F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS APR 25 1997 TENTH CIRCUIT PATRICK FISHER Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 96-3089 v. (D.C. No. 95-10009-07) (District of Kansas) IRVING PARKER,
Defendant - Appellant.
ORDER AND JUDGMENT*
Before BALDOCK, KELLY and LUCERO, Circuit Judges.
Defendant Irving Parker appeals his conviction and sentence for conspiracy
to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. He contends that the
district court erred by: (1) denying his motion for a writ of habeas corpus ad testificandum
directed to his alleged co-conspirator Thelma Wingist; (2) denying his motion for a
continuance; (3) denying his motion for acquittal based on insufficiency of the evidence;
(4) calculating his base offense level at 38; (5) determining that he had not accepted
responsibility for his participation in the conspiracy; (6) deciding that he was a minor
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. participant in the conspiracy; and (7) denying him a reduced sentence under an “aberrant
behavior” theory.
I
On January 21, 1995, a Toyota Previa minivan was stopped in Kansas. The police
discovered 111 kilograms of cocaine in a hidden compartment beneath the floor of the
van. An electronic organizer belonging to Imelda Gonzalez, a passenger in the van, was
also found. It contained defendant Parker’s telephone number. The title to the van listed
a mailbox address rented by the defendant. Two days later, a similar minivan was
stopped in Tennessee, and was found to contain 102 kilograms of cocaine in a similar
compartment.
At trial, the defendant admitted that on at least six or seven occasions over a two
year period he drove Previa vans containing concealed compartments from Los Angeles
to New York. He testified that he did this at the request of a friend, Thelma Wingist, and
that she paid him a total of around $30-40,000 for making these trips. According to the
defendant, he never saw the vans being loaded or unloaded, and Wingist told him the
compartments contained “money and securities.” Defendant claims he believed this
explanation until making one trip in early December 1995, during which he smelt a strong
formaldehyde-like odor emanating from the van and became suspicious that he might be
transporting drugs. Defendant claims to have filed tax returns stating the income he made
from his van trips for Ms. Wingist; however, a representative of the Internal Revenue
2 Service testified that no tax returns for the relevant period were received from the
defendant.
Ms. Gonzalez testified that Ms. Wingist hired her to drive vans from Los Angeles
to New York and back, and indicated that she made around ten trips. Subsequently, at
Wingist’s request, she managed driving schedules for vans driven by other drivers. Ms.
Gonzalez testified that although she was never told what was being transported in the
vans, she suspected it was drugs. Trip schedules maintained by Ms. Gonzalez indicated
that she arranged two van trips made by the defendant.
II
Ms. Wingist was originally to be tried with the defendant. Shortly before trial,
however, the district court granted Ms. Wingist severance for medical reasons.
Defendant then filed a petition for a writ of habeas corpus ad testificandum directed to
Ms. Wingist, in order to secure her testimony at trial. Defendant contends that the district
court’s denial of that writ violated his Sixth Amendment right to offer the testimony of a
witness.
To establish such a violation, a defendant must “make some plausible showing of
how [the potential witness’s] testimony would have been both material and favorable to
his defense.” United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982). We review
a district court’s denial of a writ of habeas corpus ad testificandum for abuse of
discretion. Brady v. United States, 433 F.2d 924, 925 (10th Cir. 1970). The district court
3 denied defendant the writ for two reasons: first, that there was no indication that Ms.
Wingist’s testimony would assist the defendant; second, that there was no indication that
Ms. Wingist, an alleged co-conspirator, was willing to waive her Fifth Amendment right
against self-incrimination. We conclude that the first of these reasons is sufficient to
show that the district court’s denial of the writ was not abusive, and consequently do not
address the merits of the second reason.
