F I L E D United States Court of Appeals Tenth Circuit PUBLISH JUN 5 1998 UNITED STATES COURT OF APPEALS PATRICK FISHER Clerk TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 97-6146
ROBERT JOHNSTON,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (D. Ct. No. CR-96-115-L)
Fred L. Staggs, Oklahoma City, Oklahoma, appearing for Defendant-Appellant.
Timothy W. Ogilvie, Assistant U.S. Attorney (Patrick M. Ryan, U.S. Attorney, with him on the brief), Office of the United States Attorney, Oklahoma City, Oklahoma, appearing for Plaintiff-Appellee.
Before TACHA, BRORBY, and EBEL, Circuit Judges.
TACHA, Circuit Judge.
Robert Johnston was a defense attorney in Oklahoma City. Richard Jarvis,
a drug dealer who previously had used Johnston for legal representation on other
matters, asked Johnston to lie on Jarvis’s behalf by telling two men to whom Jarvis owed drug money that Jarvis had been arrested. The purpose of the false
story was to deter the two men from making further contact with Jarvis. Johnston
complied with Jarvis’s request, and Jarvis was never bothered again about the
money he owed. Thereafter, Jarvis continued to deal drugs. For his lies,
Johnston was convicted of one count of conspiracy to distribute marijuana, in
violation of 21 U.S.C. §§ 841(a)(1) and 846, and three counts of use of a
telephone to facilitate the distribution of marijuana, in violation of 21 U.S.C.
§ 843(b). Johnston raises four issues on appeal. We exercise jurisdiction under
28 U.S.C. § 1291 and affirm.
BACKGROUND
In the fall of 1995, Drug Enforcement Administration agents began
investigating Jarvis, whom they had identified as an Oklahoma City marijuana
dealer. An Oklahoma state court order authorized the agents to tap Jarvis’s home
and business telephone lines. Two men, known only as Alex and Ramone, fronted
Jarvis 200 pounds of marijuana for $110,000, meaning Jarvis obtained the drugs
on credit. Jarvis, in turn, fronted the drugs to three other dealers. Apparently, the
drug business was slow, and Jarvis’s customers could not fully pay him for the
drugs. In turn, Jarvis could not fully pay Alex and Ramone the money he owed
them. According to Jarvis’s testimony at trial, Alex threatened to kill Jarvis if
Jarvis did not soon pay off the balance of the debt.
-2- Thereafter, Jarvis called Johnston, who previously had represented him on
other non-drug related matters. Jarvis asked Johnston for help in concocting a
story to make it appear to Alex and Ramone that Jarvis had been arrested for
dealing drugs so that they would avoid future contact with him. Jarvis asked
Johnston to tell the story to Alex and Ramone. Johnston agreed. He initially told
Kirby Kyles, one of Jarvis’s customers, that Jarvis had been arrested, anticipating
that Kyles would pass that information along to Alex and Ramone. Kyles did tell
Alex and Ramone the story. Alex and Ramone then came to Johnston’s office to
confirm the story, and Johnston verified the canard. The DEA learned about
Johnston’s involvement in the scheme through the phone taps on Jarvis’s phones.
The grand jury indicted Johnston on one count of conspiracy to distribute
marijuana, four counts of using a telephone to facilitate the distribution of
marijuana, and one count of attempt to possess decadurobolin, a steroid. Before
trial began, the defendant pleaded guilty to the steroid charge. After a three-day
trial, a jury returned a guilty verdict against Johnston on the conspiracy charge
and on three of the four use-of-telephone charges. He was sentenced to 26
months in prison on the conspiracy count, 26 months on each of the use-of-
telephone counts, and 12 months on the steroid charge, with all sentences running
concurrently.
On appeal, Johnston asserts that (1) there was insufficient evidence to
-3- convict him of any of the charged counts; (2) the district court committed
reversible error by denying certain jury instructions; (3) the district court should
have suppressed the intercepted phone conversations between Jarvis and Johnston
because the interceptions were not made in conformity with the order authorizing
the phone taps; and (4) the district court erred in computing the defendant’s
offense level under the sentencing guidelines.
