US v. Wilson

• Decision Date: 29 March 2001
• Docket Number: Nos. 99-6348,99-6358,99-6383,s. 99-6348
• Citation: 244 F.3d 1208
• Parties: (10th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ALFRED JEROILD WILSON, FREDERICK WAYNE BURLEY, and CARLOS DION HISHAW, Defendants-Appellants,
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1208

244 F.3d 1208 (10th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ALFRED JEROILD WILSON, FREDERICK WAYNE BURLEY, and CARLOS DION HISHAW, Defendants-Appellants,

Nos. 99-6348, 99-6358, 99-6383

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

March 29, 2001

Appeal from the United States District Court for the WesternDistrict of Oklahoma. (D.C. No. CR-98-206-T) [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Vicki Mandell-King, Assistant Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on the briefs), Denver, Colorado, for Defendant-Appellant Wilson.

Leslie M. Maye, Assistant United States Attorney (Daniel G. Webber, Jr., United States Attorney, and Sue Tuck Richmond, Assistant United States Attorney, with her on the briefs), Oklahoma City, Oklahoma, for Plaintiff-Appellee.

Thomas D. McCormick of Oklahoma City, OK, submitted briefs for Defendant-Appellant Burley.

Joseph L. Wells of Oklahoma City, Oklahoma, submitted briefs for Carlos Dion Hishaw.

Daniel G. Webber, Jr., United States Attorney, and Leslie M. Maye, Assistant United States Attorney, Oklahoma City, Oklahoma, submitted a brief in each case for Plaintiff-Appellee.

Before SEYMOUR, HENRY and LUCERO, Circuit Judges.

SEYMOUR, Circuit Judge.

Alfred Wilson, Frederick Burley, and Carlos Hishaw were three of thirteen defendants indicted together as part of an extensive drug distribution conspiracy operating in the Oklahoma City area. The three were tried jointly. They were convicted on multiple counts of possession and distribution of cocaine base (crack) and conspiracy in violation of 21 U.S.C. 841 and 846. Each appeals various aspects of his conviction or sentence, and because the appeals share a factual history, we have consolidated them for purposes of this disposition. We affirm appellants' convictions and sentences for the reasons discussed below.

I Background

In late 1995, Jeffrey Norris and Robert Moore formed a partnership to transport cocaine powder from Houston and Los Angeles to the Oklahoma City area, "rock up" the cocaine powder into crack cocaine, and then sell the crack on the local market. Their plan was to sell crack on the "volume discount" model employed by many legitimate businesses. By selling the drug at a low profit margin but in large quantity, they could offer below-market prices on each individual sale while still making significant profits when all sales were aggregated. Like most successful entrepreneurs, they reinvested early profits into the business, using money from drug sales to pay the salaries of drivers and other employees, to lease apartments, and to buy more cocaine powder to convert into crack. The business flourished, and as sales grew they hired a number of "wholesale distributors," upper-level dealers who purchased crack in quantities ranging from four-and-a-half ounces to over a kilogram and then re-distributed the drug to middle-level dealers or directly to users. These wholesale distributors included Alfred Wilson, Frederick Burley, and Carlos Hishaw.

There was only one hitch in the Norris-Moore business plan: the business itself was illegal. The Oklahoma City police department began investigating the drug ring in 1997, with help from the FBI, IRS, DEA, and a police task force based in Houston. By late 1998 all major co-conspirators had been indicted. Despite its ultimate failure, the conspiracy did a substantial amount of business during its three years of operation, transporting an estimated 250 kilograms (over 500 pounds) of cocaine powder into Oklahoma and transforming it into approximately 375 kilograms (over 800 pounds) of crack cocaine.

Messrs. Wilson, Burley, and Hishaw, along with other alleged co-conspirators, were charged in an eighty-seven count indictment filed in the Western District of Oklahoma in November 1998. Count One charged all thirteen with conspiring with Jeffrey Norris and Robert Moore to possess with intent to distribute and to distribute cocaine base in violation of 21 U.S.C. 846. The majority of the remaining counts alleged possession or distribution of cocaine base, describing particular drug transactions involving indicted individuals and setting forth the details of each transaction, including the quantity of drugs allegedly possessed or distributed.

