U.S. v. Foxx

• Decision Date: 22 October 2008
• Docket Number: No. 07-3928.,No. 08-1010.,No. 08-1009.,07-3928.,08-1009.,08-1010.
• Citation: 544 F.3d 943
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Damien M. FOXX, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Willie M. Foxx, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Danny E. Osborne, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

544 F.3d 943

UNITED STATES of America, Plaintiff-Appellee, v. Damien M. FOXX, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Willie M. Foxx, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Danny E. Osborne, Defendant-Appellant.

No. 07-3928.

No. 08-1009.

No. 08-1010.

United States Court of Appeals, Eighth Circuit.

Submitted: June 11, 2008.

Filed: October 22, 2008.

Stuart P. Huffman, Whiteaker & Wilson, PC, Springfield, MO, argued, for appellant Damien M. Foxx.

Shane P. Cantin, Carver & Cantin, LLC, Springfield, MO, argued, for appellant Willie M. Foxx.

David A. Healy, Springfield, MO, argued, for appellant Danny E. Osborne.

Randall E. Eggert, Asst. U.S. Atty., Springfield, MO, argued (John W. Wood, U.S. Atty., Kansas City, MO, on the brief), for appellee.

Before MELLOY, ARNOLD, and BENTON, Circuit Judges.

MELLOY, Circuit Judge.

This case involved a conspiracy to distribute large quantities of marijuana in and around Springfield, Missouri. A jury found Damien M. Foxx, Willie M. Foxx, and Danny E. Osborne guilty of conspiracy to distribute 1,000 kilograms or more of marijuana, a violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Additionally, Damien Foxx was found guilty of money laundering and conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956, and Damien Foxx and Willie Foxx were found to have conspired to purchase property with the proceeds of unlawful activity and subject to criminal forfeiture under 21 U.S.C. § 853. Damien Foxx was sentenced to 210 months' imprisonment. See 21 U.S.C. § 841(b)(1)(A). Willie Foxx and Osborne were sentenced to the statutory mandatory minimum sentence of 120 months' imprisonment. The defendants appeal their convictions and sentences.

The evidence implicating Damien Foxx in the conspiracy to distribute 1,000 or more kilograms of marijuana is overwhelming. Although Willie Foxx and Osborne played lesser roles in the conspiracy, the evidence clearly implicates them and provides a basis for a reasonable jury to conclude Willie Foxx and Osborne could have reasonably foreseen that the conspiracy involved 1,000 kilograms or more of marijuana. We affirm.

I. Background

We present the facts in the light most favorable to the jury's verdict. United States v. Montano, 506 F.3d 1128, 1132 (8th Cir.2007). Lewis Lamonte Smith and Billy Berringer supplied marijuana to Damien Foxx. Evidence at trial included testimony from Smith and Berringer—who testified pursuant to plea agreements— recordings of telephone conversations intercepted from Damien Foxx's telephone, and testimony from investigating officers.

Smith testified he met Damien Foxx in 2000. Smith and Anthony Gilmore had been supplying marijuana to a marijuana dealer who supplied it to Damien Foxx. In 2001, Gilmore left Springfield and Smith contacted Damien Foxx, among others, and offered to sell him marijuana directly. Damien Foxx agreed. Starting in 2001, Smith brought marijuana from Kansas City, where he lived, to Damien Foxx in Springfield. Smith testified Willie Foxx was present "once or twice." Smith started by delivering 50 to 100 pounds of marijuana to Damien Foxx every two-and-a-half to three weeks. This increased to 150 to 200 pounds of marijuana every three weeks by October 2003, and beginning in 2004, Smith was bringing at least 450 to 500 pounds per month to Damien Foxx and another customer, although Damien Foxx received the majority of the marijuana delivered. This continued until Smith was arrested in June 2004 while on his way to deliver 139.5 kilograms of marijuana to Damien Foxx. In addition, officers seized $987,000 from Smith, which he received from selling marijuana to Damien Foxx and smaller dealers in the Springfield area. According to Smith's testimony as to the cost per pound of marijuana, $987,000 was likely earned from selling 1,316 to 1,410 pounds (596.1 to 638.7 kilograms) of marijuana. Based on this testimony, a reasonable jury could conclude Smith delivered at least 2,350 pounds (1053.2 kilograms) to Damien Foxx between October 2003 and June 2004.

After Smith was arrested, Damien Foxx purchased marijuana from Berringer, to whom Damien Foxx had previously sold marijuana. (Berringer had purchased a total of 400 pounds of marijuana from Damien Foxx between October 2003 and June 2004.) Berringer testified he and his girlfriend would deliver marijuana to Damien Foxx at 418 Evergreen, George Dye's residence, which was used for drug transactions. Dye—the Foxxes' cousin—and Willie Foxx were sometimes present. Berringer admitted to making a 50-pound delivery of marijuana on December 10, 2004, a 20-pound delivery on December 14, a 60-pound delivery on December 23, a 55-pound delivery on January 12, 2005, a 60-pound delivery on January 14, a 100-pound delivery on January 17, and a 142-pound delivery on January 24. During December 2004 and January 2005, Berringer delivered 487 pounds (approximately 220 kilograms) of marijuana to Damien Foxx, and between June 2004 and January 2005, Berringer delivered at least 1,000 pounds (approximately 455 kilograms) of marijuana to him.