DISCUSSION
I. Sufficiency of the Evidence
In determining whether there is sufficient evidence to support the jury’s
verdict, this court reviews the record de novo. See, e.g., United States v. Wilson,
107 F.3d 774, 778 (10th Cir. 1997). Evidence is sufficient to support a conviction
if, considered in the light most favorable to the government, it would allow a
reasonable jury to find the defendant guilty beyond a reasonable doubt. See id.
In evaluating the evidence under this standard, the court will not question a jury’s
credibility determinations or its conclusions about the weight of the evidence.
See United States v. Johnson, 57 F.3d 968, 971 (10th Cir. 1995).
A. Conspiracy Charge
The defendant contends that the evidence presented at trial was
insufficient as a matter of law to establish the agreement and intent elements to
the conspiracy charge. The drug conspiracy statute provides, “Any person who
-4- attempts or conspires to commit any offense defined in this subchapter shall be
subject to the same penalties as those prescribed for the offense, the commission
of which was the object of the attempt or conspiracy.” 21 U.S.C. § 846. Johnston
was convicted of conspiracy to violate 21 U.S.C. § 841(a)(1), which criminalizes
the knowing or intentional distribution of marijuana. To obtain a conviction
under section 846, the government must prove that “the defendant knew at least
the essential objectives of the conspiracy and knowingly and voluntarily became a
part of it.” United States v. Johnson, 42 F.3d 1312, 1319 (10th Cir. 1994). The
government is not required to prove the commission of an overt act in furtherance
of the conspiracy. See id. (citing United States v. Shabani, 513 U.S. 10, 11
(1994)).
The jury may infer an agreement constituting a conspiracy “from the acts of
the parties and other circumstantial evidence indicating concert of action for the
accomplishment of a common purpose.” Id. Furthermore, “the jury may presume
that a defendant is a knowing participant in the conspiracy when he acts in
furtherance of the objective of the conspiracy.” Id. (citations and internal
quotation marks omitted). The defendant’s participation in or connection to the
conspiracy need only be slight, so long as sufficient evidence exists to establish
the defendant’s participation beyond a reasonable doubt. See United States v.
Bowie, 892 F.2d 1494, 1497 (10th Cir. 1990). There is no question that Jarvis
-5- was engaged in a conspiracy to sell marijuana. The only question is whether
Johnston knowingly and intentionally entered into that conspiracy when he told
Kyles and verified to Alex and Ramone that Jarvis had been arrested.
The defendant testified at trial that he thought Jarvis was no longer
involved in the drug business, and that he only agreed to tell the false story to
help Jarvis complete his withdrawal from the conspiracy and save Jarvis’s life.
There is ample evidence, however, that would allow a reasonable juror to find
beyond a reasonable doubt that the defendant’s contention that he intended to help
Jarvis withdraw was untrue, and that Johnston really intended to help Jarvis
continue his drug business. At trial, Jarvis testified about a meeting between him
and Johnston in which Jarvis explained to Johnston why he wanted Johnston to
participate in the scheme:
Q. Okay, and what did you talk about with respect to Alex and Ramone at your meeting [with Johnston] the next day? A. I told Robert [Johnston] that Kirby and John and Glen owed me some money. They wouldn’t pay me. [Alex and Ramone] pulled a gun on me. They were going to kill me. And then I come up with the scheme that I wanted to get arrested or let them think that I got arrested to where they would leave me alone until I could get Kirby and John and Glen to pay me.
Trial Tr. at 42. In this meeting, Jarvis informed Johnston that Johnston’s lie
would give Jarvis more time to collect the money that his customers (i.e., Kirby,
John, and Glen) owed him. This is a clear indication to Johnston that Jarvis was
not out of the drug business. The jury could believe beyond a reasonable doubt
-6- that Jarvis was telling the truth about this meeting. The jury could also believe
beyond a reasonable doubt that Johnston was lying when he testified that he
thought Jarvis was out of the drug business.
In addition, there is evidence in the form of testimony from Jarvis and
Kirby Kyles that Jarvis paid Johnston $2,000 for his participation in perpetrating
this scheme. Johnston contends that this payment was for past legal services
rendered, but a jury could reasonably believe otherwise. The payment is clear
evidence that Johnston had a financial stake in the drug conspiracy.