After the other ten co-conspirators pled guilty or otherwise severed their cases, Messrs. Wilson, Burley, and Hishaw were tried together before a jury. After one charge against Alfred Wilson was dismissed at trial, he was convicted on the conspiracy charge and two counts of possession with intent to distribute crack cocaine. He was sentenced to 262 months' imprisonment and five years' supervised release on each of the three counts, with terms to run concurrently. The jury found Frederick Burley not guilty of one possession charge but guilty on seven other counts, including the conspiracy charge. He was given concurrent sentences of thirty years in prison and five years' supervised release for each count. Carlos Hishaw was convicted on all fourteen of the counts charged against him, including the conspiracy count and a firearm possession charge. He was sentenced to concurrent terms of thirty years' imprisonment and five years' supervised release on all but the firearm charge, which carried a concurrent term of ten years in prison and three years' supervised release.

A forfeiture hearing was subsequently held, at which all defendants waived their right to a jury trial and consented to trial of the forfeiture issue by the district court. The court imposed the full forfeiture amount sought by the government, $4.25 million, which was computed by multiplying the 250 kilograms of cocaine allegedly sold by the "wholesale price" of $17,000 per kilogram. The full $4.25 million forfeiture was levied jointly and severally against all defendants, although in fact the government could seize only a 1995 Camaro belonging to Carlos Hishaw and $6,245 in cash belonging to two other co-conspirators. We address in turn the issues raised on appeal by each defendant.

II Alfred Wilson

Alfred Wilson originated his appeal to challenge two aspects of the final forfeiture order, in which all thirteen defendants were held jointly and severally liable for forfeiting $4.25 million in drug proceeds under 21 U.S.C. 853. He argues first that the district court erred in holding him jointly and severally liable for proceeds from the entire 250 kilograms of crack, since only 19.4 kilograms were attributed to him at sentencing. He argues further that the court was wrong to order forfeiture of gross drug proceeds, contending the net profit after expense deductions yields a more appropriate figure. The district court considered both objections and, while noting the Tenth Circuit had yet to rule on either issue, determined the proper standard for criminal forfeiture under section 853 encompasses joint and several liability for gross proceeds. We do not consider either question, since Mr. Wilson's forfeiture challenge is unripe at this time.

A. Forfeiture

The indictment issued against Mr. Wilson and the other defendants included allegations seeking criminal forfeiture of "[a]pproximately $4,250,000 in United States currency, in that such sum in aggregate was received in exchange for the distribution of controlled substances or is traceable thereto." App., vol. 1, indict. at 45. This figure was obtained by multiplying estimated sales of 250 kilograms of cocaine powder by a wholesale price of $17,000 per kilogram. During the course of the investigation, however, only $6,245 in cash and a Camaro were actually seized. Although the relevant statute, 21 U.S.C. 853, allows jury determinations of forfeiture questions during trial, the three defendants waived their right to a jury trial on forfeiture and agreed to have a separate hearing before the court at the conclusion of other proceedings.

At the forfeiture hearing, the government sought to hold all co-conspirators jointly and severally liable for forfeiture of the entire $4.25 million garnered by the crack distribution scheme. Carlos Hishaw objected to the government's seeking joint and several liability as opposed to holding each co-conspirator individually liable for the amount of drugs attributed to him at sentencing. He also objected to calculating the forfeiture figure based upon gross drug proceeds rather than the profit actually netted after deducting expenses. Frederick Burley merely noted he had no interest in any of the seized property. Mr. Wilson stated that "there was no property seized [from him], so we don't . . . . claim any interest in the property." App., vol. 8 at 1311. However, he went on to "incorporate" Mr. Hishaw's objection to calculating forfeiture amounts based on gross proceeds rather than net profits. Id. The court determined the Tenth Circuit had not ruled on either of the two objections, but surveyed the law of other circuits and concluded the proper forfeiture standard is one of joint and several liability for gross proceeds, ultimately holding each defendant responsible for forfeiture of the full $4.25 million sought by the government.

Mr. Wilson now seeks to raise both of the earlier objections. His argument regarding the use of gross proceeds instead of net profits fails from the start. While this appeal was pending we decided that question in United States v. Keeling, 235 F.3d 533, 537 (10th Cir. 2000), holding section 853 contemplates forfeiture of "gross proceeds and not merely profits." Mr. Wilson's appeal suffers from a more basic problem, however: his appeal of the forfeiture order is not ripe.

Under Article III of the Constitution, federal courts have subject matter jurisdiction only over "cases and controversies."¹ Whether a claim is ripe for adjudication, and therefore presents a case or controversy, bears directly on this jurisdiction. See New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495,...