Attached to defendant’s writ was an affidavit from Richard J. Diaz, Ms. Wingist’s
attorney, stating that “Thelma Wingist, cannot confirm that her co-defendant, Irving
Parker, ever knowingly participated in any drug conspiracy.” I R. doc. 201, at 9. The
affidavit also stated that, were she called, Ms. Wingist would testify in a manner
consistent with this statement. Defendant claims that Ms. Wingist’s testimony would
therefore bolster his contention that he never knowingly participated in a conspiracy to
distribute drugs. Thus her testimony would have been both material and favorable, and
the writ should have been granted. We disagree. Defendant must do more than produce
an attorney’s affidavit stating that a potential defense witness “cannot confirm” the
prosecution’s allegations. We have no statement from Ms. Wingist herself, nor any
substantive indication that her testimony would be anything other than neutral. The
possibility that Ms. Wingist’s testimony could be both material and favorable is simply
too speculative for us to find that the district court abused its discretion in denying
defendant’s writ.
4 III
In the alternative to a writ of habeas corpus ad testificandum, defendant brought a
motion for continuance to enable him to procure Ms. Wingist’s testimony. He now
appeals the district court’s denial of that motion. We review the district court’s decision
for abuse of discretion, and “do not reverse unless we conclude that the denial was
arbitrary or unreasonable and materially prejudiced the appellant.” United States v. West,
828 F.2d 1468, 1469 (10th Cir. 1987).
Although this court examines various factors in determining whether the denial of
a continuance is an abuse of discretion, “by far the most important . . . is the defendant’s
need for a continuance and the prejudice resulting from its denial.” Id. at 1471.
Defendant has not shown more than the merest speculation of prejudice. Mr. Diaz’s
affidavit does not indicate that Ms. Wingist’s testimony would have proven exculpatory.
In fact, it states only that she could not have confirmed defendant’s knowing participation
in the conspiracy. The district court was well within the bounds of its discretion in
concluding so neutral a statement does not provide sufficient grounds for a continuance.
IV
Defendant also appeals the district court’s denial of his motion for a judgment of
acquittal for insufficiency of the evidence. A motion for such judgment is properly
denied if any rational trier of fact could have found the essential elements of the offense
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). We review
5 the denial of this motion de novo, United States v. Chavez-Palacios, 30 F.3d 1290, 1294
(10th Cir. 1994), viewing “the direct and circumstantial evidence, along with reasonable
inferences therefrom . . . in a light most favorable to the government,” United States v.
Mains, 33 F.3d 1222, 1227 (10th Cir. 1994). “Although this standard of review is
deferential, we may not uphold a conviction obtained by piling inference upon inference.”
United States v. Hanson, 41 F.3d 580, 582 (10th Cir. 1994) (quotations omitted).
Under this deferential standard of review, we cannot grant a judgment of acquittal.
There are four essential elements to conspiracy: first, agreement with another person to
violate the law; second, knowledge of the essential objectives of the conspiracy; third,
knowing and voluntary involvement; and fourth, interdependence among the alleged
conspirators. See United States v. Nieto, 60 F.3d 1464, 1469 (10th Cir. 1995) (citing
United States v. Johnson, 12 F.3d 1540, 1545 (10th Cir. 1993)). In conspiracy cases, “[a]
defendant’s guilty knowledge and voluntary participation may be inferred from
surrounding circumstances.” United States v. Christian, 786 F.2d 203, 211 (10th Cir.
1986); see also United States v. Pack, 773 F.2d 261, 265-66 (10th Cir. 1985) (“[A]
common purpose or agreement to accomplish an unlawful objective may be inferred from
a development and collocation of circumstances.”); United States v. Troutman, 814 F.2d
1428, 1446-47 (10th Cir. 1987) (“Conspiracy cases may be proven exclusively by
circumstantial evidence.”).
6 There is no shortage of circumstantial evidence in this case indicating the
defendant’s knowing involvement in illegal activity. He knew the vans had hidden
compartments. He admitted he was paid roughly $35,000 for driving the vans across the
country a few times; indeed, the final few times he was paid $9,000 per trip. On some
occasions he was paid in cash in shopping bags. An IRS official testified that Parker did
not declare this income on his tax returns despite his protestations to the contrary.
In addition, the record contains circumstantial evidence that would allow a rational
jury to find beyond a reasonable doubt that Parker knew the essential objective of the
conspiracy to be the distribution of controlled substances.1 When asked whether he had
any familiarity “with patterns in drug trafficking or activities employed by drug
traffickers,” Parker at the outset of his testimony answered “yes and no” and explained
1 Although the indictment charged Parker with conspiracy to distribute cocaine, and he was convicted of that same offense, the charge was brought pursuant to 21 U.S.C. § 841(a)(1), which states only that “it shall be unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense . . . a controlled substance.” (Emphasis added). We review for sufficiency of the evidence under this statutory standard regardless of whether a defendant was convicted of a drug-specific violation of § 841(a)(1). See United States v. Johnson, 57 F.3d 968, 971-72 (10th Cir. 1995); see also United States v. Cheung, 836 F.2d 729, 731(1st Cir. 1988) (to prove violation of § 841(a)(1), government need not prove defendant knew exact substance with which he was dealing; it is sufficient that defendant was aware that he was dealing with some controlled substance); United States v. Gonzalez, 700 F.2d 196, 200 (5th Cir. 1983) (same); United States v. Morales, 577 F.2d 769, 775-76 (2d. Cir. 1978) (same); United States v. Jewell, 532 F.2d 697, 698 (9th Cir. 1976) (same); cf. United States v. Harris, 959 F.2d 246, 259 (D.C. Cir. 1991) (approving rule identified in cases above); United States v. Herrero, 893 F.2d 1512, 1534-35 (7th Cir. 1990) (conviction in drug conspiracy case only requires knowledge that co-conspirator dealt with a controlled substance, not knowledge pertaining to specifically-identified narcotic).
7 that he had worked with Miami customs in devising an over-the-air decoder to decode the
paging traffic of suspected drug smugglers. IV R. at 747. Although Parker testified that
he thought he was transporting money and securities in secret, the jury could legitimately
infer that the explanation was a ruse to allay suspicion of narcotics trafficking. According
to Ms. Gonzalez, Parker told her that “in case Lisa [Parker’s secretary] started
questioning him being absent from his office when he was making the trips, he was gonna
say something about transporting . . . money from California.”2 II R. at 293. By Parker’s
own admission, he became suspicious that he was involved in a drug conspiracy in part
because of a formaldehyde-like chemical odor permeating through the van during what he
alleges was his final trip. Thus, Parker conceded not merely that he smelled this odor, but
Ms. Gonzalez’s precise testimony was as follows: 2
Q: He told you what? A: Okay. I never asked him, but he told me that he was gonna, just—I do not remember his exact words, but he said that he was, in case Lisa started questioning him being absent from his office when he was making the trips, he was gonna say something about transporting or, I don’t know what word he used, money from California to, I don’t know if he said New York either, I don’t know. I don’t remember the exact words. But that was what he was gonna tell her. Q: That’s what he was gonna tell who? A: Lisa. Q: Now, did he tell you that that’s what he believed he was doing? A: No. Q: But that was the story he was gonna give to Lisa his secretary? A: Yes.
II R. at 293-94.
8 that he knew that chemical odors of that type could be used as masking agents to conceal
quantities of controlled substances. As a consequence, the jury could legitimately infer
that he in fact knew the narcotics focus of the conspiracy, at least with respect to what he
alleges was his final trip. Moreover, because Parker’s connection with the conspiracy
clearly lasted beyond the time from which this latter inference may legitimately be made,
his knowing involvement with the conspiracy is established by sufficient evidence.
V
Defendant argues that his base offense level should not have been calculated at 38
because there was no showing that the requisite 150 kilograms of cocaine were
attributable to him. We review the district court’s determination of drug quantities for
clear error, United States v. Browning, 61 F.3d 752, 754 (10th Cir. 1995), cognizant that
for sentencing purposes the government has the burden of proving drug quantities by a
preponderance. United States v. Wacker, 72 F.3d 1453, 1477 (10th Cir. 1995). Under
this standard of review, defendant’s claim is without merit.
Two of the vans that were stopped each contained over 100 kilos of cocaine. The
district court therefore possessed the necessary indicia of reliability for its estimate that
approximately 100 kilos were transported on each trip. See Browning, 61 F.3d at 754.
Because defendant admitted to at least six trips, it was not clear error to attribute at least
150 kilos to him—even accepting, for the sake of argument, his contention that some of
the trips may have been “dry runs.”
9 Defendant claims that the jury may have convicted him solely on the basis of his
final trip. Although that may be true, his earlier trips count as “relevant conduct” for
sentencing purposes if a preponderance of the evidence indicates that the conspiracy
extended to such trips. See USSG § 1B1.3; United States v. Gomez-Arrellano, 5 F.3d
464, 466 (10th Cir. 1993). The district court so held. We see no basis to disturb that
finding as clearly erroneous. Reviewing the entire record, we agree with the district
court’s conclusion that “it would be inconsistent with the evidence for the court to find
that the only time that Mr. Parker took cocaine from California to the east coast was on
this particular occasion.” IV R. at 1092.
VI
We review for clear error the district court’s denial of a sentencing level reduction
for acceptance of responsibility. United States v. Portillo-Valenzuela, 20 F.3d 393, 394
(10th Cir. 1994). The defendant must establish his acceptance of responsibility by a
preponderance of the evidence. Id. The district’s court’s decision that he did not do so is
entitled to “great deference.” United States v. Gacnik, 50 F.3d 848, 853 (10th Cir. 1995);
see also USSG § 3E1.1, comment. (n. 5) (“[S]entencing judge is in a unique position to
evaluate the defendant’s acceptance of responsibility,” and accordingly that determination
“is entitled to great deference.”).
Although it is not necessary to plead guilty in order to qualify for a sentence
reduction for acceptance of responsibility pursuant to USSG § 3E1.1, a defendant who
10 puts the government to the burden of trial will rarely qualify for the reduction. Portillo-
Valenzuela, 20 F.3d at 394; see also USSG § 3E1.1, comment. (n. 2). For instance, a
defendant who goes to trial to preserve an issue that does not relate to “factual guilt,”
such as a constitutional challenge to the application of a statute, may still claim to have
accepted responsibility. See USSG § 3E1.1, comment. (n.2). Mr. Parker does not fall
into this narrow exception as he refused at trial to admit to a critical factual element of the
offense—knowing involvement.
That the defendant admitted to some—if not most—factual elements of guilt does
not entitle him to a sentence reduction for acceptance of responsibility. In Portillo-
Valenzuela, the defendant confessed pre-trial, but subsequently insisted on pleading not
guilty. 20 F.3d at 394. Although the defendant in that case argued that his confession
meant the government’s burden had been reduced to a “mere formality,” the Portillo-
Valenzuela court was unimpressed: “Pleading not guilty and requiring the government to
prove guilt at trial demonstrate denial of responsibility, regardless of how easily the
government can prove guilt.” Id. at 394-95.
Nor is the defendant entitled to an acceptance of responsibility reduction because
of his pre-trial assistance to the government. See USSG § 3E1.1, comment. (n. 6). The
district court correctly found that Parker was not eligible for acceptance of responsibility
on this basis because the information he provided was, in critical respects, determined to
be untruthful. See Gacnik, 50 F.3d at 853 (defendant who pleads not guilty and is “far
11 from truthful in admitting conduct comprising the offense” has not shown acceptance of
responsibility). Credibility determinations of this type are well within the province of the
district court. See USSG § 3E1.1, comment. (n. 5); Willner v. University of Kansas, 848
F.2d 1023, 1030 (10th Cir. 1988).3
VII
Defendant challenges the district court’s decision that he was a “minor participant”
in the conspiracy. A district court’s determination of whether a defendant was a “minor”
or “minimal” participant in an offense is reviewed for clear error. United States v.
Lockhart, 37 F.3d 1451, 1455 (10th Cir. 1994). A defendant is required to establish that
he was a minimal or minor participant by a preponderance of the evidence. United States
v. Occhipinti, 998 F.2d 791, 802 (10th Cir. 1993). The district court held that Parker was
a minor, but not a minimal participant. Thus he was entitled only to a two-level
reduction. Were he only a minimal participant, he would have obtained a four-level
reduction; if his participation were between minor and minimal, a three-level reduction.
See USSG § 3B1.2.
The four-level reduction for minimal participation is to be used infrequently.