There is also evidence from which a jury could reasonably conclude that
Johnston manufactured his testimony about his belief that Jarvis was out of the
drug business. In a wiretapped conversation between Johnston and Jarvis,
Johnston told Jarvis that he had just met with Alex and Ramone and verified the
lie to them. In that conversation, Johnston and Jarvis display an astonishing
degree of glibness in talking about their scheme, particularly in light of the fact
that the pair’s alleged purpose in perpetrating the lie was to save Jarvis’s life:
JARVIS: Hello JOHNSTON: ---- damn, I tell you what, that little Mexican was jumping around my office like somebody stuck a cigarette up his ---- . (laugh) They do look funny when they turn white (laugh) oh ----. JARVIS: I told them [the police] mentioned their names and wooh. JOHNSTON: Yep. Yep. JARVIS: Boy they . . . JOHNSTON: (laugh)
-7- JARVIS: I was sittin’ there watchin’ that son of a ---- change colors . . . ---- damn. ROBERT: Well, I . . . I think your concerns were unfounded. JARVIS: Okay (laugh). ROBERT: I get that impression. They’re going to take a little vacation.
Appellant’s br. at 19. From the cavalier manner in which Johnston conducted
himself in this conversation, the jury would have been justified in disbelieving
Johnston’s story.
In sum, the jury was faced with the following scene. At the request of a
client whom Johnston knew to be a drug dealer, Johnston agreed to lie to two
other drug dealers in order to deter them from trying to collect a drug debt. Jarvis
incurred that drug debt because Alex and Ramone fronted him money; he could
not pay because his customers had not yet paid him. Jarvis needed a way to delay
or inhibit the collection of that drug debt, and so he enlisted Johnston’s help. A
reasonable juror could conclude beyond a reasonable doubt that Johnston knew
that (1) Alex and Ramone had fronted Jarvis drugs, which Jarvis had in turn
fronted to other drug dealers; (2) Jarvis could not pay Alex and Ramone for all of
the fronted drugs because Jarvis’s customers had not yet sold all of it; (3) his lie
would cause Alex and Ramone to cease contact, at least temporarily, with Jarvis;
(4) because Alex and Ramone would cease contact with Jarvis, Jarvis’s customers
would have more time to sell the remainder of the fronted drugs and Jarvis would
have more time to collect the remainder of the money due on those drugs; and (5)
-8- Jarvis actually intended to continue collecting the money on the fronted drugs.
Indeed, this is exactly what occurred. Jarvis never had to repay the debt because
Alex and Ramone disappeared. Johnston’s lie allowed Jarvis and his customers to
keep the profits generated by the subsequent marijuana sales. The evidence was
sufficient to establish that Johnston knowingly and intentionally entered into a
conspiracy to distribute marijuana.
The defendant also contends that the government failed to prove its case
because it did not prove that he conspired with all of the co-conspirators named in
the indictment. “A variance arises when the evidence adduced at trial establishes
facts different from those alleged in an indictment.” United States v. Ailsworth , -
-- F.3d ---, 1998 WL 101788 at *4 (10th Cir. 1998) (citations and internal
quotation marks omitted). A variance constitutes reversible error only if it affects
a defendant’s substantial rights. See id. In this case, however, there is no
variance. The indictment charged that “Alfredo Vega, Emmanuel Reyes, Victor
Rodriguez, and Robert Johnston did knowingly and intentionally combine,
conspire, confederate and agree together with each other and with others both
known and unknown to the Grand Jury to knowingly and intentionally distribute,
and possess with intent to distribute, marijuana . . . .” Thus, the government was
not required to prove that Johnston conspired with any or all of the named co-
defendants, so long as it at least proved that he conspired “with others” for the
-9- purpose alleged. As already discussed, the evidence was sufficient to show that
Johnston conspired with Jarvis to facilitate the distribution of marijuana.
B. Section 843(b) Charges
The defendant also contends that the evidence was insufficient as a matter
of law to prove the intent element of each of the three use-of-telephone charges
brought under 21 U.S.C. § 843(b). To obtain a conviction under section 843(b),
the government must prove that the defendant (1) knowingly or intentionally (2)
used a telephone or other communications facility (3) to “commit, cause or
facilitate” the commission of a drug felony. United States v. Milton, 62 F.3d
1292, 1294-95 (10th Cir. 1995).
