U.S. v. Lauder

Decision Date08 June 2005
Docket NumberNo. 04-2120.,04-2120.
Citation409 F.3d 1254
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Weston Charles LAUDER III, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Thomas L. Wright, El Paso, TX, (Manuel Barraza, El Paso, TX, with him on the briefs), for Defendant-Appellant.

Robert D. Kimball, Assistant United States Attorney, (David C. Iglesias, United States Attorney, and Laura Fashing, Assistant United States Attorney, Albuquerque, NM, on the brief), Albuquerque, NM, for Plaintiff-Appellee.

Before O'BRIEN, McCONNELL, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

In May 2004, a jury in the United States District Court for the District of New Mexico convicted Weston Charles Lauder III on the following four counts related to the possession and distribution of illegal drugs: Conspiracy under 21 U.S.C. § 846 to violate 21 U.S.C. § 841(a)(1) and (b)(1)(A)-(B) (Count I); maintaining a building for the manufacture and distribution of cocaine base in violation of 21 U.S.C. § 856(a)(1) (Count II); and possession with intent to distribute 50 grams or more of cocaine base (Count III) and 500 grams or more of powder cocaine (Count IV) within 1,000 feet of a school under 21 U.S.C. § 860(a).

On appeal, Lauder alleges that (1) the evidence was insufficient to support the jury's verdict, (2) a new trial is needed due to an alleged violation of Lauder's Fifth Amendment right to remain silent, (3) the district court erred in admitting fingerprint evidence, and (4) the district court erred in the amount of drugs it attributed to Lauder for sentencing purposes, which error violated Lauder's Sixth Amendment rights under United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

For the reasons set forth below, we AFFIRM the district court's order of conviction and the resulting sentence.

I. BACKGROUND

On September 16, 2002, acting pursuant to a search warrant based on information supplied by a confidential informant, a Lea County Drug Task Force conducted a search of a residence in Hobbs, New Mexico. According to the warrant, the house belonged to Kena LaShawn Wright, but somebody referred to as "BL" also resided there. Upon arrival, the officers knocked on the door and announced they had a warrant to search the house. Although the officers heard footsteps running through the house, nobody answered the door. The officers then kicked open the door, entered the house, and found Weston Charles Lauder III lying face down and spread-eagle in the kitchen area. Nobody else was in the house.

During the search, the officers found large quantities of cocaine, crack, and money. In the master bedroom, for example, the search revealed approximately 124 grams of powder cocaine and $5,630 in the pocket of a brown sweatshirt that was hanging in the closet. There was also a blue jacket found in the closet that contained approximately 49.2 grams of crack cocaine and negligible amounts of marijuana in its hood. A dresser drawer contained six grams of crack cocaine and $295. The officers also retrieved a duffle bag containing men's clothing and a baggage claim tag in Lauder's name.

The officers searched the backyard and found, buried in the ground, $12,000 in cash and, separately, approximately 745 grams of powder cocaine that was wrapped in two plastic bags. The officers also searched Lauder's person. In Lauder's wallet they found several pieces of paper that contained the initials of numerous people written next to money amounts. According to the testimony of the arresting officer, the papers were consistent with drug ledgers that are typically kept by people involved in drug distribution. Later witnesses, in fact, matched the initials found in Lauder's wallet to known drug dealers.

Following the search, the Task Force contacted the Drug Enforcement Agency and referred the case to the federal government for prosecution. Lauder was transferred to the DEA's custody in Las Cruces, New Mexico, whereupon a DEA agent recorded Lauder's fingerprints using a digital infrared scanner, referred to as the "live-skin method," which, according to testimony given at trial, operates essentially like a copy machine. Lab analysis by the DEA determined that Lauder's digitally-obtained fingerprint matched a latent fingerprint that was found on one of the plastic bags containing cocaine and buried in the backyard.

