U.S. v. Keck

• Decision Date: 01 July 2011
• Docket Number: No. 10–8008.,10–8008.
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Barry KECK, a/k/a Lonekoyte, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

643 F.3d 789

UNITED STATES of America, Plaintiff–Appellee,

v.Barry KECK, a/k/a Lonekoyte, Defendant–Appellant.

No. 10–8008.

United States Court of Appeals, Tenth Circuit.

July 1, 2011.

Thomas A. Fleener, Fleener & Vang, LLC, Laramie, WY, for Appellant.Stuart S. Healy III, Assistant United States Attorney (Christopher A. Crofts, United States Attorney, with him on the brief) Office of the United States Attorney, Cheyenne, WY, for Appellee.Before MURPHY, TYMKOVICH, and GORSUCH, Circuit Judges.TYMKOVICH, Circuit Judge.

A federal jury found Barry Keck guilty on eight counts relating to a drug and money-laundering conspiracy based in Wyoming. Keck now appeals his conviction, contending the jury's verdict rests on insufficient evidence and improper evidentiary decisions by the district court. He also contends the district court erred in applying the United States Sentencing Guidelines (USSG or the Guidelines). We find no legal basis to reverse the conviction, and any error in applying the Guidelines did not affect his sentence.

Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM.

I. Background

Barry Keck was the ringleader of a drug conspiracy to distribute methamphetamine in several Mountain West states. About once a week, he would travel to Oregon to purchase drugs for distribution in Wyoming, Montana, and South Dakota. In 2008, agents from the Drug Enforcement Agency (DEA) and the Wyoming Division of Criminal Investigation (DCI) began an investigation, gathering evidence from confidential informants, controlled purchases, physical and video surveillance, and other sources. They then received authorization from the district court to intercept calls and text messages sent or received by Keck's mobile phone. After monitoring Keck's phone “seven days a week ... 15 to 18 hours a day” between November 2008 and January 2009, DEA and DCI agents intercepted 8,078 calls, 3,181 of which were deemed pertinent to the conspiracy.

In several intercepted calls, Keck discussed distributing methamphetamine and traveling to Oregon to purchase drugs from a distributor. DEA agents also recorded Keck negotiating drug prices and involving his 17–year–old daughter in drug sales. Finally, on some intercepted calls Keck discussed wire transfers used as part of the conspiracy.

In 2009, Keck was charged with seven counts relating to a conspiracy to possess with intent to distribute methamphetamine and one count related to a conspiracy to launder money. He pleaded not guilty and was tried before a jury, which convicted him of all counts. After the district court sentenced him to life imprisonment, Keck timely appealed.

II. Discussion

Keck makes the following contentions on appeal: (1) the jury lacked sufficient evidence to support his conviction; (2) the district court made several evidentiary errors that affected the trial's outcome; and (3) the district court's application of the Guidelines improperly resulted in a sentence of life imprisonment. We find none of these arguments persuasive, and affirm for the reasons set forth below.

A. Sufficiency of the Evidence

Keck was convicted of participating in two criminal conspiracies: a conspiracy to distribute methamphetamine and a conspiracy to launder money. He contends the testimony of government witnesses did not adequately provide direct or circumstantial evidence of either conspiracy. We disagree.

The sufficiency of the evidence to support a jury's verdict is reviewed de novo. United States v. Hanzlicek, 187 F.3d 1228, 1239 (10th Cir.1999). On appeal, we “ask only whether taking the evidence—both direct and circumstantial, together with the reasonable inferences to be drawn therefrom—in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt.” Id. (quotation marks and citation omitted). The evidence supporting the conviction must be substantial and do more than raise a suspicion of guilt. See United States v. Taylor, 113 F.3d 1136, 1144 (10th Cir.1997). In conducting this review, we “may neither weigh conflicting evidence nor consider the credibility of witnesses.” United States v. Pappert, 112 F.3d 1073, 1077 (10th Cir.1997) (quotation marks and citations omitted). It is for the jury, as the fact finder, to resolve conflicting testimony, weigh the evidence, and draw inferences from the facts presented. See United States v. Nieto, 60 F.3d 1464, 1469 (10th Cir.1995).

1. Evidence of the Drug Conspiracy

To prove a criminal conspiracy, the government must show: (1) an agreement with another person to violate the law; (2) knowledge of the essential objectives of the conspiracy; (3) knowing and voluntary involvement; and (4) interdependence among the alleged conspirators. United States v. Evans, 970 F.2d 663, 668 (10th Cir.1992).