In November 2004, law enforcement obtained court permission to monitor Damien Foxx's telephone conversations. Sixty of these conversations between Damien Foxx and Willie Foxx, Danny Osborne, and others were played at trial. Many of these conversations, which took place between December 3, 2004, and January 30, 2005, indicated Damien Foxx was involved in marijuana transactions. Damien Foxx said in a telephone call to Ryan Dill, another person involved in marijuana transactions, that he had to "weigh this shit out" and wanted "Ben" to bring the scale. Later, Damien Foxx called Ben Christian asking for the scale. In another conversation, Damien Foxx called Willie Foxx and said Damien Foxx was "over at G's house" and was going to "[w]eigh it all out." "G" is George Dye.

Damien Foxx talked with Berringer and complained that the marijuana in the latest delivery was dry, unlike the previous delivery. Berringer explained the marijuana was dry because his "guy said he bought like a ton." Damien Foxx told Berringer that Damien Foxx would pay him by noon.

In another conversation, Damien Foxx called Willie Foxx asking whether "anybody complain[ed] about theirs" and whether "it smoke[d] good." Willie Foxx laughed and said "that shit ain't no, ain't really no good." Willie Foxx indicated customers would "buy[ ] up the dro before they buy that." "Dro" is slang for higher quality marijuana or hydroponic marijuana, according to an officer who testified at trial.

In other conversations, Willie Foxx contacted Damien Foxx asking for more marijuana. Other conversations include Damien Foxx taking clients' orders and discussing what Damien Foxx gave to clients and how business would be slower because one of his "guys" got arrested. Damien Foxx also placed orders with Berringer and discussed quantities of marijuana ordered and how much orders would cost. In one conversation, Damien Foxx told Berringer he would "probably have like 60 for [Berringer]." Berringer testified at trial that this referred to the $60,000 Damien Foxx would pay him for marijuana.

On December 22, Damien Foxx and Billy Berringer talked on the phone, and Berringer told Damien Foxx how much marijuana Berringer had for Damien Foxx. Damien Foxx replied that that amount would work and that he had sold most of it already. Berringer said his "guy should be back first thing Friday morning." The next day, Berringer called Damien Foxx and said he was "trying to get rid of this stuff." They agreed to meet "at that usual house" in 20-25 minutes. Law enforcement later observed a green Cadillac Escalade belonging to Berringer and a Chevrolet Blazer driven by Berringer's girlfriend arrive at 418 Evergreen. Damien Foxx and Berringer met at the rear of the Blazer and removed boxes from the Blazer and put them in the back of Foxx's white Escalade, which was in front of the house.

Officers observed a similar transaction at 418 Evergreen between Berringer and his girlfriend and Damien Foxx on December 26. Willie Foxx was also present. After this transaction, law enforcement intercepted a call between Damien Foxx and Dill where Damien Foxx said he had "just picked it up," and Dill responded he would "be there in about ten minutes." Later, a vehicle arrived at 418 Evergreen, and Foxx removed a box he had received from Berringer and put it inside the vehicle.

Also on December 26, Lameeka Jeffries, Damien Foxx's girlfriend and Danny Osborne's niece, told Damien Foxx that Osborne needed to talk with him. Osborne and Damien Foxx talked on the phone and Osborne asked to meet Damien Foxx "face to face" because he did not want to discuss the issue on the phone. They agreed to meet later.

Later that day, Damien Foxx referenced this meeting with Osborne. Damien Foxx told Berringer that Osborne's previous marijuana supplier had been arrested, so Osborne would be purchasing marijuana from Damien Foxx. As a result, Damien Foxx told Berringer he wanted 100 to 150 more pounds of marijuana per month. Damien Foxx referenced Illinois and indicated the customers would "pay all cash." Berringer told Damien Foxx he could not supply more, but that he would work on it. On January 12, a Wednesday, Berringer told Damien Foxx he was bringing "55," but that more would arrive on Friday. On Friday, Berringer said that he had another 50 but could "get ten more from this other guy." Damien Foxx said that would not help to supply Osborne because Damien Foxx wanted to "keep [his] regulars happy" and "tak[e] care of the people around here first." Damien Foxx tried to get enough marijuana to supply Osborne and told Osborne he was having difficulties. Later, Damien Foxx contacted Osborne to tell him "it ain't come through like [he] thought it was" but that he would probably pick it up Monday or Tuesday morning. Finally, Osborne told Damien Foxx he would come...