and brackets omitted).

Here, if the evidence turns out to be sufficient to support the conviction even when the statute is read in accordance with Brisbane, there is no error at all as to sufficiency. Because of all hands' failure to anticipate Brisbane, the record is relatively weak on whether either the conspiracy alleged in the indictment, or even a Baugham-Wells conspiracy argued by the government as a fallback, actually involved 50 grams of cocaine base as defined in Brisbane. But the evidence, as we shall soon see, is quite abundant for a showing that Baugham and Wells each conspired with cooperating witness Earl Nelson to distribute far more than 50 grams of crack.

Because the parties' briefs hadn't addressed the relation between Brisbane and the sufficiency and variance issues, we ordered a second round of briefing, putting to the parties the questions (among others) whether the evidence was adequate to show Baugham-Earl and Wells-Earl conspiracies on the scale of 50 grams of cocaine base as defined in Brisbane and whether reliance on those conspiracies would mean that the variance caused appellants harm justifying reversal. Having studied the second round of briefs, we proceed to those two issues.

A. Sufficiency of the Evidence

Cooperating witness Earl Nelson testified that he purchased an ounce (i.e., about 28 grams) of "crack cocaine" from Baugham "more than twenty or thirty" times and that he purchased even more ounces of crack cocaine from Wells.

A sale of drugs does not, however, per se establish a conspiracy between seller and buyer to distribute such drugs, or to possess them with intent to distribute. In drawing the distinction between a conspiracy and a non-conspiratorial buyer-seller relationship, the Supreme Court and this court have considered a variety of factors: the seller's knowledge of the buyer's illegal purpose (e.g., to re-sell the drugs) and of any larger organization designed to further that purpose; the seller's intent to further the buyer's illegal purpose; the duration and regularity of the dealings; the quantity of drugs sold; the importance of the particular buyer to the particular seller and vice versa; and either party's special efforts to get the other party to transact with him (including extension of credit) or to make the entire operation run successfully. See Direct Sales Co. v. United States, 319 U.S. 703, 711-12 & n. 8, 63 S.Ct. 1265, 87 L.Ed. 1674 (1943); United States v. Thomas, 114 F.3d 228, 245 & n. 5 (D.C.Cir.1997); United States v. Baylor, 97 F.3d 542, 543-44, 547 (D.C.Cir.1996); United States v. Sobamowo, 892 F.2d 90, 94-95 (D.C.Cir.1989); United States v. Morris, 836 F.2d 1371, 1373-74 (D.C.Cir.1988). While the seller's knowledge of the buyer's illegal purpose is necessary to conviction, Direct Sales, 319 U.S. at 712 & n. 8, 63 S.Ct. 1265, and multiple huge sales (much larger than those here) may be sufficient, United States v. Childress, 58 F.3d 693, 714 (D.C.Cir.1995), the cases otherwise say little about how the various factors are to be weighed.

We conclude that Earl's purchases from each of the appellants separately fulfill enough of the indicia of conspiracy to support their convictions. We do not decide whether the evidence supports the single broad horizontal-and-vertical conspiracy alleged in the indictment, nor any part of it (e.g., the Baugham-Wells conspiracy identified by the government), aside from the Earl-Baugham and Earl-Wells agreements. We save the variance issue for the next section.

Earl plainly intended to distribute the crack he bought from each appellant. When asked about his general practice when purchasing ounces from Baugham, Earl testified that the purchase price was $1000 and that if the entire quantity were sold at retail (i.e., "[i]f you bag up an ounce"), the gross revenue would be $2000. In fact, however, Earl said his profit if he "did good" was only $200 or $300, since he exchanged some of the crack for sex, sometimes didn't get the full price from his retail customers, and smoked some of the crack himself (the only non-distributed portion). Thus, Earl must have typically distributed around half or more of each ounce he purchased from Baugham.

The jury could rationally infer that this testimony also applied to the ounces that Earl purchased from Wells. Earl gave no reason to think his practice differed depending on his supplier. Moreover, immediately after giving the testimony on Baugham cited above, Earl shifted seamlessly into comments that applied to all of his suppliers, suggesting he didn't mean his testimony to be specific to Baugham.

Further, there is evidence that each appellant knew of Earl's intent to distribute and sought to further the distribution. Testifying as to his general practice when purchasing ounces from Baugham, Earl said that he could sell an ounce in a day and a half if he worked...

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