Johnston agreed to lie on Jarvis’s behalf on October 27, 1995 in a meeting
with Jarvis at Johnston’s office. The three Jarvis-Johnston phone conversations
underlying the section 843(b) convictions occurred on October 30 and 31, 1995.
In the first intercepted conversation, Johnston confirmed that he had told Kyles
that Jarvis had been arrested. Johnston said, “[T]hat seed got planted . . . this
morning,” to which Jarvis responded, “Yeah, Kirby called me.” Appellant’s Br.
at 14. In the second conversation, Johnston confirmed to Jarvis that Alex and
Ramone were planning to visit Johnston’s office soon thereafter to verify the
arrest story. See id. at 17-18. In the third, Johnston called Jarvis immediately
after Alex and Ramone had left Johnston’s office to tell Jarvis that he had verified
- 10 - the false story to them. Johnston said, “I get that impression they’re going to take
a little vacation.” Id. at 19.
It is clear that all three of these conversations relate to Johnston’s
dissemination of the false story, and the defendant does not contest this
conclusion. Rather, he argues that he did not have the requisite intent to commit,
cause, or facilitate a drug felony when he had these conversations. However, we
have already concluded that there was sufficient evidence to establish that
Johnston intentionally involved himself in the conspiracy to distribute marijuana
when he agreed to disseminate the false story. It follows naturally that Johnston
intended to facilitate the conspiracy in the three telephone conversations in which
he discussed the false story with Jarvis. Thus, a reasonable jury could conclude
beyond a reasonable doubt that, in these three separate instances, Johnston
intentionally used a telephone to facilitate the commission of a drug felony.
II. Jury Instructions
The defendant asserts that the district court erred by failing to give the jury
two proposed instructions. “We review the instructions de novo to determine
whether, as a whole, they adequately apprised the jury of the issues and the
governing law,” though we have also said that we review a court’s refusal to give
a particular instruction for an abuse of discretion. United States v. Wolny, 133
F.3d 758, 765 (10th Cir. 1998). “Little turns, however, on whether we label
- 11 - review of this particular question abuse of discretion or de novo, for an abuse of
discretion standard does not mean a mistake of law is beyond appellate correction.
. . . The abuse of discretion standard includes review to determine that the
discretion was not guided by erroneous legal conclusions.” Koon v. United
States, 518 U.S. 81, 100, 116 S. Ct. 2035, 2047-48 (1996). A trial court does not
err so long as the instructions that it gives fairly state the governing law and
provide the jury with an understanding of the issues and applicable standards.
See United States v. DeSoto, 950 F.2d 626, 631 (10th Cir. 1991).
The first refused instruction that the defendant proposed stated, “The
testimony of a perjurer should always be considered with caution and weighed
with great care.” R.O.A. doc. 78. The defendant contends that the district court
should have given this instruction because another witness contradicted certain
testimony of Kyles during the trial, and also because Kyles’s testimony at trial
contradicted some of his own testimony previously given before the grand jury.
Therefore, the defendant argues, the district court should have specifically
cautioned the jury regarding the weight to give Kyles’s testimony. In refusing the
instruction, the district court said,
The Court feels like the instruction labeled “The Credibility of Witnesses and Impeachment” fully covers the law as it relates to the jury’s determination of credibility of each witness and the inconsistent statements made by a witness. And the Court feels that the use of the term perjurer in the instruction itself could . . . have a legal connotation to the jury that the Court has made the
- 12 - determination for it, and that is not the fact.
Trial Tr. at 204-05. We agree. Any concerns that the defendant had regarding the
weight the jury would give the testimony of any witness were more than
satisfactorily addressed by Instructions 11 and 12. Instruction 11 stated:
You are the sole judges of the credibility or “believability” of each witness and the weight to be given to his testimony. In weighing the testimony of a witness you should consider the witness’ relationship to the United States or the defendant and his interest, if any, in the outcome of the case; manner of testifying; criminal record . . . ; candor, fairness and intelligence; and the extent to which he or she has been supported or contradicted by other credible evidence. You may, in short, accept or reject the testimony of any witness in whole or in part.
R.O.A. doc. 86. Similarly, Instruction 12 informed the jury that “a witness may
be discredited or impeached by contradictory evidence; or by evidence that at
other times the witness has made statements which are inconsistent with the
witness’s present testimony.” Id. The district court did not err in refusing the
perjurer instruction.
