U.S. v. Slater

• Decision Date: 04 August 1992
• Docket Number: 91-3294,Nos. 91-3276,s. 91-3276
• Citation: 971 F.2d 626
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Herman B. SLATER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Harold L. PORTER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 626

971 F.2d 626

UNITED STATES of America, Plaintiff-Appellee, v. Herman B. SLATER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Harold L. PORTER, Defendant-Appellant.

Nos. 91-3276, 91-3294.

United States Court of Appeals, Tenth Circuit.

Aug. 4, 1992.

Leon J. Patton, Asst. U.S. Atty. (Lee Thompson, U.S. Atty., with him on the briefs), Kansas City, Kan., for plaintiff-appellee.

Keith C. Sevedge (Carl E. Cornwell with him on the brief), Kansas City, Kan., for defendant-appellant Herman B. Slater.

David J. Phillips, Asst. Federal Public Defender (Charles D. Anderson, Federal Public Defender, with him on the brief), Kansas City, Kan., for defendant-appellant Harold L. Porter.

Before MOORE, ENGEL, ^* and KELLY, Circuit Judges.

PER CURIAM.

Herman B. Slater and Harold L. Porter appeal from convictions of conspiracy to possess and possession with intent to distribute approximately 223.3 grams of crack cocaine within 1,000 feet of a public elementary school. The district court imposed respective sentences of imprisonment of 235 and 168 months followed by periods of supervised release. In these related appeals, Mr. Slater and Mr. Porter raise numerous issues challenging their convictions and sentences. We affirm the convictions and Mr. Slater's sentence, however, we remand Mr. Porter's case for resentencing.

I. Background

On May 8, 1990, Randall Listrom, a Topeka police detective, arrested Anthony Young for possession of one-quarter gram of cocaine. Faced with sentencing under the Kansas Habitual Criminals Act, Young agreed to assist the Drug Enforcement Administration and the Topeka Police Department in their investigation of Topeka area drug distribution in exchange for a favorable sentence. Accordingly, Young identified defendants as persons who supplied him with drugs and described to the agents how a typical transaction with them would occur.

He stated he would call Mr. Porter, whom he knew only as "Harold," and Harold would connect him with Mr. Slater, whom he knew as "Bryant." Mr. Young would then arrange to obtain a quantity of drugs directly from Bryant at a location specified by Bryant.

Two days later, at the direction of DEA agents, Mr. Young telephoned Mr. Porter asking to buy eight ounces of cocaine. They arranged to meet on May 11 at a Kansas City convenience store. That call and two others were recorded.

Under a plan to create a "buy bust," ¹ Special Agent Audis Wells, working undercover, would accompany Mr. Young to meet Mr. Porter. Agent Wells would carry $9,600 in cash to help him simulate his intent to purchase. When it was certain Mr. Slater had the cocaine, surveillance DEA agents would move in and effect arrests of the suspects. (R. IV, 20). The arrests would be timed so that a completed distribution did not occur.

As planned, Agent Wells and Mr. Young drove to the specified location and spotted a car, driven by Mr. Porter, which pulled out in front of their car and led them to a nearby parking lot. Mr. Porter then parked his vehicle and got into Mr. Young's. In the car, Agent Wells handed Mr. Porter the $9,600 which Mr. Porter counted and returned. They then drove to another location where they waited until Mr. Porter made a phone call.

Mr. Porter thereafter directed that they drive to a restaurant parking lot. When they arrived, Mr. Porter showed them to a spot near a white Nissan which was parked within 1,000 feet of Coronado Middle School. Mr. Porter agreed to walk over to the Nissan and confirm his source had the cocaine. Mr. Young, too, got out and upon seeing Mr. Porter nod, gave a prearranged signal. Immediately, DEA surveillance officers wearing DEA raid jackets and with weapons drawn fanned out, one group surrounding the white Nissan, the other ordering Mr. Young and Mr. Porter to the ground where they were handcuffed and arrested.

Contrary to the plan, however, the white Nissan sped off, jumping a curb, and leading pursuing officers on a high-speed chase which ended only after officers shot out two of the vehicle's tires. His escape thus thwarted, Mr. Slater was pulled forcibly from the car and arrested.

Upon a search of Mr. Slater's car, officers found $2,400 in cash, a semiautomatic pistol, and a cellular phone. Later, officers found a paging device and paper sack containing approximately 223 grams of crack cocaine which had been seen thrown from the white Nissan during the chase. Afterward, at police headquarters, Mr. Slater told DEA agents the recovered cocaine was part of a kilogram he had picked up in Houston. He also described himself as the "brains" of the operation.

In June 1990, a two count indictment was returned charging defendants with possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and further charging Mr. Slater with assault on a DEA agent in violation of 18 U.S.C. § 111. The assault charge arose from events which occurred while Mr. Slater sped from the restaurant parking lot in an attempt to avoid arrest.

