U.S. v. Richardson
| Decision Date | 03 July 2008 |
| Docket Number | No. 06-12610.,06-12610. |
| Citation | 532 F.3d 1279 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Darryl RICHARDSON, a.k.a. Picallo, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Stephen Schlessinger, Anne R. Schultz, Asst. U.S. Atty., Lisa A. Hirsch, Miami, FL, for U.S.
Appeal from the United States District Court for the Southern District of Florida.
Before ANDERSON and BARKETT, Circuit Judges, and TRAGER,* District Judge.
Appellant, Darryl Richardson, was convicted of one count of conspiracy to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 846. Richardson appeals his conviction and his sentence on several grounds, all based largely on his contention that his various illegal agreements with several coconspirators constituted not one but multiple conspiracies. Richardson argues that the evidence presented at trial tended to prove the existence of multiple distinct conspiracies, which fatally varied from, and was thus insufficient to support a conviction for, the single overarching conspiracy charged in the indictment. In addition, Richardson argues that the district court committed prejudicial error by not instructing the jury regarding his multiple conspiracies theory and its effect on the relevant statute of limitations. Finally, Richardson appeals his sentence claiming that the district court considered certain of Richardson's illegal acts that would have been time-barred under Richardson's multiple conspiracies theory. For the reasons stated below, Richardson's conviction and sentence are affirmed.
The government charged Richardson with one count of conspiracy to distribute cocaine. The indictment reads in relevant part,
From at least in or around 1990, the exact date being unknown to the Grand Jury, and continuing to in or about 2001, at Miami, Miami-Dade County, in the Southern District of Florida, and elsewhere, the defendant, Darryl Richardson, aka "Picallo," did knowingly and intentionally combine, conspire, confederate and agree with persons known and unknown to the Grand Jury to distribute a controlled substance ... [that] involved five (5) kilograms or more of a mixture and substance containing a detectable amount of cocaine.
Richardson was the only person charged in the indictment. The government tried Richardson three times. The first two trials failed to produce a unanimous jury verdict, but the third yielded a conviction.
Most of the evidence the government presented against Richardson was in the form of witness testimony. The government called several individuals who testified that they trafficked drugs with Richardson. The extent to which this evidence established the single conspiracy charged in the indictment, as the government claims, or multiple distinct conspiracies, as Richardson claims, is the primary issue in this appeal.
The first witness the government called to testify was Gregory Barnes. Barnes testified that he distributed cocaine in Atlanta from 1985 through 1993, when he was indicted on firearm charges for which he served nine years in prison. Barnes began to deal drugs with Richardson in 1989 when Barnes was living in Atlanta and Richardson in Miami. Soon thereafter, Richardson moved into Barnes's Atlanta apartment. Barnes described many ways in which he mentored Richardson, and helped establish him in the Miami-to-Atlanta drug trade. Barnes also referred to Richardson as his "partner." Barnes further testified that he would supply Richardson with cocaine on consignment, also known as "fronting" him the cocaine, which Richardson would sell, after which Richardson would pay Barnes for the drugs. Following Barnes's incarceration in 1993, Barnes and Richardson did not distribute drugs together again. Thus, Richardson's involvement with Barnes spanned only from 1989 to 1993.
Following Barnes's testimony, the government called several individuals who described dealing drugs with Richardson and others between 1992 and 2001, none of whom claimed to have also worked with Barnes. The focus of Richardson's appeal is that his association with Barnes cannot be considered part of the same drug conspiracy or conspiracies that Richardson engaged in from 1992 to 2001 with other individuals.
Even though none of the government's evidence reflects that any of Richardson's coconspirators worked with both Richardson and Barnes between 1989 and 1993, with regard to at least one, Narvis Benton, the evidence does establish a temporal overlap. Benton testified that he started dealing drugs with Richardson in 1992, which was within the period of Barnes and Richardson's collaboration. Benton, however, denied ever working with or knowing of Barnes. Moreover, another witness and fellow conspirator, Derrick Blake, testified that he began to sell cocaine in 1993 or 1994 and began to work with Richardson in around 1994. If Barnes and Blake testified accurately, their stints dealing drugs with Richardson could not have overlapped, but may have been separated by as little as a few months.
