U.S. v. Graham

• Decision Date: 06 August 1996
• Docket Number: 93-3218 and 94-3001,Nos. 93-3217,s. 93-3217
• Parties: , 44 Fed. R. Evid. Serv. 778 UNITED STATES of America, Appellee v. Perry A. GRAHAM, Appellant. UNITED STATES of America, Appellee v. Terrence A. TERRELL, Appellant. UNITED STATES of America, Appellee v. Roger V. SMITH, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1466

83 F.3d 1466

317 U.S.App.D.C. 418, 44 Fed. R. Evid. Serv. 778

UNITED STATES of America, Appellee v. Perry A. GRAHAM, Appellant.

UNITED STATES of America, Appellee v. Terrence A. TERRELL, Appellant.

UNITED STATES of America, Appellee v. Roger V. SMITH, Appellant.

Nos. 93-3217, 93-3218 and 94-3001.

United States Court of Appeals, District of Columbia Circuit.

Argued Dec. 7, 1995.

Decided May 21, 1996.

Rehearing and Suggestion for Rehearing In Banc Denied Aug. 6, 1996.

[317 U.S.App.D.C. 421] Appeals from the United States District Court for the District of Columbia (No. 92cr00287-01), (No. 92cr00287-02) and (No. 92cr00287-03).

Robert E. Sanders, Washington, DC, appointed by the court, argued the cause and filed the briefs for appellant Terrence A. Terrell.

Mary E. Davis, Washington, DC, appointed by the court, argued the cause and filed the briefs for appellant Roger V. Smith. Pleasant S. Brodnax, III, Alexandria, VA, appointed by the court, was on the briefs for appellant Perry A. Graham.

E. Vaughn Dunnigan, Assistant United States Attorney, argued the cause for appellee with whom Eric H. Holder, Jr., United States Attorney, John R. Fisher, Roy W. McLeese, III, Lynn C. Leibovitz, Elizabeth H. Danello, and Geoffrey Bestor, Assistant United States Attorneys, were on the brief. Elizabeth Trosman, Assistant United States Attorney, Washington, DC, entered an appearance.

Before: RANDOLPH, ROGERS and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge:

Perry A. Graham, Terrence A. Terrell, and Roger V. Smith appeal their convictions of conspiring together and with others to distribute 50 grams or more of crack cocaine and of several individual counts of distributing crack cocaine. They also appeal their life sentences. Although we affirm their convictions, we vacate their sentences and remand for the district court to resolve their factual challenges to the presentence report as required by Federal Rule of Criminal Procedure 32(c)(1) and to make individualized findings as to whether the amount of crack cocaine attributed to each appellant was within the scope of the conspiratorial agreement entered into by that appellant and reasonably foreseeable by him. We also direct the district court to determine whether Terrell's claimed vulnerability to prison abuse warrants a downward departure and whether record evidence exists to support the upward enhancement of his sentence for his alleged managerial role.

I.

The three appellants in this case were charged with conspiring together and with others from July 1990 to January 1992 to distribute and possess with intent to distribute 50 grams or more of cocaine base (crack) in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii) and 21 U.S.C. § 846. Appellants were also charged with eleven individual counts of distribution on specific dates between July 1990 and January 1992 in violation of 21 U.S.C. § 841(a)(1). Other members of the alleged conspiracy were indicted separately; some, not now before us, were charged as "drug kingpins"; others pleaded guilty before trial.

Viewed in the light most favorable to the Government, see United States v. Tarantino, 846 F.2d 1384, 1391 (D.C.Cir.), cert. denied, 488 U.S. 840, 109 S.Ct. 108, 102 L.Ed.2d 83, and 488 U.S. 867, 109 S.Ct. 174, 102 L.Ed.2d 143 (1988), the evidence at trial established that the three appellants were part of the "Newton Street Crew," a cocaine trafficking organization involving more than twenty people which operated on Newton Street between 14th Street and 16th Street from June 1987 until police shut it down through mass arrests on July 29, 1992. The Newton Street Crew consisted of three different "cliques" or groups of people selling drugs together at three Newton Street locations. Mark Hoyle and John McCullough, the heads of the Newton Street Crew, distributed crack through "lieutenants" in the three cliques, who in turn distributed the drugs to "runners." Runners sold the crack to other runners or directly to customers.

Appellants were members of the same clique. They operated at the center of Newton Street between 14th Street and 15th Street. Appellants Graham and Smith were lieutenants. After receiving drugs from Hoyle, they distributed them to runners, but sometimes sold the drugs directly themselves. Operating just below Graham and Smith, Terrell functioned somewhere between lieutenant and runner: he received drugs from Graham and Frank Lynch, another Crew lieutenant not before us, selling the drugs directly to customers or through runners.