In the trial of that indictment, a jury acquitted Mr. Slater of the assault charge but was unable to reach a verdict on the remaining count. The court therefore declared a mistrial on that charge, and the government filed the present superseding indictment under which defendants were tried and found guilty.

In contrast to the first superseding indictment, the second charged defendants in Count I with violation of 21 U.S.C. § 846, conspiring to possess with intent to distribute crack cocaine. The indictment alleged the conspiracy was evidenced by: (1) the May 10, 1990 telephone conversations; (2) the various arrangements Mr. Porter and Mr. Young made to sell the cocaine base; (3) the meeting with Mr. Young, the undercover agent, and Mr. Porter; (4) Mr. Porter's examining the cash for the purchase; (5) Mr. Porter's directing the agent to the particular parking lot; and (6) Mr. Slater's possession of 223.3 grams of crack "with the intent to deliver it in exchange for the $9,600.00 which Special Agent Wells possessed." Count II charged the defendants with knowingly and intentionally possessing with intent to distribute approximately 223.3 grams of crack cocaine within 1,000 feet of a public elementary school, in violation of 21 U.S.C. § 841(a), 21 U.S.C. § 845(a), and 18 U.S.C. § 2.

The indictment specifically alleged the conspiracy to possess with intent to distribute crack cocaine took place "on or about May 11, 1990," the date of the "buy bust." In the testimony offered at trial, the government established the confidential informant, Mr. Young, called Mr. Porter on May 10 and 11 to arrange to buy eight ounces of crack, and, through Mr. Porter's connection to Mr. Slater, to ultimately purchase the drugs from Mr. Slater. The government also established that Mr. Porter had earlier traveled with Mr. Slater to Houston to secure cocaine. Both defendants maintain that this evidence is legally insufficient to convict under either count as charged.

II. Conspiracy Convictions

A conspiracy conviction requires the government to prove " ' that two or more persons agreed to violate the law, that the defendant knew at least the essential objectives of the conspiracy, ... that the defendant knowingly and voluntarily became a part of it,' and that the alleged coconspirators were interdependent." United States v. Evans, 970 F.2d 663, 668 (10th Cir.1992) (quoting United States v. Fox, 902 F.2d 1508, 1514 (10th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 199, 112 L.Ed.2d 161 (1990)). See also United States v. Esparsen, 930 F.2d 1461, 1471 (10th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 882, 116 L.Ed.2d 786 (1992). A defendant's participation in a conspiracy is proven by evidence tending to show that the defendant shared a common purpose or design with his alleged coconspirators. Fox, 902 F.2d at 1514. The conduct of the alleged coconspirators, including the defendant, may be diverse and far-ranging, but it must be interdependent in some way. United States v. Daily, 921 F.2d 994, 1007 (10th Cir.1990), cert. denied, --- U.S. ----, 112 S.Ct. 405, 116 L.Ed.2d 354 (1991). Thus, if the activities of a defendant charged with conspiracy facilitated the endeavors of other alleged coconspirators or facilitated the venture as a whole, there is evidence of interdependence. Id. A defendant's connection to a conspiracy may be slight, but that slight connection must be proven with evidence to establish knowing participation beyond a reasonable doubt. See Direct Sales v. United States, 319 U.S. 703, 711, 63 S.Ct. 1265, 1269, 87 L.Ed. 1674 (1943); United States v. Savaiano, 843 F.2d 1280, 1294 (10th Cir.1988). Casual transactions with persons involved in a conspiracy are insufficient to establish that critical connection--one who merely purchases drugs or property for personal use from a member of a conspiracy "does not thereby become a member of the conspiracy." United States v. Fox, 902 F.2d 1508, 1514 (10th Cir.1990). "Those having no knowledge of the conspiracy are not conspirators...." United States v. Falcone, 311 U.S. 205, 210, 61 S.Ct. 204, 207, 85 L.Ed. 128 (1940). Nor does one become a member of a conspiracy merely by associating with conspirators known to be involved in crime. See id. at 210, 61 S.Ct. at 206 (casual unexplained meetings with conspirators insufficient to establish knowledge); Fox, 902 F.2d at 1514. We are mindful to guard against the mass application of guilt when conspiracy charges are involved because guilt is always dependent on personal and individual conduct, not on mere association or unknowing involvement. See Kotteakos v. United States, 328 U.S. 750, 773, 66 S.Ct. 1239, 1252, 90 L.Ed. 1557 (1946); United States v. Espinosa, 771 F.2d 1382, 1392 (10th Cir.), cert. denied, 474 U.S. 1023, 106 S.Ct. 579, 88 L.Ed.2d 561 (1985).

We review the evidence in the light most favorable to the government to determine whether any rational trier of fact could find...