United States v. Cushing

• Citation: 10 F.4th 1055
• Decision Date: 24 August 2021
• Docket Number: No. 19-7052, No. 19-7054,19-7052
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Carl Alvin CUSHING, Defendant - Appellant. United States of America, Plaintiff - Appellee, v. Kris Lee Hall, Defendant - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

10 F.4th 1055

UNITED STATES of America, Plaintiff - Appellee,

v.Carl Alvin CUSHING, Defendant - Appellant.

United States of America, Plaintiff - Appellee,

v.Kris Lee Hall, Defendant - Appellant.

No. 19-7052

No. 19-7054

United States Court of Appeals, Tenth Circuit.

FILED August 24, 2021

William D. Lunn, William D. Lunn Attorney at Law, Tulsa, Oklahoma, for Appellant Cushing.

Andrea D. Miller (Robert Lee Wyatt IV, Wyatt Law Office, with her on the briefs), Oklahoma City, Oklahoma, for Appellant Hall.

Linda A. Epperley, Assistant United States Attorney (Brian J. Kuester, United States Attorney, and Robert A. Wallace, Assistant United States Attorney, with her on the brief), Office of the United States Attorney, Muskogee, Oklahoma, for Appellee.

Before TYMKOVICH, Chief Judge, BALDOCK and BACHARACH, Circuit Judges.

TYMKOVICH, Chief Judge.

Carl Cushing and Kris Hall were convicted by a jury of a drug conspiracy to distribute large quantities of methamphetamine. On appeal, Cushing and Hall raise a number of challenges to their convictions. As we explain in detail below, none of these claims has merit. We hold that, among other things, the evidence was sufficient to convict both Cushing and Hall of the drug conspiracy, the district court did not err in admitting res gestae evidence to provide the jury appropriate context to the crime, and the expert testimony presented at trial was properly admitted.

Exercising jurisdiction under 28 U.S.C. § 1291, we accordingly affirm.

I. Background

This case centers around a methamphetamine distribution operation in Oklahoma. In 2007, Waylon Williams started transporting and selling marijuana in quantities of about 100 pounds every couple of weeks. When Williams fell into debt with his supplier around 2013, he began dealing methamphetamine, starting at a pound for $15,000 every few weeks. Several years into his operation, Williams was receiving "upwards of five to ten pounds of methamphetamine at one time." Hall, R., Vol. 2 at 480.¹ Initially, he obtained the methamphetamine from a source in Oklahoma City and sold it near his home in the Stilwell, Oklahoma, area.

When Williams began selling methamphetamine, he started by selling to "people [who] were involved with meth or did meth," which were "mostly ... a lot of [Williams's] friends." Hall, R., Vol. 4 at 639. These friends included Kris Hall and co-conspirator J.C., both who had been school friends of Williams. Williams also gave methamphetamine away to others and hosted parties—where guests would use methamphetamine—in his barn at his rural residence. Williams began selling to J.C. in 2014 and to Hall in 2015. Williams had not previously used methamphetamine with Carl Cushing, but he nevertheless began selling to Cushing in 2014. Within about a year, Cushing became Williams's second-largest customer. Williams often "fronted" methamphetamine to Cushing and collected money later. Hall, R., Vol. 4 at 661. By late 2017, Williams was sourcing his methamphetamine from J.C.

But by then, Williams's activities had already attracted the attention of the Oklahoma Bureau of Narcotics and Dangerous Drugs (OBN). In 2017, the Drug Enforcement Administration (DEA) contacted Agent John Morrison of the OBN about a wiretap investigation the DEA was performing on Williams's Oklahoma City source. From this, the DEA was able to obtain Williams's phone number and communicate it to Agent Morrison. Around the same time, a search warrant had been served at Williams's residence by the Adair County Sheriff's Office, which in turn informed Agent Morrison of the search. Agent Morrison made the link between the phone number provided by the DEA wiretap investigation and Williams's residence through surveillance.

Agent Morrison successfully requested a pen register for Williams's cell phone number, which kept track of the numbers with which Williams was in contact and the duration of the calls. From this pen register data, Agent Morrison was ultimately able to identify numbers belonging to Cushing and Hall. Agent Morrison also obtained a warrant to install a GPS tracker on Williams's vehicle. Based on these investigative techniques, Agent Morrison received authorization in November 2017 for a wiretap on Williams's cell phone of all incoming and outgoing communications.

