U.S. v. Gary, 91-6346

• Decision Date: 15 July 1993
• Docket Number: No. 91-6346,91-6346
• Citation: 999 F.2d 474
• Parties: 39 Fed. R. Evid. Serv. 277 UNITED STATES of America, Plaintiff-Appellee, v. Clara GARY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 474

999 F.2d 474

39 Fed. R. Evid. Serv. 277

UNITED STATES of America, Plaintiff-Appellee, v. Clara GARY, Defendant-Appellant.

No. 91-6346.

United States Court of Appeals Tenth Circuit.

July 15, 1993.

Thomas D. McCormick, Oklahoma City, OK, for defendant-appellant.

Kim Taylor, Asst. U.S. Atty. (Timothy D. Leonard, U.S. Atty. with her on the brief), for plaintiff-appellee.

Before TACHA and EBEL, Circuit Judges, and O'CONNOR, Senior District Judge. ^**

EARL E. O'CONNOR, Senior District Judge.

Defendant Clara Gary appeals from her convictions for conspiracy to distribute cocaine and cocaine base in violation of 21 U.S.C. § 846, distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1), and possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). The defendant was indicted with six other persons but was tried separately with co-defendant Lenanier Brown. She was convicted by a jury and sentenced to 360 months imprisonment on each count, to run concurrently, and a supervised release term of five years.

The defendant appeals her convictions on three grounds, contending: (1) there was insufficient evidence to support her convictions; (2) the district court erred in admitting hearsay evidence; and (3) the district court misapplied the United States Sentencing Guidelines. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 and affirm.

I.

The defendant's first contention on appeal is that there was insufficient evidence to support her convictions. In reviewing the sufficiency of the evidence, we must view the evidence in the light most favorable to the government and determine whether any reasonable jury could find the defendant guilty beyond a reasonable doubt. United States v. Garcia, 994 F.2d 1499, 1504 (10th Cir.1993) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). In applying this standard, we are mindful that "[i]t is 'the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from the basic facts to ultimate facts.' " Id. (quoting United States v. Horn, 946 F.2d 738, 741 (10th Cir.1991)). "[W]e cannot sustain a conspiracy conviction if the evidence does no more than create a suspicion of guilt or amounts to a conviction resulting from piling inference on top of inference." Id. "We will overturn a jury's conspiracy conviction only if, after review of both direct and circumstantial evidence, we believe no reasonable jury could find defendant guilty beyond a reasonable doubt." United States v. Young, 954 F.2d 614, 618 (10th Cir.1992).

A conspiracy conviction requires the government to prove " ' 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. Evans, 970 F.2d 663, 668 (10th Cir.1992) (quoting United States v. Fox, 902 F.2d 1508, 1514 (10th Cir.), cert. denied, 498 U.S. 874, 111 S.Ct. 199, 112 L.Ed.2d 161 (1990)), cert. denied, --- U.S. ----, 113 S.Ct. 1288, 122 L.Ed.2d 680 (1993). "An express agreement [to distribute] is not required. A tacit agreement is sufficient." United States v. Hartsfield, 976 F.2d 1349, 1354 (10th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1344, 122 L.Ed.2d 727 (1993). "[T]he jury may presume that a defendant is a knowing participant in the conspiracy when he acts in furtherance of the objective of the conspiracy." United States v. Brown, 943 F.2d 1246, 1250 (10th Cir.1991). " 'Mere presence' at the scene of a crime does not, by itself, prove involvement in an existing conspiracy, although such is a 'material factor.' " United States v. Hamlin, 986 F.2d 384, 386 (10th Cir.) (quoting United States v. Esparsen, 930 F.2d 1461, 1472 (10th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 882, 116 L.Ed.2d 786 (1992)), cert. denied, --- U.S. ----, 113 S.Ct. 2451, 124 L.Ed.2d 667 (1993).

The defendant was indicted along with six other persons for participation in an organization that trafficked cocaine for distribution from southern California to Oklahoma City, Oklahoma. The head of this organization was Raymond Johnson, who had moved to Oklahoma City in 1987 for the specific purpose of dealing cocaine and cocaine base (crack cocaine). Johnson's practice was to bring cocaine from California to Oklahoma City, cook it into crack, and give the crack to distributors who sold it on the street and delivered the proceeds to Johnson or others in his organization. Johnson kept his cocaine and cash in various "stash houses," i.e., Johnson paid the rent and utilities for other members of the organization who held drugs and money for him.

