U.S. v. Harrison

Citation942 F.2d 751
Decision Date19 August 1991
Docket NumberNo. 89-5156,89-5156
Parties34 Fed. R. Evid. Serv. 202 UNITED STATES of America, Plaintiff-Appellee, v. John Robert HARRISON, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Lawrence E. Besser (Bill Clay, P.A., with him on the brief), Miami, Fla., for defendant-appellant.

David E. O'Meilla, Asst. U.S. Atty. (Tony M. Graham, U.S. Atty., with him on the brief), Tulsa, Okl., for plaintiff-appellee.

Before SEYMOUR, MOORE and BRORBY, Circuit Judges.

SEYMOUR, Circuit Judge.

John R. Harrison was indicted in 1988 along with ten other defendants for conspiracy to possess with intent to distribute in excess of five kilograms of cocaine in violation of 21 U.S.C. § 846 (1988). Harrison also was charged with interstate travel to facilitate a narcotics enterprise in violation of 18 U.S.C. § 1952 (1988). The indictment alleged that the cocaine conspiracy began in August 1984 and continued to about February 1988 in Tulsa, Oklahoma. The alleged conspiracy revolved around unindicted co-conspirator, Charles "Chuck" F. Seelye, a local Tulsa businessman who was the distributor for various sources of cocaine. Harrison was charged with supplying Seelye with cocaine on several occasions between June 1985 and June 1986. All of his co-defendants pled guilty, and Harrison was tried alone. He was convicted on both counts and sentenced to twenty years under the sentencing guidelines. He appeals both his conspiracy conviction and his sentence, alleging numerous errors on the part of the district court. After careful consideration of the record and Harrison's arguments, we affirm his conviction and remand for a new sentencing.

I.

When reciting the facts of this case, we view the evidence from the perspective that tends to support the jury's verdict. United States v. Wright, 932 F.2d 868, 872 (10th Cir.1991).

Chuck Seelye began distributing cocaine in Tulsa in the early eighties, purchasing ounces of cocaine from his ex-high school classmate, Robert Hardcastle, on numerous occasions between 1980 and 1982. Over the course of a year and a half, Seelye bought eight to twelve ounces from Hardcastle. In the spring or summer of 1984, Seelye stopped buying his cocaine from Hardcastle and began purchasing cocaine from Lester Suarez because Suarez's cocaine was of a better quality. Seelye and Suarez initially dealt in one-ounce transactions and then gradually increased their transactions to four-ounce purchases. In the summer of 1985, Seelye stopped buying cocaine from Suarez because he found an even better quality product at a much cheaper price from Terry Thomas. The first transaction between Thomas and Seelye occurred at Thomas' house on Grand Lake, outside of Tulsa, and involved a one-kilo purchase, which Seelye split with Carl Dawson. Present at Thomas' house were Seelye, Dawson, Thomas and Hardcastle, along with David Ferris, who had sold the cocaine to Thomas. Ferris had bought the cocaine from defendant Harrison as part of a five-kilogram deal. Harrison's source, on the other hand, was William Wood. Wood had sold the cocaine to Harrison through Michael Stanton, who delivered it to Harrison at the Columbia, Missouri Regional Airport. Both Wood and Harrison had then flown the cocaine into Oklahoma. Between June and November 1985, Seelye made approximately five purchases from Thomas, the first four in the eight-ounce to one-pound range, with the final purchase totalling a full kilogram. This cocaine also was supplied to Thomas by Harrison.

In December 1985, Robert Younger told Seelye that he knew Thomas' source and that he could strike a better deal with that source. Seelye agreed to do business with Younger and they traveled to Fort Lauderdale to purchase cocaine directly from Thomas' source, thereby eliminating Thomas as a middleman. Although Seelye was unaware of the identity of the source, other than by the name "Red," the source was, in fact, Harrison. Seelye made one three-kilo buy with the help of Younger. At the end of December 1985, Seelye and David Ferris 1 traveled to the Holiday Inn at the Caulder Race Track in Miami to buy three kilos of cocaine from Harrison. The actual transaction took place a couple of days later on January 2, 1986 at a Howard Johnson's Motel in Key Largo. Subsequent to this deal, Seelye bought cocaine from Harrison through Ferris four or five more times at the same Howard Johnson's.

In the summer of 1986, Seelye met Ferris and Ferris' associate, Casey Karney, at Howard Johnson's in order to consummate another deal with Harrison. For some reason, however, the cocaine that Harrison delivered was unsatisfactory to Seelye and he refused to buy it. Seelye testified: "The last transaction with John didn't turn out. What happened was, we went down there to do a deal with John, and he wasn't capable or able or willing for one reason or another." Rec., vol. IV, at 199. Harrison then informed Ferris of an alternative source, an ex-college football teammate of theirs, Kelley Hostetler. This was the final contact between Harrison and Seelye. Seelye and Ferris contacted Hostetler later that day and bought three kilos from him. Seelye purchased three- to four-kilo quantities of cocaine from Hostetler through Karney on several subsequent occasions.