At trial, the government introduced two cooperating witnesses that testified about Lauder's drug activities. The first, Soleil Sligh, stated Lauder's nickname was "BL" ("Big Little") or "Little Man," and that she began buying crack from him in approximately February 2002. Sligh testified that on separate occasions she purchased a total of approximately 425 grams of crack cocaine and 255 grams of powder cocaine from Lauder, which she in turn resold to drug users. She also helped Lauder sell an additional 255 grams of crack cocaine, and that on another occasion Lauder transported an additional 255 grams of crack cocaine from California to New Mexico. Sligh then testified that on at least one occasion she witnessed Lauder "cook" powder cocaine into crack while he was staying at Kena Wright's house and that many of the initials on the papers found in Lauder's wallet corresponded to known drug dealers in Hobbs. Finally, she stated that the brown sweatshirt found in the bedroom belonged to Lauder and that "he keeps his money in [the sweatshirt] and sometimes his dope." Aple. Supp.App. II, at 213.

The second cooperating witness was Idella Royals, Kena Wright's cousin. Royals testified that "once or twice" she sold crack cocaine she had purchased from Lauder. She also described an incident in which Lauder, after returning to New Mexico from California, walked into the kitchen, pulled up his shirt, and unstrapped a long package that was taped to his waist. Royals testified that the package, which was wrapped in plastic, "appear[ed] to be Coke" and "looked like powder." Id. at 265, 268. Furthermore, although she never witnessed Lauder sell drugs to anybody other than herself and Kena Wright, Royals testified that numerous known drug dealers came to the house to see Lauder, and she suspected they were buying cocaine. And, like Sligh, Royals recognized the brown sweatshirt as belonging to Lauder and referred to him as "BL."

Following Lauder's conviction by a jury, the district court adopted the factual findings in the pre-sentence report. In calculating drug amounts, the PSR added together the illegal drugs found during the search of the house with the additional drugs that the cooperating witnesses had purchased from Lauder. The PSR also noted that the amount of seized cash ($17,630) was consistent with the sale of an additional 176 grams of powder cocaine. The court then applied the Drug Equivalency Tables in U.S.S.G. § 2D1.1, finding that the total amounts of powder cocaine, crack cocaine, and marijuana involved in the conspiracy was the equivalent of 10,346 kilograms of marijuana. This amount resulted in a base offense level of 38 under the sentencing guidelines. No enhancements were added. With a Category I criminal history, the applicable guideline range was 235-293 months. The district court sentenced Lauder to 240 months imprisonment.

II. DISCUSSION

Lauder raises four separate issues on appeal. We first address the issues going to the merits of the conviction, and then turn to Lauder's sentence.

A. Sufficiency of the Evidence

Sufficiency of the evidence to support a jury's verdict is a legal issue we review de novo. United States v. Norman, 388 F.3d 1337, 1340 (10th Cir.2004). We review the evidence in the light most favorable to the government to determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Reece, 86 F.3d 994, 995-96 (10th Cir.1996) (quotation omitted). Furthermore, we do not "question the jury's credibility determinations or its conclusions about the weight of the evidence." United States v. Lazcano-Villalobos, 175 F.3d 838, 843 (10th Cir.1999).

We note initially that although Lauder was convicted on four counts, he only challenges the sufficiency of the evidence tying him to the drugs and his intent to distribute them. He does not challenge the existence of a conspiracy under 21 U.S.C. § 846, the maintenance of a building for the manufacture of crack cocaine under 21 U.S.C. § 856(a), or that drug distribution, if established, occurred within 1,000 feet of a school under 21 U.S.C. § 860(a).1 In reviewing the evidence, therefore, we focus our attention on the sufficiency of the evidence with respect to 21 U.S.C. § 841(a)(1), possession with intent to distribute crack and powder cocaine.

To support a conviction for possession of illegal drugs with intent to distribute under 21 U.S.C. § 841(a)(1), the government is required to prove beyond a reasonable doubt that

(1) the defendant knowingly possessed the illegal drugs, and

(2) the defendant possessed the drugs with the specific intent to distribute them.

