U.S. v. Roberts, s. 92-8065

• Decision Date: 17 December 1993
• Docket Number: 92-8066 and 92-8069,Nos. 92-8065,s. 92-8065
• Citation: 14 F.3d 502
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lee W. ROBERTS, also known as Kurlee Roberts, also known as Dr. Lee; Susan Byers; and Jackie Wood, Defendants-Appellants. Tenth Circuit
• Court: U.S. Court of Appeals — Tenth Circuit

Page 502

14 F.3d 502

UNITED STATES of America, Plaintiff-Appellee, v. Lee W. ROBERTS, also known as Kurlee Roberts, also known as Dr. Lee; Susan Byers; and Jackie Wood Defendants-Appellants.

Nos. 92-8065, 92-8066 and 92-8069.

United States Court of Appeals,Tenth Circuit.

Dec. 17, 1993.

Patrick J. Crank, Asst. U.S. Atty. (Richard A. Stacy, U.S. Atty., and David A. Kubichek, Asst. U.S. Atty., Cheyenne, WY, with him on the briefs), Casper, WY, for plaintiff-appellee.

Daniel G. Blythe, Rogers, Blythe & Lewis, Cheyenne, WY, for defendant-appellant Lee W. Roberts.

Corinne A. Miller, Casper, WY, for defendant-appellant Susan Byers.

Ronald G. Pretty, Cheyenne, WY, for defendant-appellant Jackie Wood.

Before MOORE, BARRETT, and GOODWIN, ¹ Circuit Judges.

JOHN P. MOORE, Circuit Judge.

This consolidated appeal arises from a multi-state investigation into the illegal distribution of methamphetamine in the Casper, Wyoming area. Of the nine defendants named in a multi-count indictment, three, Lee W. Roberts, Jackie Wood, and Susan Byers, were tried by a jury, convicted, and sentenced to substantial terms of imprisonment. Review of the numerous issues presented requires ferreting out sufficient evidence establishing individual guilt but fails to confirm the many contentions of error defendants have raised. Nevertheless, finding error in the determinations of Mr. Roberts', Ms. Wood's, and Ms. Byers' sentences, we vacate and remand for resentencing consistent with our later discussion.

I. Background

On March 7, 1990, Karen Flint, a patrolwoman with the Casper Police Department, was dispatched to investigate a report of an armed robbery. Arriving at 1010 West 20th Street, Officer Flint met Lee Roberts ² and Jackie Wood, who described how someone purporting to have car trouble entered the house asking to use the phone, when a second man armed with a gun burst in. Roberts stated the intruders stole his overnight bag, which contained $12,000 in cash, and later, Ms. Wood reported a .380 caliber handgun registered to her was also taken. Thus alerted, ³ the following month, Natrona County Deputy Sheriff, Lynette Cohee, working undercover, arranged to buy two eight-balls ⁴ of methamphetamine from Billy Joe Wood, a friend of Lee Roberts. Officer Cohee paid Billy Joe Wood $580 in pre-reported state buy funds.

A month later, a $100 bill recorded in that buy surfaced in Mesquite, Nevada, after Lee Roberts, riding his motorcycle, was stopped for violating the state helmet law. Impounding the motorcycle because Roberts could not produce proper registration, Nevada patrolmen discovered $23,800 in cash, including the marked $100 bill, in ziplock bags stowed in the saddlebags.

In July 1990, Robert Tanner, a police officer in North Las Vegas, Nevada, working with a confidential informant, met Jackie Wood and Lee Roberts at a North Las Vegas sports bar and purchased 2 ounces of methamphetamine. As the money and drugs were exchanged, Tanner signalled, and police arrested Roberts and Wood.

Finally, on August 18, 1990, Jackie Wood and Lee Roberts were involved in an auto accident in Arizona. Although Roberts off-loaded his motorcycle and drove away with Wood, he first discarded a black shaving kit in the desert brush. Retrieved, the bag contained a small pipe and baggies of powdery substance later tested to be methamphetamine.

Subsequent surveillance and authorizations for a pen register and wiretap on Roberts' Casper telephone wove the intricate web connecting these four events to other players and their roles in what emerged as Lee Roberts' extensive business procuring and distributing methamphetamine in the Casper area. Routinely, for example, it appeared Roberts obtained methamphetamine in Las Vegas, where he owned a trailer home. He then ordered Jackie Wood, who often stayed there, to mail packaged quantities of the drugs to his ex-wife, Carolynn Roberts, in baggies designated for particular sellers, his "customers," in and around Casper. Carolynn Roberts then called Lee's salespeople to pick up their "product." Alternatively, Lee Roberts would drive to Casper and distribute the drugs himself. Most transactions involved eight-ball quantities which were "fronted," that is, sellers received the drugs in advance of payment. Sellers who promptly and regularly paid their bills often received larger, 1 to 2 ounce packages.

