U.S. v. Evans
| Decision Date | 30 June 1992 |
| Docket Number | Nos. 90-5186,s. 90-5186 |
| Citation | 970 F.2d 663 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Donald B.W. EVANS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Dominic EVANS, also known as Dominic Mitchell, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James E. JOUBERT, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Perry ROBERTS, III, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Diana J. BRICE, Defendant-Appellant. to 90-5189 and 90-5202. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Jeffrey D. Fischer, argued, Tulsa, Okl., for defendant-appellant in No. 90-5186.
Stanley D. Monroe, argued, Tulsa, Okl., for defendant-appellant in No. 90-5202.
R.W. Byars, Tulsa, Okl., on the brief, for defendant-appellant in No. 90-5187.
William John Patterson, Tulsa, Okl., on the brief, for defendant-appellant in No. 90-5188.
Jack Winn, on the brief, Tulsa, Okl., for defendant-appellant in No. 90-5189.
John S. Morgan, Asst. U.S. Atty. (Tony M. Graham, U.S. Atty., with him on the consolidated brief), Tulsa, Okl., for plaintiff-appellee.
Before LOGAN and EBEL, Circuit Judges, and CARRIGAN, District Judge *.
This case involves an elaborate drug distribution network in Tulsa, Oklahoma. Five defendants were convicted of conspiracy to distribute and to possess with intent to distribute "crack" cocaine in violation of 21 U.S.C. §§ 841 and 846. They were sentenced to long-term imprisonment pursuant to the Sentencing Guidelines.
On appeal, the defendants attack their convictions and sentences on numerous grounds. 1 Most importantly, they contend that (1) the government did not present sufficient evidence to establish a single conspiracy and to connect them to it, and that (2) the sentencing court miscalculated the quantity of drugs attributable to each individual defendant for purposes of the Sentencing Guidelines. After careful consideration of the record, we reverse the conviction of Diana Brice because there was insufficient evidence to establish that she joined the extensive conspiracy that was charged. We affirm the convictions and sentences of the remaining defendants.
On March 7, 1990, Donald B.W. Evans, Jr., his brother Dominic Evans, Diana J. Brice, James E. Joubert, Perry Roberts III, Robert Norfleet, Jr., Brian K. Woods, James J. Backward, Christopher Wyman, and Eric D. Rentie were indicted for conspiracy to distribute and to possess with intent to distribute 50 grams or more of cocaine base ("crack") in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(iii) & 846. 2 The government contends that these individuals were involved in an elaborate drug distribution network.
The indictment generally alleged a conspiratorial agreement with the following parameters: (1) The conspiracy began in early 1987 and continued through March 7, 1990. (2) The conspiracy involved at least ten individuals. (3) The objective of the conspiracy was to distribute crack cocaine. (4) This objective was accomplished by transporting powder cocaine from California to the Northern District of Oklahoma, converting it into crack cocaine, and distributing the crack cocaine. 3
Only Donald Evans, Dominic Evans, Joubert, Roberts, and Brice were prosecuted in the instant case. The remaining defendants pled guilty pursuant to a cooperation agreement with the government. In addition, Carl Walker, a key figure in the drug distribution network, was granted immunity from federal prosecution in return for his agreement to forfeit any drug proceeds and to cooperate with the government.
On May 30, 1990, a jury found the defendants 4 guilty of conspiracy to distribute and to possess with intent to distribute crack cocaine. The district court then reluctantly sentenced the defendants to long-term imprisonment in accordance with the Sentencing Guidelines. Donald Evans was sentenced to a life term of imprisonment without parole; Dominic Evans was sentenced to a 295-month term of imprisonment; Joubert was sentenced to a 210-month term of imprisonment; Roberts was sentenced to a 292-month term of imprisonment; and Brice was sentenced to a 210- month term of imprisonment. The defendants appealed.
Our jurisdiction to hear this case arises under 28 U.S.C. § 1291. We are called upon to assess the validity of the defendants' convictions and the propriety of their sentences. This inquiry is highly fact-specific. Thus, familiarity with the cast of characters, together with an understanding of the often confusing web of events connecting these individuals, is important.
We start with the testimony of Carl Walker. Walker began his short-lived career in the drug business in 1987, buying kilogram quantities (also referred to as "kilos" or "keys") of powder and crack cocaine from an individual named Jesse Griffith--later to become his principal source of cocaine 5--and selling that cocaine throughout Tulsa, Oklahoma. Walker's career ended when he was arrested in Oklahoma City in 1988 and sentenced to 15 years in the state system for his involvement with cocaine.
