U.S. v. Lokey, 90-8245

• Decision Date: 10 October 1991
• Docket Number: No. 90-8245,90-8245
• Citation: 945 F.2d 825
• Parties: 34 Fed. R. Evid. Serv. 363 UNITED STATES of America, Plaintiff-Appellee, v. Charles Eldon LOKEY, Michael Stutevoss, Christopher Anthony Davis, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 825

945 F.2d 825

34 Fed. R. Evid. Serv. 363

UNITED STATES of America, Plaintiff-Appellee, v. Charles Eldon LOKEY, Michael Stutevoss, Christopher Anthony Davis, Defendants-Appellants.

No. 90-8245.

United States Court of Appeals Fifth Circuit.

Oct. 10, 1991.

Rehearing and Rehearing En Banc

Denied Nov. 14, 1991.

Dick DeGuerin, Houston, Tex., for Lokey.

James H. Feldman, Jr., Peter Goldberger, Philadelphia, Pa., for Stutevoss.

George Scharmen, San Antonio, Tex., for Davis.

Michael F. Tubach, Dept. of Justice, Washington, D.C., LeRoy Morgan Jahn, Asst. U.S. Atty., San Antonio, Tex., for U.S.

Appeal from the United States District Court for the Western District of Texas.

Before REYNALDO G. GARZA, WIENER and BARKSDALE, Circuit Judges.

BARKSDALE, Circuit Judge:

Charles Eldon Lokey, Michael Stutevoss, and Christopher Anthony Davis were convicted of conspiracy to distribute a controlled substance and possession of a controlled substance with intent to distribute. The numerous issues raised on appeal turn, for the most part, on whether a single conspiracy was proved. Lokey and Stutevoss also challenge their sentences. We AFFIRM.

I.

In 1988, federal and state agents identified a network of wholesale marijuana dealers centered around Richard Coulter in Austin, Texas. Coulter and approximately thirty others connected with the operation, including appellants, were arrested in May 1989. Coulter, who pleaded guilty, was the main government witness at the trial of Lokey, Stutevoss, and Davis.

Coulter first met Lokey in 1979, when Coulter sold him ten pounds of hashish through an intermediary. Coulter and Lokey established a business relationship which enabled them to "advance" each other marijuana. Through this practice, marijuana would be provided at no cost, with the seller being paid when the buyer found another buyer. For each of these transactions, Lokey or Coulter would earn a commission for each pound of marijuana he successfully brokered. This relationship continued until Lokey moved to Garland, Texas, in 1985 to open a business. Even while Lokey was involved in his new business, he maintained his contacts with Coulter. For example, Coulter testified that Lokey called and offered to sell him a rather large load of Mexican marijuana during this period.

In February 1987, Shawn Siegel, another Austin marijuana dealer with whom Coulter had dealt, was arrested for possession of marijuana. Siegel agreed to sell his marijuana distribution network to Coulter. He gave his list of sources and customers to Coulter in exchange for 50 percent of the profits on every deal Coulter made with Siegel's connections for one year. Appellant Stutevoss and Robert Erkkila were two of Siegel's customers who began dealing with Coulter under this agreement.

Pursuant to this arrangement, in March 1987, Siegel introduced Coulter to Robert Erkkila, of Nashville, Tennessee. Erkkila, who also testified at trial, agreed to deal with Coulter instead of Siegel and became Coulter's regular customer. Erkkila bought approximately 60 pounds of marijuana from Coulter in a transaction in September 1987, over 90 pounds that October, and 40 pounds that December.

In December 1987, Erkkila was arrested when he attempted to ship 67 pounds of marijuana he had purchased from Coulter. While Erkkila was on bail, he decided to hire Christopher Davis, his largest customer to drive to Austin to pick up the loads of marijuana from Coulter. Erkkila and Coulter would work out the details, such as price and quantity, in a coded telephone call, then Erkkila would give Davis the money in a suitcase, Davis would provide the transportation for a $500 fee, Erkkila would pay Davis' expenses, and Davis would bring the marijuana back to Nashville. Erkkila sent Davis to Austin a couple of times a month between April and October in 1988. Erkkila estimated that Davis transported a total of approximately 300 pounds of marijuana for him. Although Erkkila fired Davis in November 1988 for being undependable, Davis was rehired in February 1989; and he continued to transport drugs for Erkkila until they were both arrested in May 1989.

As noted, Stutevoss was another of Siegel's customers who agreed to switch to Coulter as the source for his marijuana when Siegel was arrested in February 1987. Stutevoss arranged the terms of each deal in a coded telephone call with Coulter. He would usually go to Coulter's house late at night and buy five to six pounds of marijuana. Coulter estimated that as a result of the arrangement with Siegel, he sold a total of 150 to 180 pounds of marijuana to Stutevoss between February 1987 and May 1989. Additionally, Stutevoss bought three to four pounds of "Mexican Sativa" marijuana from Coulter in December 1988 and 20 pounds of "lime green" marijuana in February 1989. On the other hand, Coulter bought small amounts of "extraordinary grade" marijuana from Stutevoss.