Reece, 86 F.3d at 996. Possession may be either actual or constructive. "[C]onstructive possession exists where the defendant has the power to exercise control or dominion over the [contraband]." United States v. Lopez, 372 F.3d 1207, 1212 (10th Cir.2004). Control or dominion over the premises where the contraband is found is a factor, but not a requirement, for finding constructive possession of the contraband itself. Id. at 1213. Where, however, the defendant has exclusive possession of the premises, dominion, ownership, and control are properly inferred. United States v. Mills, 29 F.3d 545, 549 (10th Cir.1994). In joint occupancy cases where possession is not clear, such as where the drugs may be attributed to more than one person, we require some nexus, link, or other connection between the defendant and the contraband. Id.

As noted, the core of Lauder's...

To continue reading

Request your trial
108 cases
  • United States v. Ortiz
    • United States
    • U.S. District Court — District of New Mexico
    • 27 Abril 2020
    ...reliance on judge-found facts to enhance the defendant's sentence mandatorily.’ " 168 F. App'x at 290 (quoting United States v. Lauder, 409 F.3d 1254, 1269 (10th Cir. 2005) ).In United States v. Coleman, the defendant appealed the district court's sentence enhancement for firearms possessio......
  • United States v. Roybal
    • United States
    • U.S. District Court — District of New Mexico
    • 24 Mayo 2016
    ...reliance on judge-found facts to enhance the defendant's sentence mandatorily.' " 168 Fed.Appx. at 290 (quoting United States v. Lauder, 409 F.3d 1254, 1269 (10th Cir.2005) ).In United States v. Coleman, the defendant, Troy Coleman, appealed the district court's enhancement of his sentence ......
  • United States v. Valencia, CR 12-3182 JB
    • United States
    • U.S. District Court — District of New Mexico
    • 31 Diciembre 2015
    ...reliance on judge-found facts to enhance the defendant's sentence mandatorily.'" 168 F. App'x at 290 (quoting United States v. Lauder, 409 F.3d 1254, 1269 (10th Cir. 2005)). In United States v. Coleman, the defendant, Troy Coleman, appealed the district court's enhancement of his sentence f......
  • United States v. Tobanche
    • United States
    • U.S. District Court — District of New Mexico
    • 16 Julio 2015
    ...reliance on judge-found facts to enhance the defendant's sentence mandatorily.’ " 168 Fed.Appx. at 290 (quoting United States v. Lauder, 409 F.3d 1254, 1269 (10th Cir.2005) ).In United States v. Coleman, the defendant, Troy Coleman, appealed the district court's enhancement of his sentence ......
  • Request a trial to view additional results
2 books & journal articles
  • Chapter 4 Daubert Gatekeeper Determinations
    • United States
    • American Bankruptcy Institute Admitting Expert Valuation Evidence Before the U.S. Bankruptcy Courts
    • Invalid date
    ...to exclude/strike expert testimony).[185] Fed. R. Evid. 702, Committee Notes to 2000 Amendments; see also United States v. Lauder, 409 F.3d 1254, 1264 n. 5 (10th Cir. 2005).[186] United States v. Crabbe, 556 F. Supp. 2d 1217, 1223 (D. Colo. 2008).[187] Fed. R. Evid. 702, Committee Notes to ......
  • CHAPTER 6 FINGERPRINT ANALYSIS
    • United States
    • Carolina Academic Press Forensic Evidence in Court: A Case Study Approach (CAP)
    • Invalid date
    ...in a search of a residence and its backyard, where plastic bags containing cocaine were found buried. United States v. Lauder, 409 F.3d 1254 (10th Cir. 2005) ... Fingerprint Evidence Lauder's third argument is that the district court erred in admitting fingerprint evidence tying Lauder to t......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT