USA. v. Anderson
| Decision Date | 24 August 1999 |
| Docket Number | No. 97-3026,97-3026 |
| Citation | 189 F.3d 1201,1999 WL 641864 |
| Parties | (10th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SYLVESTER ANDERSON, Defendant-Appellant, |
| Court | U.S. Court of Appeals — Tenth Circuit |
Appeal from the United States District Court for the District of Kansas. D.C. No. 95-CR-20086
[Copyrighted Material Omitted]
[Copyrighted Material Omitted] David J. Richman (F.J. "Rick" Dindinger, with him on the briefs), of Burns, Figa & Will, P.C., Englewood, Colorado, for Defendant-Appellant.
Kim M. Berger, Assistant United States Attorney (Jackie N. Williams, United States Attorney, with her on the brief), Kansas City, Kansas, for Plaintiff-Appellee.
Before SEYMOUR, Chief Judge, EBEL and KELLY, Circuit Judges.
Sylvester Anderson was convicted of conspiracy to distribute and possession with intent to distribute cocaine under 21 U.S.C. § 841(a)(i), and money laundering under 18 U.S.C. § 1956(a)(1)(B)(i). He appeals his conviction and sentence. We affirm in part, reverse in part, and remand for resentencing.
Mr. Anderson was named in five counts of a sixteen-count indictment that charged numerous defendants with drug trafficking offenses. The charges arose from an alleged conspiracy to use couriers to transport cocaine and cocaine base from Los Angeles to the Kansas City area for sale, and to transport the proceeds from the sale of the drugs back to Los Angeles. Count One charged Mr. Anderson and fourteen other coconspirators including Robert White with conspiring to distribute the drugs, Count Seven charged Mr. Anderson with possessing ten kilograms of cocaine with intent to distribute, Count Eight charged him and two others with possessing seven kilograms of cocaine with intent to distribute, Count Ten charged him and Mr. White with possessing one kilogram of cocaine with intent to distribute, and Count Sixteen charged Mr. Anderson with money laundering.
All of those named in the indictment pled guilty except Mr. Anderson and Mr. White, who were tried together. The district court granted Mr. White's motion for judgment of acquittal on the conspiracy count, and sent the remaining counts against Mr. Anderson and Mr. White to the jury. Mr. Anderson was convicted of conspiracy under Count One, possession of seven kilograms of cocaine with intent to distribute under Count Eight, and money laundering under Count Sixteen. The jury was unable to reach a verdict on either Count Seven, which charged Mr. Anderson with possessing ten kilograms of cocaine, or Count Ten, which charged him and Mr. White with possessing one kilogram.1 A mistrial was declared as to those counts.
In sentencing Mr. Anderson, the district court enhanced his offense level two points based on his alleged leadership role in the offenses, and two points based on a finding that he had committed perjury or obstructed justice in the proceedings. The judge imposed concurrent sentences of 396 months on Counts One and Eight, and 240 months on Count Sixteen.
Mr. Anderson argues on appeal that (1) the evidence was insufficient to support his convictions; (2) the district court erred in refusing to allow his counsel to withdraw prior to trial; and (3) the court erred in enhancing his sentence based on his role in the offense and the commission of perjury.
Mr. Anderson contends the evidence was insufficient to support any of his convictions. In addressing this claim, we view the evidence most favorably to the government to determine whether any rational jury could have found the elements of the crimes beyond a reasonable doubt. See United States v. Jones, 44 F.3d 860, 864 (10th Cir. 1995). "The jury, as fact finder, has discretion to resolve all conflicting testimony, weigh the evidence, and draw inferences from the basic facts to the ultimate facts." United States v. Valadez-Gallegos, 162 F.3d 1256, 1262 (10th Cir. 1998). Id. We begin our consideration by reviewing the trial evidence relevant to both the conspiracy and possession convictions because they are interrelated. We address the money laundering conviction separately.
In Count One, the government charged that fourteen coconspirators, including Mr. Anderson, conspired with numerous unindicted coconspirators to distribute cocaine and cocaine base by recruiting couriers to travel from the Kansas City area to Los Angeles, pick up large quantities of the drugs, and return primarily by bus to Kansas City. Mr. Anderson and others were charged with distributing the drugs. Couriers were also allegedly recruited to travel from Kansas City to Los Angeles to return the proceeds from the drug sales. The indictment charged that the conspiracy was organized and controlled by James Walton in Los Angeles, and that he was the source of the drugs brought back for sale in Kansas City.