The government considers Walker to be one of the central figures in the crack distribution network at issue. In fact, the government characterized the network as a wagon wheel conspiracy with Walker at the hub. Thus, the government focused upon his relationship with the defendants when presenting its case. Several of the defendants had direct dealings with Walker. Donald Evans served as Walker's secondary source of crack cocaine, and Joubert and Brice were among his many customers. The remaining defendants had a tenuous relationship with Walker. Roberts and Dominic Evans can be connected to Walker only by their presence at several drug-related meetings between Walker and Donald Evans.
Although the defendants' relationship with Walker is certainly relevant, their relationship to the conspiracy as a whole is the critical inquiry. The defendants' respective roles may be summarized as follows:
Donald Evans was a central figure in the crack distribution network, acting as both importer and dealer. By means of a joint venture with James Backward, he imported powder cocaine from California and converted it into crack cocaine through a process known as "cooking." 6 He then sold this crack to numerous individuals, including Roberts, Walker, Norfleet, and possibly his brother Dominic. Dominic Evans sold and "fronted" 7 powder cocaine to Backward, accompanied Donald Evans to a drug-related meeting with Walker, and told acquaintances that he was waiting for Donald to send him crack cocaine. Roberts purchased crack cocaine from Donald Evans, fronted crack to Rentie, and accompanied Donald Evans to a drug-related meeting with Walker. Joubert purchased crack cocaine from Walker and Rentie, fronted crack to Rentie, and, together with Rentie, borrowed Brice's scales in order to weigh crack. Brice made a single purchase of crack cocaine from Walker through Walker's girlfriend Jackie Smallwood and lent scales to Joubert and Rentie so that they could weigh crack.
The above summary adequately conveys the notion that the defendants and the coconspirators who cooperated with the government were not strangers to one another. However, it is difficult to visualize how interconnected they were and to understand their roles in the conspiracy charged without charting the relationships that underlie this crack distribution network. The diagrams at the end of this opinion should prove useful in these respects. 8
The defendants attack their convictions and sentences on numerous grounds. Two of the questions raised--whether the government presented sufficient evidence to connect the defendants to a single conspiracy and whether the sentencing court properly calculated the quantity of drugs attributable to the defendants for sentencing purposes--are complicated and close issues. They can be answered only by revisiting the age-old problem of what constitutes a conspiracy and confronting the more recent problem of how to control the potential abuse of excessively broad conspiracy charges. Accordingly, those questions will be the focus of this opinion.
The remaining contentions--that the district court erred in refusing to give the jury a multiple conspiracy instruction and in not granting a severance to several of the defendants, that the sentences given to the defendants violate due process and constitute cruel and unusual punishment under the Eighth Amendment, and that the court erroneously denied various motions--are without merit.
We must consider the issues presented for review in light of the expansive, yet somewhat elusive, body of law that governs conspiracy. In so doing, we are mindful that the conspiracy doctrine is inherently subject to abuse and that the government frequently uses conspiracy to cast a wide net that captures many players. Thus, we must be careful to guard against guilt by association, to "scrupulously safeguard each defendant individually, as far as possible, from loss of identity in the mass":
When many conspire, they invite mass trial by their conduct. Even so, the proceedings are exceptional to our tradition and call for use of every safeguard to individualize each defendant in his relation to the mass....
Kotteakos v. United States, 328 U.S. 750, 773, 776, 66 S.Ct. 1239, 1252, 1253, 90 L.Ed. 1557 (1946).
To prove conspiracy, the government must show " that two or more persons agreed to violate the law, that the defendant knew at least the essential objectives of the conspiracy, ... that the defendant knowingly and voluntarily became a part of it," and that the alleged coconspirators were interdependent. United States v. Fox, 902 F.2d 1508, 1514 (10th Cir.) (citation omitted), cert. denied, --- U.S. ----, 111 S.Ct. 199, 112 L.Ed.2d 161 (1990). By necessity, the government may establish these elements by direct or...
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TABLE OF CASES
...1983), 529 Evans, People v., 379 N.Y.S.2d 912 (App. Div. 1975), 558 Evans, State v., 62 P.3d 220 (Kan. 2003), 348 Evans, United States v., 970 F.2d 663 (10th Cir. 1992), 424 Everett, United States v., 41 M.J. 847, 562 Ewing v. California, 538 U.S. 11 (2003), 62 Ewing, United States v., 494 ......