The second refused instruction that the defendant asserts the district court
should have given is a theory of the defense instruction. A district court must
give a theory of defense instruction only if the court’s instructions were erroneous
or inadequate without it. See Wolny, 133 F.3d at 765. The defendant’s proposed
theory of the defense instruction stated,
The Defendant, Robert L. Johnston, has pleaded “Not guilty” to the charges contained in the indictment. This plea of not guilty
- 13 - puts in issue each of the essential elements of the offense described in these instructions and imposes on the government the burden of establishing each of these elements by proof beyond a reasonable doubt. Defendant . . . contends that he is not guilty of the crimes charged because the government has failed to prove that the defendant and any other person arrived at any form of agreement to distribute marijuana. An attorney at law does not join a criminal conspiracy by virtue of receiving the confidences of any of its participants of past crimes, nor by assisting any such member of a conspiracy in terminating his or her role in the conspiracy.
R.O.A. doc. 78. In refusing the instruction, the district court stated that the
instruction contained arguments, which the defense could address in closing,
rather than only statements of the law. Further, the court noted that its other
instructions to the jury fully covered all of the issues presented in the instruction.
Again, we agree.
Instruction Number 6, “Plea and Presumption of Innocence,” stated that the
defendant pleaded not guilty to each count and that, therefore, the government
had the burden of proving its case beyond a reasonable doubt. These were the
points raised in the first paragraph of the proposed instruction. The second
paragraph of the proposed instruction merely states why the defendant believes he
is not guilty and that the government did not prove its case. Such a statement is
argument and is inappropriate for jury instructions.
The issues raised in the third paragraph of the proposed instruction were
satisfactorily covered by Instructions 19, 20, and 21. Instruction 19 defined
- 14 - conspiracy. Instruction 20 detailed what the evidence must show before a jury
can find that a defendant was part of a conspiracy. In particular, the last
paragraph of Instruction 20 stated, “Merely associating with others and discussing
common goals, mere similarity of conduct between or among such persons,
merely being present at the place where a crime takes place or is discussed, or
even knowing about criminal conduct does not, of itself, make someone a member
of the conspiracy or a conspirator.” Instruction 21 detailed the type of agreement
that must occur for a conspiracy to exist. The third paragraph of the proposed
instruction adds little to the quoted language from Instruction 20 and the court’s
other instructions. The jury had the full panoply of law regarding when a
conspiracy exists and when it does not. The court’s refusal of the theory of the
defense instruction did not preclude the jury from considering the defense’s
theory.
III. Motion to Suppress Intercepted Telephone Conversations
Under the federal wiretap statute, “[a]ny aggrieved person in any trial . . .
before any court . . . of the United States . . . may move to suppress the contents
of any wire or oral communication intercepted pursuant to this chapter, or
evidence derived therefrom, on the grounds that . . . the interception was not
made in conformity with the order of authorization or approval.” 18 U.S.C.
§ 2518(10)(a). Johnston has standing as an “aggrieved person” under the statute
- 15 - because he was a party to the intercepted wire communications at issue. Id.
§ 2510(11). He moved to suppress the intercepted conversations between himself
and Jarvis on the basis that the government failed to minimize the interception of
privileged attorney-client communications, as required by the Oklahoma state
court order authorizing DEA agents to tap Jarvis’s phone lines. The district court
denied his motion. Johnston appeals that denial.
In reviewing a district court’s refusal to suppress wiretap evidence, “we
accept the district court’s factual findings unless clearly erroneous, review
questions of law de novo, and view the evidence in the light most favorable to the
prevailing party.” United States v. Castillo-Garcia, 117 F.3d 1179, 1186 (10th
Cir.), cert. denied, 118 S. Ct. 395 (1997). The Oklahoma state court order that
authorized the wiretap of Jarvis’s phone apparently was issued under Oklahoma’s
wiretap statute, O KLA . S TAT . A NN . tit. 13, § 176.1 et seq. (West 1994). The
procedures set forth in the Oklahoma statute are virtually identical to those
prescribed by the federal wiretap statute. Compare O KLA . S TAT . A NN . tit. 13,
§ 176.9 with 18 U.S.C. § 2518; see United States v. Edwards, 69 F.3d 419, 429
(10th Cir. 1995), cert. denied, 116 S. Ct. 2497 (1996). Accordingly, we apply
federal law in reviewing the admissibility of the intercepted conversations. See
United States v. Quintana, 70 F.3d 1167, 1169 (10th Cir. 1995).
