United States v. Dahda, 15-3236

• Citation: 853 F.3d 1101
• Decision Date: 04 April 2017
• Docket Number: No. 15-3236,15-3236
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Los Rovell DAHDA, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

853 F.3d 1101

UNITED STATES of America, Plaintiff–Appellee,
v.
Los Rovell DAHDA, Defendant–Appellant.

No. 15-3236

United States Court of Appeals, Tenth Circuit.

FILED April 4, 2017

Rick E. Bailey, Conlee, Schmidt & Emerson, L.L.P., Wichita, Kansas, for Defendant–Appellant.

Carrie N. Capwell, Assistant United States Attorney (Thomas E. Beall, Acting United States Attorney, with her on the briefs), Office of the United States Attorney, Kansas City, Kansas, for Plaintiff–Appellee.

Before LUCERO and BACHARACH, Circuit Judges.^*

BACHARACH, Circuit Judge.

Mr. Los Dahda was convicted of crimes growing out of an alleged marijuana distribution network centered in Kansas. The convictions resulted in a sentence of imprisonment and a fine of $16,985,250. On appeal, Los¹ presents six challenges to the convictions and sentence:

1. The evidence was insufficient to prove the conspiracy charged in count one.

2. An unconstitutional variance existed between (a) the single, large conspiracy charged in count one and (b) the trial evidence, which showed numerous smaller conspiracies.

3. The district court erred in denying a motion to suppress wiretap evidence because the wiretap authorization orders had allowed law enforcement to use stationary listening posts outside of the issuing court's territorial jurisdiction.

4. The district court failed to instruct the jury that maintenance of drug-involved premises is committed only if storing or distributing drugs constitutes a principal or primary purpose for the defendant's maintenance of the premises.

5. The district court violated the Constitution by sentencing Los to 189 months' imprisonment on count one without a jury finding on the marijuana quantity.

6. The district court erred in imposing a $16,985,250 fine.

We reject Los's first five challenges and agree with the sixth challenge. With these conclusions, we affirm the convictions, affirm the sentence of 189 months' imprisonment

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on count one, and vacate the fine of $16,985,250.

I. The Drug Distribution Network

The charges arose from a large drug-distribution operation that had been manned by over 40 individuals. These individuals obtained marijuana from California and distributed the marijuana in Kansas.

The operation began in 2006 when Mr. Chad Bauman, Mr. Peter Park, and Mr. Wayne Swift began working together to distribute marijuana in Kansas. At first, the individuals obtained their marijuana from Texas and Canada. Eventually, however, the three individuals changed sources and began obtaining their marijuana from California.

Mr. Bauman, Mr. Swift, or another member of the group would drive or fly to California, buy the marijuana, package it, store it in a California warehouse, and ship or drive the marijuana to Kansas.

Los allegedly joined the network as an importer and a dealer. In these roles, Los helped to facilitate the transactions by

• driving money from Kansas to California for someone in the group to buy the marijuana,

• assisting with the purchase and packaging of marijuana in California,

• loading marijuana into crates for shipment to Kansas, and

• selling the marijuana in Kansas to individuals who redistributed the marijuana to others.

The network operated for roughly seven years, but the relationships and work assignments varied over time. For instance, when a dispute arose, Mr. Bauman stopped working with Mr. Park and Mr. Swift. Nonetheless, Los continued to work with Mr. Bauman to acquire marijuana in California and transport the marijuana to Kansas for distribution there. About a year later, Los and Mr. Bauman stopped working together. At that point, Los resumed working with Mr. Park and Mr. Swift as the three individuals continued to acquire marijuana from California and distribute the marijuana in Kansas.

The government began investigating the drug network in 2011. As part of that investigation, the government obtained wiretap authorization orders covering telephones used by suspected members of the network. Ultimately, Los was convicted on 15 counts.

II. Sufficiency of the Evidence

Count 1 charged Los and 42 others with a conspiracy encompassing 1,000 kilograms or more of marijuana. See 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(vii), 846, 856 ; 18 U.S.C. § 2.² Los argues that the trial evidence established only a series of smaller conspiracies rather than a single conspiracy involving 1,000 kilograms or more of marijuana. We disagree.

