US v. Adkins

• Decision Date: 13 December 2001
• Docket Number: No. 00-1057,DEFENDANT-APPELLANT,PLAINTIFF-APPELLEE,00-1057
• Citation: 274 F.3d 444
• Parties: (7th Cir. 2001) UNITED STATES OF AMERICA,, v. ASHER ADKINS,
• Court: U.S. Court of Appeals — Seventh Circuit

Page 444

274 F.3d 444 (7th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. ASHER ADKINS, DEFENDANT-APPELLANT.

No. 00-1057

IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Argued November 28, 2000

December 13, 2001

Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 1:93-CR-27--William C. Lee, Chief Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Robert N. Trgovich (argued), Office of the U.S. Atty., Fort Wayne, IN, for appellant.

Scott E. Bratton (argued), Wong & Associates, Cleveland, OH, for Appellant.

Before Fairchild, Diane P. Wood and Evans, Circuit Judges.

Diane P. Wood, Circuit Judge.

In 1993, Asher Adkins was convicted of five counts of distribution of methamphetamine, two counts of conspiracy to distribute methamphetamine, and two counts of using or carrying a handgun during a drug trafficking offense. He disappeared before the last day of his trial and was convicted in absentia. He remained a fugitive until 1999, when he was caught, returned to Indiana, and sentenced by the trial court. Adkins now appeals various aspects of his conviction and sentence.

I.

In 1989, Adkins and Marvin Miller began making regular trips to California to purchase large quantities of methamphetamine. According to the trial testimony, Adkins, sometimes with Miller and sometimes alone, made at least 10 and perhaps as many as 40 trips between 1989 and 1993; on each trip, they brought back between 1 and 1½ pounds of methamphetamine. Adkins sold the drugs from these trips, in bulk, to Dan Tyner and Scott Hummel, who then further distributed the drugs. Several witnesses testified that Adkins and Miller regularly carried handguns on their trips to California, and that Adkins and Miller had told them they carried the guns to protect themselves and the drugs because the trips were "risky business." Hummel also testified that on at least one occasion, just after Adkins had given him a pound of methamphetamine, Adkins pulled a gun out from under his truck seat and showed it to Hummel.

After the first delivery, Adkins and Miller realized that they could increase their profits by taking some of the methamphetamine out of the packages they sold to Hummel and Tyner and replacing it with filler. Adkins and Miller sold the drugs they removed to smaller-scale dealers. Using drugs from this source and possibly from other sources, Adkins began a smaller-scale distribution business, in which he distributed quantities of between ½ ounce and 4 ounces of methamphetamine to at least three street-level dealers on an almost daily basis. Adkins used Lori Tuttle as a go-between for many of these transactions: he supplied her with a pager and told his buyers that they should contact her if he was not available. She actually made many of the sales for him. Tuttle, who was Adkins's co-defendant at trial, also kept a ledger detailing the sales she made to the street dealers and the amount of money the dealers owed Adkins.

Based on this evidence, the jury convicted Adkins of two counts of conspiracy to distribute methamphetamine in violation of 21 U.S.C. sec. 846, five counts of distribution of methamphetamine in violation of 21 U.S.C. sec. 841(a)(1), and two counts of using or carrying a handgun during a drug trafficking offense in violation of 18 U.S.C. sec. 924(c). As noted above, Adkins disappeared before the last day of trial, so the jury convicted him in absentia. Nearly six years later, after he was caught and returned to Indiana, the district court sentenced Adkins to concurrent 27-year sentences on each of the seven drug counts and consecutive sentences of 20 years and five years on the two gun counts. In this appeal, Adkins raises various challenges to the convictions on the conspiracy and gun counts. He also argues that he is entitled to a new trial because his trial counsel was ineffective. Finally, he argues that the sentences the district court imposed on the drug counts were unconstitutional in light of the Supreme Court's recent holding in Apprendi v. New Jersey, 530 U.S. 466 (2000). Only the last of Adkins's contentions has merit.

II.