After the jury convicted appellants of all counts, the district court sentenced them to life imprisonment on the conspiracy count and one to ten years on each of the remaining counts, all sentences to run concurrently. Appellants now challenge their convictions and sentences. II.

We begin with appellants' challenges to their convictions.

SINGLE V. MULTIPLE CONSPIRACY

Appellants first argue that the record contains insufficient evidence to convict them of the conspiracy charged in the indictment. They argue that instead of proving a single overarching conspiracy in which all three appellants were working together and with others towards a common goal, the Government's evidence establishes only multiple conspiracies--separate, unrelated, or at most casually related, transactions. According to appellants, the evidence establishes no interdependence or mutual benefit between the "cliques" selling drugs on Newton Street, or between appellants' clique and Hoyle. Appellants second and related claim is that the evidence of multiple conspiracies presented at trial materially varied from that charged in the indictment, depriving them of a fair trial. Variance is grounds for reversal only if appellants can show that the variance is material and that it substantially prejudiced them, such as by causing the jury to "transfer evidence from one conspiracy to a defendant involved in another." Tarantino, 846 F.2d at 1391 (citation omitted).

Our role in reviewing these claims is limited. "[V]iewing the evidence in the light most favorable to the prosecution," we ask whether "any rational trier of fact could have found the essential elements of [conspiracy] beyond a reasonable doubt." United States v. Washington, 12 F.3d 1128, 1135-36 (D.C.Cir.) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560 (1979)) (internal quotation marks omitted), cert. denied, --- U.S. ----, 115 S.Ct. 98, 130 L.Ed.2d 47 (1994). The essential element of conspiracy is an agreement with at least one other person to violate the law. See United States v. Lam Kwong-Wah, 924 F.2d 298, 303 (D.C.Cir.1991). In determining whether a single conspiracy existed, as opposed to separate unrelated activities or multiple conspiracies, we look for several factors, including whether participants shared a common goal ("such as the possession and distribution of narcotics for profit"); interdependence between the alleged participants in the conspiracy; and, though less significant, overlap among alleged participants. Tarantino, 846 F.2d at 1393.

Applying these standards, we review the record to determine whether the Government presented sufficient evidence to permit the jury to find that a drug-selling conspiracy controlled by Mark Hoyle and joined by appellants operated on Newton Street. Six Government witnesses testified to the existence of the conspiracy and to appellants' participation in it: Kenneth Forgy, Jr., an associate of Mark Hoyle, who distributed drugs on Newton Street until his arrest in 1989; Lazaro Santa Cruz and Frank Lynch, lieutenants in the Newton Street Crew; William "Poopie" Woodfork, a member of appellants' clique; Cornelius "Googie" Wooten, a member of the Newton Street Crew distributing drugs on the 16th Street end of Newton Street; and Anthony Pratt, a former drug dealer turned informant. Several of these witnesses testified that Hoyle was the common source of drugs on Newton Street, tr. 7/16/93, at 28; that Hoyle, "the boss," managed the "business" on Newton Street, tr. 7/16/93, at 34; 7/20/93, at 60-61; that appellants sold crack supplied by Hoyle--Graham and Smith receiving from Hoyle directly and Terrell receiving his share from Graham, tr. 7/29/93, at 30; and that appellants either paid Hoyle upfront or after selling their share of drugs on the street, tr. 7/26/93, at 31-34. According to the Government's witnesses, appellants were members of one of the three cliques operating as part of the Newton Street Crew. Tr. 7/20/93, at 10-11, 13; 7/26/93, at 31; 7/29/93, at 25-29. Witnesses testified that although the cliques did not share profits with members of other cliques and sometimes competed with each other for sales, tr. 7/27/93, at 130-31, they all shared a common goal: selling Hoyle's cocaine for profit. See, e.g., tr. 7/15/93, at 178-79 ("[T]here were different little cliques amongst one huge clique on Newton Street, but all of us got our drugs from [Hoyle]"). Hoyle supplied the cliques and all proceeds went to him. Tr. 7/29/93, at 41-43. Moreover, the cliques were interdependent. Participants served as police look-outs for other We have no doubt that this evidence was sufficient for a reasonable juror to conclude that appellants and others shared the common goal of distributing crack cocaine for profit and that the cliques were dependent on each other and on Hoyle. Because the evidence was sufficient, any variance from the indictment did not substantially prejudice the appellants. See United States v. Childress, 58 F.3d 693, 709-15 (D.C.Cir.1995) (finding no prejudicial variance where sufficient evidence existed of single conspiracy), cert. denied, --- U.S. ----, 116 S.Ct. 825, 133 L.Ed.2d 768 (1996); Tarantino, 846 F.2d at 1393-94 (analyzing variance under sufficiency standard).

[317 U.S.App.D.C. 424] cliques. Tr. 7/20/93, at 65. When one clique ran out of cocaine, buyers were sent to...