To review sufficiency of the evidence, we engage in de novo review, considering the evidence in the light most favorable to the government to determine whether any rational jury could have found guilt beyond a reasonable doubt. United States v. Yehling , 456 F.3d 1236, 1240 (10th Cir. 2006). In engaging in this review, we consider all of the evidence, direct and circumstantial, along with reasonable inferences. Id . But we do not weigh the evidence or consider the relative credibility of witnesses. United States v. Wells , 843 F.3d 1251, 1253 (10th Cir. 2016).

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To prove a conspiracy, the government had to show that (1) two or more persons agreed to violate the law, (2) Los knew the essential objectives of the conspiracy, (3) Los knowingly and voluntarily participated in the conspiracy, and (4) the alleged co-conspirators were interdependent. See United States v. Wardell , 591 F.3d 1279, 1287 (10th Cir. 2009). Determining the presence of these elements is a factual issue for the jury. See United States v. Dickey , 736 F.2d 571, 581 (10th Cir. 1984) ("It is essential to emphasize initially that the question whether there existed evidence sufficient to establish a single conspiracy is one of fact for the jury to decide."). This issue turns here on the existence of a common, illicit goal. See id . at 582.

A. Sufficiency of the Evidence on a Single Conspiracy Involving 1,000 Kilograms or More of Marijuana

The trial evidence was sufficient to show the existence of a single conspiracy involving 1,000 kilograms or more of marijuana. In part, this evidence included testimony by co-defendants Park, Swift, Bauman, Alarcon, Villareal, and Mussat. Their testimony was corroborated by recorded conversations, surveillance, seizures, and business records. Together, this evidence showed that Los and others had traveled to California to purchase marijuana, joined efforts to transport the marijuana to Kansas, and coordinated the delivery of marijuana after returning to Kansas. This evidence was sufficient to show formation of a conspiracy with a common goal between all of the participants to acquire and distribute marijuana. See United States v. Dickey , 736 F.2d 571, 582 (10th Cir. 1984) ; cf. United States v. Edwards , 69 F.3d 419, 431 (10th Cir. 1995) (holding that unity of purpose was proven by evidence that the defendants had pooled resources to "periodically travel to Houston to purchase cocaine, and divide the cocaine among the defendants upon return to Tulsa").

Los counters that the government failed to show a single conspiracy because

• the relationships between co-defendants sometimes changed over the course of time and

• the evidence did not show interdependence among co-conspirators.

Both arguments are unavailing.

On the first argument, Los points to a turnover in personnel as the conspiracy progressed. For example, Los, Mr. Park, Mr. Swift, and Mr. Bauman intermittently stopped and resumed doing business with one another, and the suppliers and customers occasionally changed. But changes in a conspiracy's membership do not necessarily convert a single conspiracy into multiple conspiracies. United States v. Roberts , 14 F.3d 502, 511 (10th Cir. 1993).

"That some of the participants remained with the enterprise from its inception until it was brought to an end, and others joined or left the scheme as it went along, is of no consequence if each knew he was part of a larger ongoing conspiracy." United States v. Brewer , 630 F.2d 795, 800 (10th Cir. 1980). The membership changes would not prevent a reasonable jury from finding Los's unity with others in a scheme to distribute large quantities of marijuana. See United States v. Dickey , 736 F.2d 571, 582 (10th Cir. 1984) (numerous marijuana and cocaine transactions over a five-year period with varying participants constituted a single conspiracy).

Second, Los argues that the evidence was insufficient to show interdependence among the co-conspirators. "[I]nterdependence may be shown if a defendant's actions facilitated the endeavors of other alleged co-conspirators or facilitated the

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venture as a whole." United States v. Acosta–Gallardo , 656 F.3d 1109, 1124 (10th Cir. 2011). In our view, the government's evidence was sufficient for a finding of interdependence.

The marijuana network required various individuals to perform different tasks, including growing marijuana in California, transporting funds to California, buying marijuana in California for distribution in Kansas, transporting the marijuana to Kansas, picking up the marijuana in Kansas, and distributing the marijuana in Kansas. See United States v. Edwards , ...