United States v. Santistevan, 39 F.3d 250, 254 (10th Cir. 1994); USSG § 3B1.2,
comment. (n. 2). The example cited in the application notes to the guideline provision
Because the defendant did not establish his acceptance of responsibility under § 3
3E1.1(a), he is per se ineligible for an additional one-point reduction under § 3E1.1(b). See Portillo-Valenzuela, 20 F.3d at 395.
12 make clear that the defendant is not a minimal participant. See § 3B1.2, comment. (n. 2)
(minimal participant is, for instance, “someone who played no other role in a very large
drug smuggling operation than to off-load part of a single marihuana shipment, or . . .
where an individual was recruited as a courier for a single smuggling transaction
involving a small amount of drugs.”). Thus, defendant’s claim for minimal participant
status essentially repeats his claim that he may only have been convicted on the basis of
his final trip. As noted previously, that may be true, but it is nonetheless irrelevant for
sentencing purposes. It was not clear error for the district court to determine that a
preponderance of the evidence showed that defendant made more than one drug
shipment, and that his participation could not therefore be minimal.
Alternatively, defendant claims he is entitled to a three-level reduction because his
conduct falls between minimal and minor participation. We cannot agree. This court has
affirmed denials of minor participant status on facts attesting to less involvement than
present here. See, e.g., United States v. Montoya, 24 F.3d 1248, 1249 (10th Cir. 1994)
(not error to hold that involvement in more than a single drug transaction placed
defendant beyond scope of § 3B1.2); United States v. Ballard, 16 F.3d 1110, 1115 (10th
Cir. 1994) (not error to hold that drug courier was not minor participant).
VIII
Finally, defendant argues that the district court should have departed downward
from the guidelines because his criminal conduct amounted to “aberrant behavior.” See
13 United States v. Tsosie, 14 F.3d 1438 (10th Cir. 1994). The defendant is correct in
claiming that aberrational behavior can constitute a mitigating circumstance not
adequately taken into account by the guidelines, and can therefore justify a departure from
the guidelines. See 18 U.S.C. § 3553(b); Tsosie, 14 F.3d at 1441-42 (upholding district
court determination that defendant’s lack of prior convictions, economic support of his
family, and long-term employment history justified departure under rubric of “aberrant
behavior”).
The defendant contends that his lack of criminal history and record of employment
indicate that his criminal conduct was sufficiently aberrational to justify a departure from
the sentencing guidelines under Tsosie.4 The district court did not deny the requested
departure in its discretion. Instead, the court held that it lacked discretion to depart
downward because the factors defendant cited are taken into consideration by the
sentencing guidelines in setting a defendant’s criminal history.
We do not address the merits of this decision because the district court also ruled
that the factors cited by defendant were not mitigating. Thus, even if not fully addressed
by the guidelines, these factors would not justify a departure under Tsosie or other
“aberrational behavior” cases. Defendant has given us no persuasive reason to regard the
4 By implication, defendant adds economic support for his family and community reputation for honesty as additional factors justifying a departure. With regard to these factors, however, there is no indication that the district court was unaware “of its discretionary power to depart downward [and we therefore] lack jurisdiction to review its refusal to do so.” United States v. McKneely, 69 F.3d 1067, 1079 (10th Cir. 1995).
14 district court’s decision that such factors were not mitigating in his case as clearly
erroneous. See United States v. Haggerty, 4 F.3d 901, 903 (10th Cir. 1993)
(determination whether factors not adequately addressed by sentencing guidelines are
mitigating is factual); 18 U.S.C. § 3742(e) (West Supp. 1996) (factual determinations
relevant to sentencing reviewed for clear error). Consequently, we will not disturb the
district court’s denial of a reduction for aberrational behavior.
IX
None of defendant’s challenges to his conviction or sentence are meritorious. The
district court acted within its discretion in denying his writ of habeas corpus ad
testificandum and his motion for continuance. Judgment of acquittal for insufficiency of
the evidence was properly denied. The district court did not err in calculating defendant’s
base offense level, nor in refusing sentence reductions for acceptance of responsibility,
minimal participant status, or aberrational behavior. AFFIRMED.
ENTERED FOR THE COURT
Carlos F. Lucero Circuit Judge