At trial, the government presented the following evidence that Keck participated in a criminal conspiracy to violate the Controlled Substance Act, 21 U.S.C. §§ 801–971: (1) a series of wire-tap recordings and intercepted text messages in which Keck personally discussed the purchase, transportation, and redistribution of methamphetamine; (2) his daughter's testimony about his role in the conspiracy, including his regular travel to Oregon to purchase drugs; (3) a DEA agent's expert and lay testimony regarding the evidence gathered during the investigation; and (4) drugs seized during the investigation. Altogether, the evidence easily proves all the elements of criminal conspiracy.

Keck contends the DEA agent's testimony, “we kind of put it all together in 2008,” is vague and amounts to an admission that the agent did not have personal knowledge of the methamphetamine conspiracy. R., Vol. 3 at 226. But he was only referring to the information available at the beginning of the investigation, before investigators received authorization to monitor Keck's phone—as his next sentence indicates. See id. (“We put it all together from 2008 just to start our investigation ... for me to officially start the investigation.”) This early information was gathered over several years from witness interviews, telephone pin registers, recordings of drug purchases made by a confidential informant, and other sources. Id. at 224–28.

Keck also suggests the DEA agent could not identify him on the intercepts because he had no firsthand knowledge of Keck's voice. In fact, the DEA agent testified he became familiar with Keck's voice after “listen[ing] to him every day for months.” Id. at 235. The thousands of intercepted calls involving Keck support this testimony. The DEA agent also stated he was able to link the recorded voice to Keck through physical surveillance. Id. at 236.

In sum, the record amply demonstrates the DEA agent had personal knowledge of Keck's criminal activities. When combined with the telephonic intercepts, his daughter's testimony, and the drugs themselves, the evidence was sufficient to support Keck's drug conspiracy conviction.

2. Evidence of the Money–Laundering Conspiracy

Keck also challenges the evidence supporting his money-laundering conviction. The elements of a money-laundering conspiracy require the government to prove: (1) an agreement with another person to knowingly conduct a financial transaction involving the proceeds of specified unlawful activity, with the intent to further specified unlawful activity, in violation of 18 U.S.C. § 1956; (2) knowledge of the essential objectives of the conspiracy; (3) knowing and voluntary involvement; and (4) interdependence among the alleged conspirators. See Evans, 970 F.2d at 668; 18 U.S.C. § 1956(a)(1)(A)(I).

The government presented the following evidence in relation to the money-laundering conspiracy: (1) Western Union and MoneyGram wire-transfer records; (2) testimony from Western Union and MoneyGram employees that Keck was involved in wire transfers; (3) the daughter's testimony that she wired money to her father as part of the methamphetamine conspiracy, including money from individuals who owed Keck for previously fronted drugs; and (4) telephonic intercepts related to money transfers used in the criminal conspiracy, including a recorded phone call in which a co-conspirator informs Keck she wired money to their methamphetamine source to help pay for the drugs that Keck was about to purchase.

Keck contends that, because the Western Union and MoneyGram employees could only testify that Keck's name appeared on money transfer records, the government failed to provide witness testimony that the transfers were used for money laundering and drug purchases. This misrepresents the evidence.

In fact, the government did present witness testimony by the defendant's daughter that money transfers were used for drug purchases. Specifically, she testified she wired money to her father almost every time he traveled to Oregon to purchase drugs. She also explained she would collect the money she wired to Oregon from individuals in Wyoming to whom her father had fronted drugs. And occasionally, her father would instruct her to distribute drugs and then wire the sale proceeds to him in Oregon. This testimony, which is corroborated by wire-transfer records and the telephonic intercepts, is sufficient evidence to support Keck's conviction for conspiring to launder money.

B. Evidentiary Decisions

Keck next challenges the district court's decisions to exclude certain defense exhibits and to admit wire-transfer records. In particular, he claims the district court abused its discretion by refusing to permit the use of exhibits demonstrating how his daughter's cooperation with the government would reduce her sentence. Furthermore, he argues the admission of the wire-transfer records violated his Sixth Amendment right to confrontation. Both evidentiary decisions, he alleges, caused reversible error and affected his trial's outcome.

Evidentiary rulings “generally are committed to the very broad discretion of the trial judge, and they may constitute an abuse...