Then, sometime in 1987, Jack Simpson came by Seelye's liquor store in Tulsa "out of the clear blue sky" and informed Seelye that he could supply cocaine at a price cheaper than that of any of Seelye's previous suppliers. Rec., vol. V, at 363. Seelye stopped buying his cocaine from Hostetler and started to deal with Simpson. He conducted approximately four transactions with Simpson before he stopped selling cocaine in December 1987. Gayle Simon, one of Seelye's buyers, resold Seelye's cocaine into 1988. Seelye turned himself in sometime in early January 1988.

II.

Harrison first argues that a material variance occurred because the proof at trial evidenced multiple conspiracies rather than the single conspiracy alleged in the indictment. Specifically, he alleges that the evidence showed six separate conspiracies, each centering around a different supplier, with Seelye as the only common participant. He argues that he was substantially prejudiced by the testimony recounting conspiracies in which he was not a member because of the likelihood that the jury attributed that evidence to him in its deliberations.

The government responds that a variance did not occur because Harrison's activities showed his participation in a broad conspiracy to distribute cocaine from Florida to Oklahoma through the common "hub" Seelye. Due to his participation from 1985 to 1986 in what the government labels the "Seelye Cocaine Network," Harrison is assertedly a co-conspirator with, and responsible for the actions of, all the individuals with whom Seelye dealt from 1984 through 1988, as outlined in the indictment.

In order to prove that Harrison was guilty of conspiracy, the government must prove that he conspired with at least one other person to violate the law, that he knew the purpose of the conspiracy, and that he knowingly and voluntarily became a participant in it. United States v. Williams, 923 F.2d 1397, 1402 (10th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2033, 114 L.Ed.2d 118 (1991). When the question is not whether the defendant was guilty of a conspiracy, but rather whether she or he was a member of the one, broad conspiracy alleged in the indictment or, of a smaller, separate conspiracy contained within that indictment, our analysis must necessarily focus on the definition of "conspiracy."

"The core of a conspiracy is an agreement to commit an unlawful act." United States v. Esparsen, 930 F.2d 1461, 1471 (10th Cir.1991); see also United States v. Kelly, 892 F.2d 255, 259 (3d Cir.1989) ("The essence of a conspiracy is an agreement."), cert. denied, --- U.S. ----, 110 S.Ct. 3243, 111 L.Ed.2d 754 (1990). To find a single conspiracy, the jury must be convinced beyond a reasonable doubt that the alleged co-conspirators' agreement encompassed a common, illicit goal. See United States v. Dickey, 736 F.2d 571, 582 (10th Cir.1984), cert. denied, 469 U.S. 1188, 105 S.Ct. 957, 83 L.Ed.2d 964 (1985). Thus, in order to establish that Harrison was a member of the broad, single conspiracy alleged, "the government must sufficiently prove that he had a 'unity of purpose or a common design and understanding' with his co-conspirators to possess with the intent to distribute and to distribute cocaine." United States v. Fox, 902 F.2d 1508, 1514 (10th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 199, 112 L.Ed.2d 161 (1990) (quoting United States v. Kendall, 766 F.2d 1426, 1531 (10th Cir.1985), cert. denied, 474 U.S. 1081, 106 S.Ct. 848, 88 L.Ed.2d 889 (1986)). It is therefore necessary " 'to determine what kind of agreement or understanding existed as to each [conspirator],' " United States v. Record, 873 F.2d 1363, 1368 (10th Cir.1989) (quoting United States v. Borelli, 336 F.2d 376, 384 (2d Cir.1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965) (emphasis added)), and for the government to establish with respect to that conspirator that " 'the essential element of interdependence' " existed among the conspirator and her or his alleged co-conspirators, Fox, 902 F.2d at 1514 (quoting Dickey, 736 F.2d at 582.); see also United States v. Varelli, 407 F.2d 735, 743 (7th Cir.1969) (in order to be part of conspiracy defendant must promote venture and make it her or his own). This is because "guilt remains individual and personal, even as respects conspiracies and is not a matter of mass application." Fox, 902 F.2d at 1514; see also United States v. Kotteakas, 328 U.S. 750, 772, 66 S.Ct. 1239, 1251, 90 L.Ed. 1557 (1946).

As we recently stated in United States v. Daily, 921 F.2d 994 (10th Cir.1990),

"[a]s to the existence of a single conspiracy, the focal point of the analysis is whether the alleged co-conspirators were...

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