Johnson was arrested in January 1991, and charged with conspiracy to distribute cocaine. Johnson led police to Patsy Cudjo, who was a member of Johnson's organization. Cudjo was responsible for distributing cocaine from Johnson to the street level dealers and for collecting the sale proceeds. The police obtained a warrant to search Cudjo's residence. Cudjo was cooperative, and admitted she had cocaine in the glove compartment of her car. Police seized 20.8 grams of cocaine from her car. Cudjo advised police that she had obtained the cocaine at 333 Northwest 85th Street, the residence of defendant Gary and her co-defendant Lenanier Brown.

The defendant had moved in with co-defendant Brown at 333 Northwest 85th Street in November 1990. The defendant had known both Brown and Raymond Johnson for over thirty years. In December 1990, Johnson began paying Brown to hold cocaine and money for him. The cocaine and cash were kept in a floor safe in one of the bedrooms at the residence. Johnson gave Brown money to cover her living expenses, in amounts ranging from five hundred to a thousand dollars per month.

Cudjo testified that after Johnson's arrest, she picked up $500 from Brown which she "put on [Johnson's] books" at the county jail (meaning that Johnson could use the money for food and other personal expenses at the jail). The defendant was present when Cudjo picked up the $500 from Brown. Johnson testified that when Brown came to visit him in jail, the defendant came with her. Later, Cudjo contacted Brown to arrange to pick up some cocaine that Brown was holding for Johnson. Cudjo intended to sell this cocaine to pay for Johnson's legal expenses. Brown advised Cudjo that she (Brown) did not have the combination to the safe, so Cudjo got the combination from Johnson and relayed it to Brown. Brown informed Cudjo that she could come over and pick up the cocaine. Cudjo went to 333 Northwest 85th Street, where Brown and the defendant were both present. Brown gave the cocaine to Cudjo in the kitchen, while the defendant remained in the front room of the apartment; the defendant had an unobstructed view of the exchange. Cudjo put the cocaine in the glove compartment of her car, where it remained until seized by the police at the time of her arrest.

Following her arrest, Cudjo agreed to cooperate with police by making a controlled buy at 333 Northwest 85th Street. Cudjo placed a phone call to Brown to set up the deal. The police furnished Cudjo with $3,000 in recorded currency as the buy money and transported her to the residence. Once inside, Cudjo gave Brown the $3,000, and Brown gave Cudjo 61.8 grams of cocaine. While Cudjo and Brown were talking in the kitchen, the defendant came out of her bedroom and told them to keep the noise down or they'd wake the children. Brown told Cudjo that the defendant was going to see Johnson the next day. Brown also stated that she (Brown) would let Johnson know Cudjo had dropped off the money for the cocaine. Cudjo left the residence and turned the cocaine over to police.

The police obtained a search warrant for the residence and executed the warrant later that night. Upon entering the apartment, police found the defendant asleep in the southeast bedroom. On the floor between the defendant's bed and the nightstand, police found a paper sack containing approximately 403 grams of cocaine base and 67 grams of cocaine. There was a strong odor of cocaine emanating from the bag; one officer described the odor as "overwhelming." Between the mattress and box springs of the defendant's bed police found two rolls of currency: one was the $3,000 buy money Cudjo gave to Brown, the other was a roll of $1,870. The defendant testified at trial and admitted that she had placed the money under the mattress herself, at Brown's request. In the defendant's closet, police located a jacket with crack cocaine in the pocket. The defendant admitted that she and Brown shared the jacket. A floor safe, formerly in another bedroom, was located in the garage. The safe had previously been drilled open and there was cocaine in the safe. The bag of cocaine found in the defendant's bedroom contained metal shavings that appeared to have come from a drill bit. The defendant was placed under arrest and taken into custody.

These facts, viewed in the light most favorable to the jury's verdict, afford ample support for the defendant's convictions. A defendant's connection to the conspiracy need only be slight, provided there is sufficient evidence to establish that connection beyond a reasonable doubt. Brown, 943 F.2d at 1250. An agreement to distribute drugs can sometimes "rationally be inferred" from "frequent contacts" among the defendants and from "their joint appearances at transactions and negotiations." See Esparsen, 930 F.2d at 1472. We find the evidence is sufficient to sustain the defendant's conviction on the conspiracy count. The evidence is likewise sufficient to support the jury's findings that the defendant possessed with the intent to distribute cocaine and cocaine base and that she distributed cocaine. See United States v. Hager, ...