U.S. v. Bell, s. 97-6164

• Decision Date: 04 September 1998
• Docket Number: 97-6167,Nos. 97-6164,s. 97-6164
• Parties: 98 CJ C.A.R. 5071 UNITED STATES of America, Plaintiff-Appellee, v. Harold Eugene BELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1205

154 F.3d 1205

98 CJ C.A.R. 5071

UNITED STATES of America, Plaintiff-Appellee, v. Harold Eugene BELL, Defendant-Appellant.

Nos. 97-6164, 97-6167.

United States Court of Appeals, Tenth Circuit.

Sept. 4, 1998.

John E. Dowdell, Norman, Wohlgemuth, Chandler & Dowdell, Tulsa, Oklahoma, for appellant.

Frank Michael Ringer, Assistant U.S. Attorney (Patrick M. Ryan, United States Attorney, with him on the briefs), Oklahoma City, Oklahoma.

Before SEYMOUR, ANDERSON, and LUCERO, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Following a jury trial, Harold Eugene Bell was convicted of conspiracy to distribute cocaine powder and cocaine base, "crack," in violation of 21 U.S.C. §§ 841(a)(1) and 846. In this consolidated appeal, ¹ Bell contends that the evidence was insufficient to support his conviction. He also contends that, because his conviction was based on a general jury verdict which failed to specify the object of the conspiracy (i.e., whether the conspiracy involved cocaine powder or whether it involved cocaine base), it must be reversed and the case must be remanded for a new trial. Alternatively, he contends that his sentence must be vacated, and that he must be resentenced under the assumption that the conspiracy involved only cocaine powder. We affirm.

BACKGROUND

On May 21, 1996, Bell was indicted on one count of conspiracy "to possess with intent to distribute and to distribute cocaine powder and cocaine base, 'crack', a Schedule II Controlled substance, in violation of Title 21, United States Code, Section 841(a)(1)." R. Vol. I, Tab 5/21/96 ² at 2. As required by 21 U.S.C. § 851, the government filed an information to establish Bell's prior felony drug offense convictions for purposes of invoking the increased sentence provisions for repeat offenders under 21 U.S.C. § 841. Id., Tab 1/13/97.

Three codefendants, Tayoun Bell (nicknamed "E. T."), Taleno Bowens (nicknamed "Nino"), and Aaron Gibson, were also named along with Bell in the conspiracy count of the indictment, as well as in separate counts charging distribution. However, on the day the trial began, Bell's codefendants entered into plea agreements: Tayoun Bell and Aaron Gibson each pleaded guilty to a distribution count, and Taleno Bowens pleaded guilty to the conspiracy count.

According to the undisputed trial testimony of Burgundy Pierce, in March 1995, Bell transported cocaine and crack cocaine from California and arrived at her apartment in Oklahoma City with the drugs taped to his body. R. Vol. III at 77. Bell met E.T. and Nino at the apartment, and the three men "cut [the crack cocaine] up and split it up and sold it." Id. at 78; see also id. at 77, 104.

                Bell and others, including Aaron Gibson, cooked the powder cocaine into crack cocaine, and then "cut it up and then bagged it up" for sale. 3  Id. at 79;  see also id. at 87.   From March through early May, Pierce observed that Bell would make trips back and forth from California to Oklahoma to bring in drugs for distribution to other dealers.  Id. at 81-82.   Although both Pierce and the prosecutor occasionally referred simply to the "drugs" which where being distributed and sold in Pierce's apartment, when the prosecutor specifically asked, "what drug ... are you talking about," Pierce answered, "Crack cocaine."  Id. at 87
                

Apparently, Bell returned to California sometime in May 1995 and did not come back to Oklahoma. However, after he left, he made several long distance collect calls to Pierce's apartment, to direct others to pick up drugs for transport back to Oklahoma. On one occasion at the end of July, Bell called to ask Pierce to fly to California to pick up "a certain amount of drugs." Id. at 89. On at least four or five other occasions, he called the apartment and asked to speak to other dealers, generally E.T. or Nino. Id. at 105. During those calls, he would often ask E.T. to fly back and pick up "a certain amount of crack cocaine," to bring back to Oklahoma. Id. Although Pierce was not a party to those conversations, after the conversation ended, E.T. would generally tell the others about the conversation and ask if anyone wanted to go in on the deal. ⁴ Id.

Taleno Bowens ("Nino"), one of Bell's codefendants who had pleaded guilty to the conspiracy charge prior to trial, also testified for the government. Bowens testified that he made his living selling crack cocaine, which he purchased from Bell and the other codefendants. Id. at 110. According to his undisputed testimony, on at least ten occasions, he purchased $200 quantities (six grams) of crack cocaine from Bell, and he purchased $500 quantities (thirteen grams) from Bell at least six times. Id. at 110-11, 115. Moreover, on two separate occasions Bell fronted Bowens two ounces of crack cocaine on credit. Id. at 115, 127. The street value of the fronted crack was at least $4800, id. at 118, and after Bowens sold the fronted crack, he paid Bell a total of $4000 for it. Id. at 127. Bowens also testified to seeing Bell with twelve ounces of crack cocaine taped to his body. Id. at 111.

