United States v. Ellis

• Decision Date: 24 August 2017
• Docket Number: Nos. 14–3165 & 14–3181,s. 14–3165 & 14–3181
• Citation: 868 F.3d 1155
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Marvin Lee ELLIS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

868 F.3d 1155

UNITED STATES of America, Plaintiff–Appellee,

v.Marvin Lee ELLIS, Defendant–Appellant.

Nos. 14–3165 & 14–3181

United States Court of Appeals, Tenth Circuit.

FILED August 24, 2017

Rabindranath Ramana, Calvert Law Firm, Oklahoma City, Oklahoma, for Defendant–Appellant.

Carrie N. Capwell, Assistant United States Attorney (Barry R. Grissom, United States Attorney, with her on the brief), United States Attorney's Office, Kansas City, Kansas, for Plaintiff–Appellee.

Before HARTZ and PHILLIPS, Circuit Judges.^*

PHILLIPS, Circuit Judge.

In 2009, law-enforcement officials began investigating a Mexican cocaine-trafficking operation extending into the Kansas City area. This led them to several suspects, including Marvin Ellis, a low-level powder-cocaine buyer, who was working with two others to buy powder cocaine and cook at least some of it into cocaine base (crack cocaine) for resale. In 2012, Kansas police arrested Ellis after he fled from a traffic stop. At arrest, Ellis had a stolen handgun, miscellaneous drugs, and some drug-dealer paraphernalia. Later, based on this and separate evidence from the federal investigation, a federal grand jury charged Ellis with several drug and firearm felonies. The most serious charge against Ellis was for his conspiring with 49 other persons to manufacture, distribute, or possess with the intent to distribute at least 5 kilograms of powder cocaine and 280 grams of crack cocaine.

After the jury convicted Ellis on all charges, the district court imposed consecutive sentences for the cocaine-conspiracy count and a firearm count and concurrent sentences for the remaining counts. Ellis received a sentence of life without release on the cocaine-conspiracy count (after applying a sentencing enhancement under 21 U.S.C. § 851 for his two earlier felony-drug-offense convictions), a mandatory-minimum five-year term for possession of a firearm in furtherance of a drug-trafficking crime under § 924(c), and statutory maximum sentences on all remaining counts. Later, the district court revoked Ellis's supervised release from a 2007 federal conviction and sentenced him to an additional consecutive 24 months' imprisonment.

Ellis now appeals some of his convictions and sentences. In Appeal No. 14–3165, Ellis (1) challenges his convictions under 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A), 18 U.S.C. § 924(c), and 21 U.S.C. § 856 ; (2) argues that his life sentence for the conspiracy conviction violates the Fifth and Sixth Amendments; and (3) argues that the district court violated his Sixth Amendment right to counsel at sentencing. In Appeal No. 14–3181, Ellis challenges the consecutive sentence for his supervised-release violation, based on the district court's denying him substitute counsel.

In Appeal No. 14–3165, we affirm all of Ellis's convictions and all of his sentences except one. Though we affirm Ellis's cocaine-conspiracy conviction, we reverse its accompanying life-without-release sentence because (1) the jury never found that Ellis was individually responsible for the charged amounts of powder or crack cocaine, either from his own acts or the reasonably foreseeable acts of his coconspirators; and (2) the government's evidence does not show that omitting this element was harmless beyond a reasonable doubt. In Appeal No. 14–3181, we affirm Ellis's sentence for violating his supervised release. We remand to the district court for a full resentencing, subject to resentencing on the cocaine-conspiracy count under 21 U.S.C. § 841(b)(1)(C).

BACKGROUND

I. The Investigation

In 2009, Drug Enforcement Administration (DEA) agents began investigating a Mexican cocaine-trafficking network that was supplying the Kansas City area. Agents learned that Mexican drug sources were shipping multi-kilogram deliveries of powder cocaine from Mexico into and near Kansas City. In addition, agents learned that some of this powder cocaine was going to local drug dealers, including Djuane Sykes, who was selling large amounts of cocaine to several customers from the 2200 block of Russell Avenue in Kansas City, Kansas.

Among Sykes's many customers were Ataven Tatum and Marvin Ellis. In August 2011, Ellis had been released from prison to supervised release after serving time on a 2007 conviction for violating 18 U.S.C. § 924(c). By November 2007, Ellis had begun working with Tatum and Ellis's nephew, Theoplis Ellis (Theoplis), to buy powder cocaine from Sykes and cook at least some of it into crack cocaine for sale to their customers. Over the next few months, the three men worked together to sell drugs, including crack cocaine. They sold the drugs from different locations, including from a house at 921 Haskell Avenue. In October 2011, Ellis leased this residence, and in November, Tatum signed a contract for deed to buy it.