Adkins raises two challenges to his conspiracy convictions. First, he argues that he was guilty of at most one conspiracy, not two, and thus the conspiracy charges were multiplicitous. In the alternative, Adkins argues that the evidence presented at trial was insufficient to convict him of either conspiracy the government alleged. Because Adkins did not object to the multiple conspiracy counts in the district court, our review of his contention that the counts were multiplicitous is for plain error only. United States v. Briscoe, 896 F.2d 1476, 1522 (7th Cir. 1990). In reviewing the sufficiency of the evidence on each conspiracy count, we take the evidence presented at trial and all reasonable inferences that can be drawn from it in the light most favorable to the government, and we will reverse the convictions only if no reasonable jury could have found each element of the conspiracies beyond a reasonable doubt. United States v. Swan, 250 F.3d 495, 500 (7th Cir. 2001).

Although Adkins denies that there was sufficient evidence to convict him of a conspiracy at all, he argues that if there was a conspiracy, there was only one large conspiracy, not the two separate conspiracies charged in the indictment. The critical question in determining whether an indictment charging two conspiracies is multiplicitous "is whether a conspiracy has been subdivided arbitrarily, resulting in multiple [counts] for a single illegal agreement." United States v. Morrison, 946 F.2d 484, 493-94 (7th Cir. 1991). In considering whether there are two agreements or only a single, arbitrarily divided agreement, we consider "such factors as whether the conspiracies involve the same time period, alleged co-conspirators and places, overt acts, and whether the two conspiracies depend upon each other for success." United States v. Powell, 894 F.2d 895, 898 (7th Cir. 1990). In undertaking this analysis, we are mindful of "the rock and the hard place between which we place the government if we are overly exacting in [our] analysis: on the one hand, . . . the government may not charge multiplicitous conspiracies; on the other, we have not infrequently discouraged the government from indicting too many defendants under the skimpy guise of a single overarching conspiracy." Morrison, 946 F.2d at 494.

In arguing that there was only one conspiracy in this case, Adkins points out that both he and Miller were involved in all the conduct charged by the government, that only one type of drug was involved in the case, that all the drugs involved came from the same source, and that the time frame the government charged for the first conspiracy, July to August of 1992, was completely within the time frame of the second conspiracy, which was from the summer of 1989 until April 1993. Therefore, Adkins argues, the majority of the factors discussed in Powell weigh in favor of a finding that there was at most a single conspiracy.

However, there was another way to look at the case. As the government saw it, Adkins, Miller, Tyner, and Hummel were involved in one conspiracy to import large quantities of meth from California. That conspiracy lasted for several years, and Adkins's involvement was limited to bringing the bulk drugs back and selling them to Tyner and Hummel. Adkins exercised no control over the drugs after Tyner and Hummel took possession of them. The second conspiracy was Adkins's smaller-scale operation in the summer of 1992. That conspiracy involved Adkins, Tuttle, Miller, and Adkins's other street-level dealers. Adkins's role in that conspiracy was to supply the street-level dealers with small quantities of drugs. As evidence that the two conspiracies were separate, the government notes that Tuttle and the street-level dealers, other than Miller, had no knowledge of the large-quantity conspiracy and did not know Tyner and Hummel. Tyner and Hummel similarly were not involved in the small-quantity operation. Moreover, the small-quantity operation began as a way to dispose of the drugs that Adkins and Miller were stealing from the large-quantity conspiracy, and so the two operations were not only separate, but had conflicting interests.

This was enough, in our view, to permit the government to charge separate conspiracies. There was little overlapbetween the conspirators in each conspiracy. The large-quantity conspiracy went on for much longer than the small-quantity conspiracy did. The overt acts that made up each conspiracy were entirely distinct, and the conspiracies were carried out in different places: the large-quantity conspiracy involved trips back and forth to California and transactions in Hummel's and Tyner's houses, while the small-quantity sales were made in the parking lots of various Indiana establishments. Finally, although the conspiracies depended on each other for success in the sense that Adkins was the primary supplier of drugs for both conspiracies, the conspiracies were not economically interdependent, and Adkins could have discontinued one and continued the other at any time. For these reasons, the government's decision to treat the two conspiracies separately cannot be considered arbitrary, and the two conspiracy counts were not multiplicitous.

We therefore turn to Adkins's contention that the evidence of each conspiracy was insufficient to sustain his convictions. "A conspiracy conviction requires a showing that a conspiracy existed (two or more persons joined together for the purpose of committing a criminal act) and that the charged party knew of and intended to join the agreement." United States v. Cavender, 228 F.3d 792, 800 (7th Cir. 2000). A mere buyer-seller relationship is not enough to sustain a conspiracy conviction; rather, there must be some evidence of jointly...