The record on appeal does not include a copy of the wiretap order. The
- 16 - defendant, however, quoted the pertinent provision from it in his brief in support
of his motion to suppress, and we assume here that he did so accurately. The
order stated that “all wire communications intercepted will be minimized in
accordance” with federal and state law, including the minimization of privileged
communications. R.O.A. doc. 50, at 4. The defendant asserts that the
government violated this order by failing “to do any minimization with regard to
Mr. Johnston’s conversations with his clients,” Appellant’s Br. at 46, and
therefore the district court should have suppressed those conversations in
accordance with 18 U.S.C. § 2518(10)(a)(iii). This argument raises two issues:
first, whether the conversations were privileged at all; and second, if they were
privileged, whether the government failed to adequately minimize their
interception. The district court concluded that the conversations were not
privileged because Johnston presented no evidence at the suppression hearing
“establishing an attorney-client relationship existing between Johnston and Jarvis
at the time of the intercepted calls.” United States v. Johnston, No. CR-96-115-L,
slip op. at 3 (W.D. Okla. Nov. 8, 1996). Thus, the district court did not reach the
second question regarding minimization.
In arguing to uphold the district court’s decision to admit the intercepted
conversations, the government argues that Johnston cannot assert the attorney-
client privilege either on behalf of Jarvis or on his own behalf. The government
- 17 - correctly points out that the client alone holds the attorney-client privilege, see
Chirac v. Reinicker, 11 Wheat 280, 24 U.S. 280, 293 (1826);1 J OHN W. S TRONG
ET AL , M C C ORMICK ON E VIDENCE § 92 (Practitioner Ser., 4th ed. 1992) , that an
attorney cannot assert it for his own benefit (though he may assert it for a client),
and that the client cannot assert it once he has waived it, see M C C ORMICK § 93.
The government mischaracterizes the role the attorney-client privilege plays here,
however. Johnston does not attempt to suppress evidence as privileged attorney-
client communications. Rather, he argues that the conversations should be
excluded because they were taped in violation of the wiretap order. The attorney-
client privilege comes into play because the order specified that the executing
officers should minimize the interception of privileged communications. The
defendant’s ability to pursue a motion to suppress under section 2518 is not
impeded by his lack of standing to directly assert the attorney-client privilege.
The issue before us, then, is whether the district court properly found that
no attorney-client relationship existed between Johnston and Jarvis at the time of
the wiretaps, for if no such relationship existed, the conversations were not
privileged, and the government was under no obligation to minimize interception
of the calls. Our review of the record reveals exactly what it revealed to the
district court. No attorney-client relationship existed between Johnston and Jarvis
at the time of the wiretaps.
- 18 - The defendant argued that the intercepted conversations were privileged
attorney-client communications simply because they involved an attorney.
However, “the mere fact that an attorney was involved in a communication does
not automatically render the communication subject to the attorney-client
privilege.” Motley v. Marathon Oil Co. , 71 F.3d 1547, 1550-51 (10th Cir. 1995),
cert. denied , 517 U.S. 1190 (1996). In order to be covered by the attorney-client
privilege, a communication between a lawyer and client must relate to legal
advice or strategy sought by the client. See id. ; In the Matter of Grand Jury
Subpoena , 697 F.2d 277, 278 (10th Cir. 1983); see also M C C ORMICK § 88
(privilege covers communications where client seeks “professional legal advice”) .
The defendant does not point us to, nor could the district court uncover, any
credible evidence in the record that demonstrates that the conversations related to
legal advice or strategy sought by Jarvis.
Johnston also argues that conversations he had with Jarvis regarding
representation of certain of Jarvis’s relatives were privileged. In those cases,
however, the “clients” are Jarvis’s relatives, not Jarvis, even if Jarvis paid for the
legal representation. See 3 J ACK B. W EINSTEIN & M ARGARET A. B ERGER ,
W EINSTEIN ’ S F EDERAL E VIDENCE § 503.11[2] (2d ed. 1998) (noting that for
purposes of the attorney-client privilege, the “client” is “the actual recipient of
the services”).