In addition to Barnes, Blake, and Benton, the government called a series of witnesses who testified about dealing drugs with Richardson and others between 1994 and 2001. This testimony generally revealed that Derrick Blake, Narvis Benton, Robby Horton, Marvin Griffin, Jesus Wilson, Lamont Harrison, Rocky Marshal, Christopher Mitchell, Derrick Gloster, Jerry Miller, and, not least, Roshawn Davis all conspired with Richardson and others to traffic cocaine between Miami, where cocaine is relatively cheap, and Atlanta, where cocaine is relatively expensive. Many but not all of these individuals testified. Roshawn Davis did not testify, but the evidence reflects that in addition to working closely with Richardson, Davis dealt drugs with Blake, Wilson, Harrison, and Mitchell, all of whom also dealt drugs with Richardson. Moreover, trial testimony revealed that Benton, Horton, Griffin, and Richardson worked together on drug deals; Harrison, Davis, and Richardson worked together on drug deals; Davis, Mitchell, and Richardson worked together on drug deals; and in 1997, after being arrested along with Wilson and Davis, Richardson asked Blake to arrange bail for all three. This evidence establishes that many members of Richardson's network of drug dealers knew and worked with not only Richardson but other members as well.
The defense presented no evidence at trial. Following the government's case, Richardson moved for a judgment of acquittal based on his contention that the government's evidence demonstrated a series of unconnected conspiracies rather than the single conspiracy charged in the indictment, constituting a fatal variance. The district court denied the motion. The district court also declined to give two jury instructions that Richardson had requested, each relating to his multiple conspiracies theory. Richardson appeals from those denials, and also from the district court's reliance for sentencing purposes on what Richardson argues is time-barred evidence.
(1)
Variance
"We will not reverse a conviction because a single conspiracy is charged in the indictment while multiple conspiracies may have been revealed at trial unless the variance is [1] material and [2] substantially prejudiced the defendant." United States v. Edouard, 485 F.3d 1324, 1347 (11th Cir.2007) (internal quotations and citations omitted). Our first step, therefore, is to determine whether there was a material variance, i.e., whether the evidence supports the jury's conclusion that a single conspiracy existed. As this Court has recently noted,
Because the jury determines the question of fact as to whether the evidence establishes a single conspiracy, the arguable existence of multiple conspiracies does not constitute a material variance from the indictment if, viewing the evidence in the light most favorable to the Government, a reasonable trier of fact could have found that a single conspiracy existed beyond a reasonable doubt.
United States v. Moore, 525 F.3d 1033, 1042 (11th Cir.2008). In other words, a jury's conclusion that a single conspiracy existed should not be disturbed as long as it is supported by the evidence. Id. A material variance will only result if there is no evidentiary foundation for the jury's finding of a single conspiracy, and only then will it need to be determined whether the variance requires reversal, i.e., whether it substantially prejudiced Richardson.
To determine whether a jury could reasonably have found that this evidence established a single conspiracy beyond a reasonable doubt, we must consider: "(1) whether a common goal existed; (2) the nature of the underlying scheme; and (3) the overlap of participants." Id. (emphasis in original). It is important to note that Id. "It is irrelevant that particular conspirators may not have known other conspirators or may not have participated in every stage of the conspiracy; all that the government must prove is an agreement or common purpose to violate the law and intentional joining in this goal by coconspirators." Edouard, 485 F.3d at 1347 (internal quotations and citations omitted). Moreover, this Court has held that a jury may find that a single conspiracy existed when "a `key man' directs and coordinates the activities and individual efforts of various combinations of people." Id.
First, the government presented sufficient evidence to support the conclusion that Richardson and his various confederates,...
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