II. Ellis's Arrest

In late April 2012, a Kansas City, Kansas police officer, Patrick Locke, stopped Ellis for a traffic violation. After first pulling over to the roadside, Ellis sped away when Office Locke's partner approached the car. Officer Locke gave chase until Ellis crossed the Kansas state line into Missouri.

Two weeks later, just after midnight on May 11, Officer Locke again stopped Ellis for a traffic violation. As before, Ellis pulled over but then sped away. Again, Officer Locke chased Ellis, this time at speeds up to 80 miles per hour. The chase ended when Ellis lost control of his car after it hit a curb. When his car came to rest, Ellis jumped from it and ran. During the ensuing foot chase, Officer Locke saw that Ellis was carrying a green plastic bag. When Ellis was subdued on the ground, Officer Locke saw Ellis holding his right hand in his waistband—causing Officer Locke to fear that Ellis had a gun. Officer Locke tasered Ellis, yet Ellis refused commands to remove his hand from his waistband. When Officer Locke threatened to shoot Ellis, Ellis dropped the green bag and threw a pistol about 10 to 15 feet away.

After finally subduing and arresting Ellis, Officer Locke gathered Ellis's thrown gun—a stolen, loaded .40 caliber pistol. Officer Locke also collected Ellis's discarded green bag, which contained an empty sandwich-bag box, a digital scale, 2.5 grams of powder cocaine, about 32 grams of synthetic marijuana, 25.8 grams of PCP in a bottle, 3.1 grams of marijuana, 16 mollies (ecstasy/MDMA), and 8 Diazepam pills.

III. The Charges

In October 2012, a grand jury sitting in the District of Kansas issued a sweeping 112–count Second Superseding Indictment against 51 defendants, including Ellis, Tatum, and Theoplis.¹ In a vast cocaine-conspiracy count under 21 U.S.C. § 846, naming 50 defendants including Ellis (reaching all the way up to the Mexican cartel), the grand jury charged that the 50 defendants

[k]nowingly and intentionally conspired and agreed together and with each other, and with other persons known and unknown to the Grand Jury, to commit the following offenses against the United States: to manufacture, to possess with intent to distribute and to distribute 280 grams or more of cocaine base, "crack," a controlled substance; and to possess with intent to distribute and to distribute five kilograms or more of a mixture and substance containing cocaine, a controlled substance; all in violation of Title 21, United States Code, Sections 841(a)(1), (b)(1)(A)(ii), (b)(1)(A)(iii) and Title 18, United States Code, Section 2.

R. vol. I (3165) at 547.

Eight months after filing the Second Superseding Indictment, the government filed an Information under 21 U.S.C. § 851 to enhance Ellis's sentence. Because Ellis had two earlier convictions for felony drug offenses, the § 851 Information subjected him to an increased mandatory sentence—life without release—if he was convicted and sentenced for the conspiracy charge under 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A).²

The Second Superseding Indictment also charged Ellis with six counts of knowingly and intentionally distributing crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), and aiding and abetting those offenses, in violation of 18 U.S.C. § 2 ; one count of maintaining a drug-involved premises, in violation of 21 U.S.C. § 856(a)(1)–(2) ; one count of knowingly and unlawfully possessing a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c) ; and one count of possessing a firearm as a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e).

IV. Trial

Ellis was tried with several coconspirators, some of whom pleaded guilty during the trial. In the end, Ellis proceeded to a jury verdict with three others: Robert Vasquez, Vernon Brown, and Kyle Stephen.

A. Conspiracy Evidence

The government sought to prove the cocaine-conspiracy count against Ellis by the testimony of several witnesses, including three cooperating witnesses, four law-enforcement officers who had arranged the controlled buys of crack cocaine from Ellis and Tatum, and other law-enforcement officers who had participated in the investigation.

One government witness, Djuane Sykes, testified that he knew Ellis, Ataven Tatum, and Theoplis. Sykes said that in late 2011, Ellis and Tatum approached him to buy powder cocaine for resale. At this meeting, Sykes sold Ellis an ounce of cocaine for $700. Sykes also testified that Ellis—either for himself or for Tatum—continued to buy powder cocaine from him. Sykes said that Ellis sometimes bought half or full ounces of powder cocaine. Sykes never said how many times Ellis alone had bought powder cocaine from him. But Sykes did say that Ellis, when with Tatum, had bought powder cocaine from him "[m]aybe ten or 15 times." R. vol. IV (3165) at 1590. Each time, Ellis bought between a "half-ounce to a [sic] ounce of cocaine." Id. at 1589. In addition, Sykes said that Tatum bought a "half-ounce to three ounces" of powder cocaine from him "once or twice a week." R. vol. IV (3165) at 1587. Sykes also said that Tatum sent Ellis or Theoplis to pick up cocaine "[p]robably four or five times." Id . at 1590.

Another...