In March 1988, Charles Lokey sold his business in Garland and moved back to Austin and in with Coulter. Coulter testified that between March and November in 1988, Lokey helped him sell approximately 160 pounds of marijuana. While Lokey was staying with Coulter, he helped him sell two substantial loads. Lokey sold, and received commission for, 65 pounds of a 105-pound load (Stutevoss bought 12 pounds of this load from Coulter); and Lokey helped Coulter sell 56 pounds of a 60-pound load of "Mexican-Afghani" marijuana, keeping the other four pounds as a commission on the sale.

In August 1988, Coulter purchased 150 pounds of "black bags" marijuana and sold 100 pounds of it to another marijuana dealer. Davis purchased 16 pounds of this marijuana for Erkkila, and Lokey sold 20 pounds to his customers. In November 1988, Coulter sold 12 to 14 pounds of marijuana to Lokey's customers; Lokey received a commission on this sale. After Lokey moved into his own apartment in December 1988, he continued to sell marijuana for Coulter.

In late March, 1989, pursuant to court authorization, the government installed electronic surveillance devices in Coulter's house and garage, and on his telephone. (Numerous tapes of these intercepted communications were played for the jury.) In early May, 1989, the government closed down the investigation, arrested Coulter, and seized marijuana and ledgers from his home. As noted, approximately thirty individuals were arrested, including Lokey, Stutevoss, and Davis.

Lokey, Stutevoss, and Davis were indicted, along with eight others, on two counts: conspiracy to distribute a controlled substance, in violation of 21 U.S.C. §§ 846 and 841(a)(1) (count 1); and possession of a controlled substance with intent to distribute, in violation of § 841(a)(1) (count 2). Among others, and as noted, Coulter and Erkkila testified at trial, as did Jeff Mihalik, who also purchased marijuana from Coulter and Lokey. Lokey testified; Stutevoss and Davis did not. They were found guilty by a jury. Lokey was sentenced to 78 months imprisonment on the first count and 60 months on the second, to run concurrently, five years supervised release on each count, to run concurrently, a fine of $7,500, and a special assessment of $100. Stutevoss was sentenced to 63 months imprisonment on the first count and 60 on the second, to run concurrently, five years supervised release on each count, to run concurrently, a fine of $5,000, and a special assessment of $100. And Davis was sentenced to 84 months on the first count and 60 months on the second, to run concurrently five years supervised release on each count, to run concurrently, a fine of $20,000, and a special assessment of $100.

II.

There is no dispute that the appellants were involved with sizeable amounts of marijuana. Instead, they raise other issues concerning conspiracy and possession with intent to distribute. They contend that (1) the district court improperly admitted evidence that the conspiracy began before February 1987; (2) the prosecutor's reference during closing argument to Coulter's notes was improper; and (3) the jury was not properly instructed on appellants' theory of the case. In addition, Lokey and Stutevoss contend that (1) there was insufficient evidence that they were members of the conspiracy or that they even committed the substantive offense (possession with intent to distribute); and (2) they were "minor participants" in the conspiracy, and should have received a downward adjustment at sentencing. Finally, Lokey contends that, in determining his sentence, the district court improperly considered marijuana he possessed outside the time period listed in the indictment.

A.

Appellants contend that the district court erred in admitting evidence of events which occurred before the time frame stated in the indictment. Lokey and Stutevoss maintain that this constituted a constructive amendment of the indictment and that there was a material variance between the proof and the indictment; all three assert that it was improper under Fed.Rule Evid. 404(b).

The first count of the indictment stated in part:

That beginning on or about February, 1987, and continuing until on or about May 3, 1989, ... Defendants ... and other persons ... unlawfully, willfully, and knowingly did combine, conspire, confederate and agree together and with each other to distribute more than 100 kilograms of marihuana....

The second count stated in part:

That from on or about February, 1987, until on or about May 3, 1989, ... Defendants ... did unlawfully, knowingly, and intentionally possess with intent to distribute more than 100 kilograms of marihuana....

1.

"A conspiracy is an agreement between two or more people to commit a crime." United States v. Manotas-Mejia, 824 F.2d 360, 364 (5th Cir.), cert. denied, 484 U.S. 957, 108 S.Ct. 354, 98 L.Ed.2d 379 (1987). A conspiracy conviction must be upheld if any rational jury could find beyond a reasonable doubt that " 'a conspiracy existed, that each co-defendant knew of the conspiracy, and...