The wiretap yielded information about the numbers who contacted Williams and whom Williams contacted. The recorded calls and text messages—along with additional information from a jailhouse interview of another customer of Williams, M.W.—also provided information about particular patterns of Williams's drug dealing. For example, Williams's failure to respond to a text message often indicated to the customer to proceed to his house for a deal anyway. He also told his customers to not talk on the phone about drugs and to use vague terminology when talking about drugs. Based on the numbers who contacted Williams frequently, Agent Morrison obtained search warrants to wiretap the phone numbers of several others, including Cushing, Hall, J.C., and B.S.—all of whom would be among those ultimately charged in the superseding indictment. In early 2018, the investigation became more "aggressive" as the drug task force increasingly stopped vehicles leaving Williams's property. Hall, R., Vol. 2 at 419. Some of these stops helped identity the users of the cell phone numbers on the wiretaps, such as Hall.

On January 29, 2018, Agent Morrison and other officers carried out a search warrant on Williams's property. Williams was tipped off by someone who had seen the police gathering nearby before entering his property, and he called his girlfriend—and co-conspirator—C.B. to tell her to destroy something in his workshop. Williams went into a wooded area when the police arrived but soon emerged onto a county road and turned himself in. The officers arrested Williams. Williams immediately began to cooperate with the officials, providing information about his methamphetamine business.

Six weeks later, a search warrant was executed at Cushing's residence. Officers found methamphetamine residue and security cameras but little else. Cushing was not present, though his girlfriend was. Around the same time, officers searched Hall's house and found scales, marijuana paraphernalia, two stolen firearms, sandwich baggies, and security cameras. They did not find methamphetamine.

In March 2018, a grand jury handed down a superseding indictment for conspiracy to "knowingly and intentionally distribute and possess with the intent to distribute" more than 500 grams of methamphetamine. The indictment named twelve individuals, including Williams, Cushing, Hall, and B.S. Hall was arrested at his residence on March 22, 2018. But on that same day, officers found that Cushing had fled from his home. From an interview with Cushing's girlfriend, who was at Cushing's residence when the search warrant was served, officers discovered that Cushing was hiding at a cabin in Proctor, Oklahoma. On April 25, 2018, officers arrived at the cabin to execute an arrest warrant and found Cushing. The officers saw methamphetamine in plain view on the kitchen table, and when they searched the house pursuant to a search warrant, they also found a canister in the bathroom with 18.68 grams of methamphetamine inside. Cushing was arrested. In response to the charge in the indictment, Williams and eight others entered plea deals. Cushing, Hall, and B.S. proceeded together to trial.

At trial, the jury heard testimony from Agent Morrison as well as Williams, and both of their testimonies were integral to the government's case. During the testimony of both Agent Morrison and Williams, the government introduced calls and texts exchanged with the defendants that had been intercepted by the wiretap. Relevant to this appeal, the jury heard from other individuals who knew Williams, Cushing, Hall, or B.S., many of whom testified to Cushing and Hall's use of drugs and whether they provided them to others in furtherance of the conspiracy. The jury also heard testimony from DEA Agent Brian Epps, a law enforcement officer with professional experience in methamphetamine distribution and conspiracy enforcement. Agent Epps testified as an expert on methamphetamine distribution slang, culture, and methods.

At the end of trial, the jury found B.S. not guilty but Cushing and Hall guilty. Cushing and Hall each appealed, and we consolidate their appeals here.

II. Analysis

On direct appeal, Cushing and Hall raise many of the same challenges to their trial. They contend that (1) the evidence presented by the government was insufficient to sustain the conspiracy convictions because it failed to prove interdependence as well as the existence of a single conspiracy; (2) a variance between the indictment and the trial evidence resulted in prejudice; (3) the district court erred in admitting evidence of other acts under Federal Rule of Evidence 404(b) ; (4) the district court erred in permitting a law enforcement officer to testify as an expert on drug conspiracy matters; and (5) cumulative error warrants reversal.

Hall additionally argues that the district court erred in denying a requested jury instruction for multiple conspiracies. Cushing also contends the district court plainly erred in not declaring a mistrial sua sponte after an ambiguous statement during Williams's testimony about someone going to prison purportedly pointed to Cushing.

We first address sufficiency of the evidence, variance, and the jury instruction claims. We then address the admission of the evidence of other acts under Federal Rule of Evidence 404. Then, we discuss the improper expert testimony claim, followed by the witness-comment argument. Finally, we address the cumulative error claim.

A. Sufficiency of the Evidence for Conspiracy Convictions

1. Standard of Review

We "review the sufficiency of the evidence to support a conviction ... de novo." United States v. Wyatt , 964 F.3d 947, 952 (10th Cir. 2020) (quoting United States v....