In fact, Roberts' Casper employees were like an extended family. Billy Joe Wood, who was involved in the initial Casper buy, is Carolynn Roberts' brother, Lee Roberts' nephew, and Jackie Wood's ex-husband. Jackie Wood and Lee Roberts were lovers. Most sellers were users, and most users strained Roberts' business when they were unable to promptly satisfy their "fronts." ⁵

On February 6, 1991, ⁶ police executed a search warrant on Roberts' Las Vegas trailer, and Kevin Hughes, an agent with the Wyoming Division of Criminal Investigation (DCI) interviewed Roberts, who was then incarcerated in Nevada. At the same time, Jackie Wood, also serving a Nevada sentence for her prior conviction, gave a statement to Wyoming DCI investigator Tony Young. Simultaneously in Casper, police executed search warrants on Lee Roberts' 1010 West 20th Street residence and Susan Byers' home.

A subsequent multi-count indictment charged Lee Roberts, Jackie Wood, Billy Joe Wood, Susan Byers, and Carolynn Roberts ⁷ with conspiracy to possess with intent to distribute methamphetamine in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(A). Count I catalogued 51 overt acts to achieve the conspiratorial objective. Count II charged Lee Roberts with possession of the handgun stolen in the March 7, 1990 robbery in violation of 18 U.S.C. Sec. 924(c)(1). Count III charged Lee Roberts with possession of two weapons seized in the search of his Nevada trailer in violation of 18 U.S.C. Sec. 924(c)(1). Lee Roberts and Jackie Wood were named in Count IV, aiding and abetting the possession of methamphetamine. In Count V, Susan Byers was charged with using a telephone to facilitate the conspiracy in violation of 21 U.S.C. Sec. 843(b).

Defendants ⁸ filed numerous pretrial motions of which the Roberts' and Wood's motions to suppress confessions still figure in this appeal as well as their individual motions for a James hearing and to suppress wiretaps. The district court denied the various motions to suppress and requested the government submit a written proffer addressing defendants' James concerns so that it could evaluate the government's proof of the conspiracy and the nature of the statements prior to trial. Just before the government's opening statement, the district court ruled the prosecution had satisfied the requirements of the James hearing by this proffer and found "by a preponderance that the government has evidence, that [ ] establishes the existence of a conspiracy, membership of each of these defendants in that conspiracy and that certain statements have been made in furtherance of it." The court triaged the prospective coconspirator statements: confessions could not be admitted against codefendants; ⁹ statements found to be made in furtherance could be admitted against codefendants; and statements in casual conversations could be considered as admissions against interest of the speaker. Given the magnitude of the wiretap--971 calls were intercepted--the court expressed its concern about all of the prospective statements the government might still offer "because the selection process is still going forward," but believed the remedy in each instance would be found in contemporaneous proffers and cautionary instructions.

During trial, the government provided transcripts of and played approximately 27 recorded conversations of varying duration. ¹⁰ Interwoven in the daily banter were code words and cues about which government witnesses testified, explaining how the codes translated into deliveries, payments, or visits. DCI agents and Arizona and Nevada investigators involved in the Casper activities and Arizona and Nevada events testified about their particular investigations; codefendants who entered pleas, including Carolynn Roberts and Billy Joe Wood, testified about their involvement and drug use; and other government witnesses who had purchased methamphetamine from Roberts' sellers described the sales and their addictions. The jury found Lee Roberts guilty of conspiracy, aiding and abetting the possession of methamphetamine, and a single Sec. 924(c) violation based on the weapons found in the search of his Nevada trailer. The jury acquitted Roberts of the Sec. 924(c) violation related to the weapon stolen in the March 7, 1990 robbery. Jackie Wood was found guilty of conspiracy and aiding and abetting the possession of methamphetamine. The jury found Susan Byers guilty of conspiracy and using a telephone to facilitate the conspiracy.

After a hearing on his objections to the recommendations in the presentence report (PSR), the district court imposed sentence on Lee Roberts: 330 months' incarceration on Counts I and IV, and 60 months to run consecutively on the Count III Sec. 924(c) violation, to be followed by 10 years of supervised release. ¹¹ Despite her counsel's vigorous objections, the court imposed a 360-month sentence on Jackie Wood on her conspiracy conviction, Count IV aiding and abetting to run concurrently, to be followed by a 5-year term of supervised release. After a hearing on her objections, Susan Byers was sentenced to 121 months' imprisonment, Counts I and V to run concurrently, followed by 5 years of supervised release.

Against this background, defendants raise numerous issues challenging their convictions and sentences. We address defendants' shared arguments at the outset and their individual issues in turn.

II. Sufficiency of the Evidence of a Single Conspiracy

Although the government may have shown defendants were involved in activities in Wyoming, Nevada, Arizona, or California, defendants Roberts and Wood...