Count One alleged numerous overt acts in furtherance of the conspiracy, several of which named Mr. Anderson. One overt act charged that Mr. Anderson picked up a courier, Dishire Davey, at the airport in Los Angeles after she had been recruited by other coconspirators to fly there and bring drugs back to Kansas City. This allegation also formed the basis of Mr. Anderson's conviction on Count Eight for aiding and abetting possession with intent to distribute seven kilograms of cocaine. Another overt act in furtherance of the conspiracy alleged that Mr. Anderson distributed a kilogram of cocaine to Mr. White on January 19, 1995. This allegation also formed the basis of the substantive charge in Count Ten that resulted in a mistrial.
We begin our assessment of the sufficiency of this evidence by acknowledging, as Mr. Anderson points out, that much of the evidence presented at trial in support of his role in the offenses was conflicting and subject to impeachment. Juan Harkness, an unindicted coconspirator, testified that he took part in the conspiracy by delivering drugs to Mr. Anderson from Mr. Walton. Mr. Harkness stated that Mr. Walton would page him and instruct him on delivering the drugs to Mr. Anderson, that he took about two kilograms to Mr. Anderson every other week in Kansas, and that Mr. Anderson paid cash for them. Although this evidence supports the count charging that Mr. Anderson was a member of the conspiracy, its probative value was undercut by the fact that it also formed the basis for the substantive count of possessing ten kilograms with intent to distribute set out in Count Seven that resulted in a mistrial.
Mr. Harkness also testified about the incident set out as an overt act in furtherance of the conspiracy that formed the basis for Count Eight, the substantive count upon which Mr. Anderson was convicted, charging him and other coconspirators with possessing seven kilograms of cocaine with intent to distribute. Mr. Harkness testified that he was told by Mr. Walton to arrange for a courier to fly to Los Angeles. Mr. Harkness went to an apartment, met a woman named Dishire Davey, gave her a plane ticket, and took her to the airport. A few days later he received a page from Mr. Walton telling him to pick up Ms. Davey at the bus station in Topeka, Kansas. He and Mr. Walton arrived at the station but Ms. Davey never appeared. Mr. Harkness did not implicate Mr. Anderson in the incident involving Ms. Davey, however, testifying to the contrary that Mr. Anderson was not at the apartment when he picked up Ms. Davey and took her to the airport, and that Mr. Anderson could not have met her at the Los Angeles airport because he and Mr. Anderson were together at a concert later that night in Kansas.2
However, Dishire Davey also testified about Mr. Anderson's involvement in the conduct underlying Count Eight. She stated that she was recruited by others to make a trip to California and bring back what she knew was an illegal substance. She further stated that Mr. Harkness took her to the airport in Kansas, and that Mr. Anderson was a passenger in the Lexus that picked her up at the Los Angeles airport. She remained in California about four days before an unidentified man picked her up at the hotel and took her to the bus station. The man gave her a ticket and a box, instructing her to say that the box contained a computer terminal if she were asked about its contents. She arrived in Topeka early in the morning and paged Mr. Harkness. Before she heard from him, she was questioned by DEA agents and decided to cooperate. The agents opened the box in her presence and discovered seven kilograms of cocaine. Ms. Davey was positive at trial in her identification of Mr. Anderson as the passenger in the car that met her in Los Angeles.
Lisa Gaitan, an unindicted coconspirator, testified about her role in the conspiracy in Kansas and provided the most persuasive evidence linking Mr. Anderson to it. She knew Mr. Anderson through Mr. Walton, who was her high school friend. She testified that she brought money to Mr. Walton in Las Vegas and visited him in Los Angeles. She made arrangements with Mr. Walton to visit him again in Los Angeles and agreed to bring a package with her. Mr. Walton arranged for Mr. Anderson to take her to the bus station and gave her Mr. Anderson's pager number. She testified that after Mr. Anderson picked her up, they stopped by someone's house on the way to the station and Mr. Anderson went inside. He came out with a gray box about the size of a tissue box wrapped in gray tape. When they arrived at the bus station, Mr. Anderson went in and bought the ticket while she waited in the car. She had packed one bag for the trip and Mr. Anderson gave her another one. She put half her clothes in the other bag along with the box. After buying the ticket, they left to get something to eat and were stopped by the police on the way back to the...
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