United States v. Spears

197 F.3d 465, 2000 Colo. J. C.A.R. 6649, 1999 U.S. App. LEXIS 30461, 1999 WL 1063825
CourtCourt of Appeals for the Tenth Circuit
DecidedNovember 23, 1999
Docket98-5226, 98-5230
StatusPublished
Cited by14 cases

This text of 197 F.3d 465 (United States v. Spears) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Spears, 197 F.3d 465, 2000 Colo. J. C.A.R. 6649, 1999 U.S. App. LEXIS 30461, 1999 WL 1063825 (10th Cir. 1999).

Opinions

BALDOCK, Circuit Judge.

Defendants Elda Louise Spears and Linda Lee Chambers each pled guilty to one count of conspiracy in violation of 18 U.S.C. § 371. At their respective sentencing hearings, the district court found that each Defendant was an “organizer or leader” of the conspiracy under U.S.S.G. § 3Bl.l(a) and increased their base offense levels by four points. Defendants filed separate appeals, which we consolidated. On appeal, Spears argues that the district court did not make adequate findings to support the organizer/leader sentencing enhancement. Chambers argues that the district court did not have enough evidence before it to find that she was an organizer or leader. Additionally, Chambers argues that the district court violated her right to be present at a presentence hearing in Spears’s case. We exercise jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We remand Spears’s sentence to the district court with instructions to make more specific fact findings and affirm Chambers’s sentence.

I.

The record indicates that Spears and Chambers were members of a conspiracy to steal checks, credit cards, and identifications from mailboxes. Teams of two or more conspirators drove around rural neighborhoods looking for mailboxes that could not be seen from a house. Upon finding a suitable mailbox, the driver pulled over; the co-conspirator riding shotgun opened the mailbox and collected the checks, credit cards, and identification. A conspirator then forged the necessary endorsements and signatures on the checks and credit cards. Next, another team cashed the cheeks at a bank or used the checks or credit cards at a motel or restaurant. ■ Finally, the conspirators divided the proceeds.

The record does not specify who originated the idea of stealing mail. At sentencing, Defendant Spears testified about the night before the conspirators began stealing mail: “Well, really we’re just all sitting around. I really don’t know who came up with it.” Spears said it was not her idea: “Well, I’m saying I know I didn’t come up with the idea.” She suggested that perhaps the plan started with co-conspirator Deborah Atkins, who on prior occasions had tried to pass stolen checks. Spears later admitted, however, that Atkins had less responsibility in the conspiracy than Spears or Chambers.

The record is also unclear about who was responsible for the day-to-day decisions of the conspirators. Michael Duroy, a co-conspirator and Defendant Chambers’s common law husband, testified at a presentence evidentiary hearing that “Linda [Chambers] and Elda [Spears] were pretty much figuring out everything to do.” Duroy saw Spears and Chambers stealing and cashing checks, but never saw the other members of the conspiracy do so. By contrast, Spears’s testimony suggests that she and Chambers had no special decision making authority about when to steal mail. “We’d just be sitting around and decide to go do it.” Defendants’ pre-sentence reports refer to a notebook that listed which checks they cashed and where; Spears, however, testified that no such list existed.

Visiting the mailboxes was a group activity. The conspirators used several vehicles: Spears’s car, Chambers’s car, co-defendant Deborah Atkins’ car, and “a lady named Sherry’s truck.” Spears testi-[468]*468fled, “Sometimes I drove, sometimes Linda [Chambers] drove and one time Debbie [Atkins] drove.” When someone else was driving, Spears took the mail out of the mailboxes. The driver generally decided which mailboxes to search, but the other riders in the car suggested where to turn and when to stop.

Many of the conspirators participated in cashing the checks. All of the conspirators except Defendant Spears (because of her poor handwriting) played a role in forging signatures on checks and credit cards. Spears testified that the conspirators jointly decided where to cash the checks. The conspirators went in groups to banks’ drive-in windows to cash the checks. Duroy testified that he rode in the car with Chambers when she cashed stolen checks at drive-in windows.

The record suggests that Spears and Chambers sometimes distributed stolen mail to other conspirators. Spears provided Chambers with stolen checks for her and Duroy to cash. Spears provided Chambers with a stolen driver’s license for the purpose of cashing stolen checks; also, Spears and Chambers together bought a fake ID for cashing checks. Chambers also provided Duroy with stolen checks.

The record contains conflicting accounts of how the conspirators divided the proceeds. Spears testified that at the beginning of the conspiracy, she, Chambers, and Atkins split the proceeds in thirds; at that time, Duroy was probably taking part of Chambers’s share. Also, Spears testified that after Atkins left the conspiracy, Spears, Chambers, and Duroy each took a third. Duroy testified that Spears and Chambers took equal half shares of the money, and Chambers would share some of her proceeds with Duroy. In her testimony, Spears denied the statement in the presentenee report that Spears gave Chambers checks to cash in exchange for half of the proceeds. Sometimes one member-most likely Spears or Atkins-would take a larger share and buy drugs for the group, although Spears testified that she never sold drugs. Spears testified that she could not recall the total amount of the proceeds or the size of her share.

Initially, Spears’s and Chambers’s pre-sentence reports did not contain the sentencing enhancement. The district court, however, was reluctant to sentence either Defendants or their co-conspirators until it had determined the nature of their leadership roles. The record shows that the district court held a presentence hearing, at which time Spears called co-defendant Duroy to testify on her behalf. Although the evidence brought out on cross-examination was damaging to both Spears and Chambers, it appears from the record that Chambers was not present at the presen-tence hearing. After Duroy testified, the probation officer revised Defendants’ pre-sentence reports to conclude that the Defendants were “organizer[s] or leaderfs]” under U.S.S.G. § 3Bl.l(a). Spears and Chambers objected to their respective reports, arguing that the evidence did not show that they were organizers or leaders; Chambers also argued that she had a right to be present at the presentence hearing. At their respective sentencing hearings, each Defendant presented evidence to rebut the presentence reports’ conclusions. Notwithstanding that evidence, the district court found that Defendants were organizers or leaders of the conspiracy and imposed a four-point enhancement in the offense level.

II.

Spears argues that the district court did not make adequate findings to support the organizer/leader sentencing enhancement. “[W]e ... review the district court’s determination that a defendant was an organizer or leader of a criminal activity involving five or more persons for clear error.” United States v. Cruz Camacho, 137 F.3d 1220, 1223-24 (10th Cir.1998). The government must prove by a preponderance of the evidence facts establishing that a defendant was an organiz[469]*469er or leader for purposes of the sentencing enhancement. See Cruz Camacho, 137 F.3d at 1224.

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Bluebook (online)
197 F.3d 465, 2000 Colo. J. C.A.R. 6649, 1999 U.S. App. LEXIS 30461, 1999 WL 1063825, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-spears-ca10-1999.