Following Bell's conviction, a Presentence Investigation Report ("PSR") was prepared. See R. Vol. V. Based on the quantity of drugs involved (340.2 grams of cocaine base), the filed PSR sets Bell's offense level at 34, and then adds 2 points for possession of a firearm, for a total offense level of 36, and it sets Bell's criminal history category at VI. ⁵ See

                id. pp 19, 20, 39.   In the "Sentencing Options" section, the PSR noted that, pursuant to 21 U.S.C. § 841(b)(1)(A), Bell's conviction subjected him to a minimum term of 10 years imprisonment and a maximum term of life.  R. Vol.  V p 75.  However, the PSR further noted that "due to the sentencing enhancement filed under 21 U.S.C. § 851, the defendant shall be sentenced to a mandatory term of life imprisonment without release, pursuant to 21 U.S.C. § 841(b)(1)(A)."  Id. Bell objected to the sentence enhancement, and at the sentencing hearing, his counsel argued that it was unconstitutional to single him out from his codefendants who had entered guilty pleas:  "In this case we have three defendants, ... and each of these defendants in this case was charged with, essentially, the same criminal conduct, which is distribution of crack cocaine."   R. Vol.  IV at 183.  The district court overruled the constitutional objection, and Bell does not raise it on appeal.  Id. at 187
                

DISCUSSION

A. Sufficiency of the Evidence

Bell contends that the evidence was insufficient to support his conviction for conspiracy. Sufficiency of the evidence presents a question of law which we review de novo. United States v. Wilson, 107 F.3d 774, 778 (10th Cir.1997). We will affirm if the evidence and reasonable inferences drawn therefrom, viewed in the light most favorable to the government, would allow a reasonable jury to find the defendant guilty beyond a reasonable doubt. United States v. Johnson, 130 F.3d 1420, 1428 (10th Cir.1997), petition for cert. filed, (U.S. Apr. 1, 1998) (No. 97-8558). In examining the evidence, we consider the collective inferences drawn from the evidence as a whole, and we will not overturn a conviction unless no reasonable jury could have reached the disputed verdict. Id.

"To find a defendant guilty of conspiracy in violation of 21 U.S.C. §§ 841(a)(1) and 846, the jury must find, beyond a reasonable doubt, (1) an agreement with another person to violate the law, (2) knowledge of the essential objectives of the conspiracy, (3) knowing and voluntary involvement, and (4) interdependence among the alleged conspirators." United States v. Carter, 130 F.3d 1432, 1439 (10th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1856, 140 L.Ed.2d 1104 (1998).

Bell argues that the evidence merely shows a buyer-seller relationship. We disagree. In this case, the record contains ample evidence for a rational trier of fact to find each of the essential elements of conspiracy beyond a reasonable doubt. Thus, although there is no direct evidence of an agreement, a jury may infer an agreement constituting a conspiracy " 'from the acts of the parties and other circumstantial evidence indicating concert of action for the accomplishment of a common purpose.' " Id. (quoting United States v. Johnson, 42 F.3d 1312, 1319 (10th Cir.1994)). Here, the uncontroverted evidence showed that Bell brought in twelve ounces of crack cocaine to an apartment where E.T. and Nino, two of his alleged coconspirators, were waiting. Once Bell arrived, the three men split up the crack cocaine and packaged the drug in bags suitable for street sale. In fact, Nino did purchase amounts for street sale, and, moreover, on at least two occasions, Bell "fronted" him crack cocaine on credit.

Given the strong circumstantial evidence, the jury could have reasonably inferred that Bell, E. T., and Nino had agreed to distribute crack cocaine. Based on the same evidence, a reasonable jury could infer that Bell had knowledge of the essential objectives of the conspiracy. Id. at 1440 (noting that a jury may infer a defendant's guilty knowledge and voluntary participation from the surrounding circumstances). Moreover, since a jury may presume a defendant who acts in furtherance of the objective of the conspiracy is a knowing participant in that conspiracy, id., we conclude there was sufficient evidence to satisfy the third element.

Finally, "[i]nterdependence exists where each coconspirator's activities constitute essential and integral steps toward the realization of a common, illicit goal." Id. Here, the jury reasonably could have inferred that 1) through March, April, and part of May 1995, Bell was the primary courier who brought crack cocaine from California to Oklahoma; later, he was the person who arranged pick-ups for other couriers; 2) E.T. assisted Bell in arranging the deliveries and further distri- butions; and 3) Nino assisted both Bell and E.T. by purchasing the crack cocaine on a wholesale basis from them...