- 19 - We also find no merit in the defendant’s argument that the conversations
were privileged because, rather than demonstrating that he was participating in a
drug conspiracy, they show that he was actually providing legal advice to Jarvis
regarding how to withdraw from a conspiracy. The district court rejected the
argument in denying the motion to suppress, and the jury subsequently rejected it
as well when it returned a guilty verdict against the defendant. “The
attorney-client privilege does not apply where the client consults an attorney to
further a crime or fraud.” In re Grand Jury Proceedings, 857 F.2d 710, 712 (10th
Cir. 1988) (citing Clark v. United States, 289 U.S. 1 (1933)). The district court
did not err in concluding that no attorney-client relationship existed between
Johnston and Jarvis at the time of the wiretaps, and it properly denied the
defendant’s motion to suppress.
IV. Sentencing
The defendant raises two specific challenges to his sentence. First, he
asserts that the district court improperly sentenced him to one year in prison for
attempt to possess the steroid decadurobolin, the count to which he pleaded guilty
prior to trial. Defendant’s brief raises this argument in a single sentence and
without citing any support. Moreover, he did not raise this issue below, so our
review is only for plain error. See United States v. Gilkey, 118 F.3d 702, 704
(10th Cir. 1997) (noting that while failure to raise issue below normally precludes
- 20 - appellate review, narrow exception exists for legal questions involving
application of the sentencing guidelines). Under the plain error standard, “the
error must be particularly egregious, as well as obvious and substantial.” Id.
(citations and internal quotation marks omitted). We find no error here.
Because Johnston was convicted of more than one drug count, the district
court properly grouped all of the defendant’s offenses together for purposes of
determining his total punishment. See U.S. S ENTENCING G UIDELINES M ANUAL
§§ 3D1.1 - 3D1.4, 3D1.5 (1995). Under section 3D1.4, the combined offense
level determines the length of a defendant’s total sentence. In this case, that
combined offense level corresponded to a total punishment of 26 months. Under
section 5G1.2(b), for each count on which a defendant is convicted, he receives a
sentence equal to that total punishment, with each sentence running concurrently.
In this case, however, the resulting 26 month sentence for the steroid possession
count was higher than the one-year statutory maximum sentence for steroid
possession. Accordingly, section 5G1.1(a), through operation of section
5G1.2(b), requires that the statutory maximum be the sentence on that particular
count. Therefore, the district court properly calculated the one-year sentence on
the steroid conviction.
Second, the defendant argues that the district court improperly based his
sentence on a quantity of marijuana that was not reasonably foreseeable. A
- 21 - defendant who is convicted of participating in a drug conspiracy is accountable
“for that drug quantity which was within the scope of the agreement and
reasonably foreseeable to her.” United States v. Arias-Santos, 39 F.3d 1070, 1078
(10th Cir. 1994). “The sentencing judge’s assessment of the drug quantity
attributable to a convicted conspirator is a fact finding determined by a
preponderance of the evidence which we review for clear error.” Id. In
computing the defendant’s base offense level under the guidelines, the district
court held the defendant accountable for 61.8 pounds of marijuana of the total
200 pounds that Alex and Ramone fronted to Jarvis. See United States v.
Johnston, No. CR-96-115-L, Order at 3 (W.D. Okla. Apr. 24, 1997). The court
arrived at this amount under the following rationale:
At the time Jarvis contacted defendant, Jarvis indicated that the amount he still owed Alex and Ramone was $34,000.00 out of an original debt of $110,000.00 [for 200 pounds of marijuana]. The court finds that, prior to October of 1995, there is no evidence that defendant was aware of the specific amount of marijuana involved in the conspiracy. . . . However, the court finds the defendant did have knowledge that at least $34,000.00 worth of marijuana was involved. Dividing the original debt of $110,000.00 by 200 pounds of marijuana, the court reaches a per pound price of $550.00. Dividing $34,000.00, the amount known to defendant, by the per pound price of $550.00, the court reaches an amount of 61.8 pounds.
Id. The district court’s analysis was exceedingly rational. The court did not err
in attributing 61.8 pounds of marijuana to the defendant.
AFFIRMED.
- 22 -