United States v. Williams

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUL 17 1998 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-7041 (D.C. No. CV-96-24-S) EDDIE LEE WILLIAMS, (E.D. Okla.)

Defendant-Appellant.

ORDER AND JUDGMENT *

Before BRORBY, BARRETT, and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The 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. Defendant-Appellant Eddie Lee Williams appeals from the district court’s

order denying his motion to vacate, correct or set aside his sentence pursuant to

28 U.S.C. § 2255. Appellant was convicted of use of a communication facility to

facilitate a drug felony, cocaine conspiracy and distribution, money laundering,

employing a person under eighteen years of age to distribute cocaine, and

engaging in a continuing criminal enterprise (CCE). On direct appeal, we vacated

the conspiracy conviction. See United States v. Williams, No. 91-7094, 1993 WL

125403, at **1 n.2, **2 (10th Cir. Apr. 19, 1993). Finding no error in the issues

he now presents, we affirm the district court’s order denying § 2255 relief. 1

Appellant’s challenges are based on ineffective assistance of trial and

appellate counsel. In order to establish ineffective assistance of counsel, a

movant must show both that his counsel’s performance was deficient, and that the

deficient performance prejudiced him. See Lasiter v. Thomas, 89 F.3d 699, 703

(10th Cir. 1996). To meet the “prejudice” element, he must show that “but for

this ineffective assistance the result would have been different.” Id.

1 Appellant has requested that we issue him a certificate of appealability (COA). Because appellant filed his habeas petition in January 1996, before the April 24, 1996 enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), AEDPA’s COA requirements do not apply to this appeal. See United States v. Kunzman, 125 F.3d 1363, 1364 n.2 (10th Cir. 1997), 118 S. Ct 1375 (1998). Appellant does not need a COA to proceed.

-2- 1. Challenges relating to CCE conviction.

Appellant asserts two challenges relating to his CCE conviction pursuant to

21 U.S.C. § 848. First, he argues his trial counsel was ineffective for failing to

object to the lack of a jury unanimity instruction. Second, he argues that his

appellate counsel was ineffective for failing to argue the insufficiency of evidence

to support the conviction.

To convict a defendant on a CCE charge, the government must prove:

(1) a felony violation of a drug law contained in the Controlled Substance Act, 21 U.S.C. §§ 801 et seq. (1988); (2) constituting part of a continuing series of such violations; (3) undertaken in concert with five or more other persons; (4) with respect to whom [the defendant] occupies a position of organizer, supervisor, or any other position of management; and (5) from which [the defendant] obtains substantial income or resources.

United States v. Jenkins, 904 F.2d 549, 553 (10th Cir. 1990).

Appellant argues his trial counsel should have requested an instruction

requiring the jury to agree unanimously on the “five or more persons” whom he

supervised. Appellant concedes the CCE statute does not require such an

instruction. See, e.g., United States v. Rockelman, 49 F.3d 418, 421 (8th Cir.

1995) (citing cases from various circuits holding that jury unanimity instruction

not required). He argues, however that this case falls within the exception stated

in United States v. Jerome, 942 F.2d 1328, 1330-31 (9th Cir. 1991).

-3- Jerome holds that where the prosecution presents to the jury as possible

supervisees persons who, as a matter of law, could not have been organized or

supervised by the defendant, a unanimity instruction is required. See United

States v. LeMaux, 994 F.2d 684, 688 (9th Cir. 1993) (noting limitations of Jerome

holding). We have not adopted the Jerome exception in this circuit. See United

States v. O’Brien, 131 F.3d 1428, 1432 (10th Cir. 1997). So long as the district

court gave a general unanimity instruction, and there is not a realistic possibility

of jury confusion concerning the acts which support a defendant’s conviction,

we assume that the jury understood it must be unanimous on the specifications

underlying its verdict. See id.

Appellant argues that the jury could have been confused by being presented

with two potential supervisees who he could not possibly have supervised:

Sandra Spencer and Victor Wren. He argues that Sandra Spencer could not have

been his supervisee because she was a government informant. Cf., e.g., United

States v. Desimone, 119 F.3d 217, 223 (2d Cir. 1997) (confidential informant

cannot be coconspirator for purposes of conspiracy charge). Assuming

appellant’s argument removes Ms. Spencer from consideration as a supervisee,

it does not thereby demonstrate an undue risk of jury confusion. The prosecution

did not argue in favor of Ms. Spencer’s being considered as a supervisee. See

-4- Supp. R. Vol. V at 4.1002-03, 4.1064. Appellant has failed to show sufficient

risk of jury confusion to warrant the issuance of a separate unanimity instruction.

Appellant also contends that the evidence shows, as a matter of law, that

Victor Wren could not have been one of his supervisees. We agree. See id.

Vol. IV at 3.720-737. The prosecution did not argue, however, that Mr. Wren

was a supervisee. See id. Vol. V at 4.1064. There was little danger that the jury

would be confused into making the kind of categorical mistake about him which

would warrant a separate unanimity instruction. We conclude that appellant’s

trial counsel was not constitutionally ineffective for failing to request a unanimity

instruction.

Appellant next argues that his appellate counsel was ineffective for failing

to argue that the evidence did not support the existence of five or more persons

whom he organized or supervised. We review de novo the question of sufficiency

of evidence to support a conviction. See United States v. Carter, 130 F.3d 1432,

1439 (10th Cir. 1997), cert. denied, 118 S. Ct. 1856 (1998). We will overturn a

conviction for insufficient evidence only if the evidence, viewed in the light most

favorable to the government, including all reasonable inferences to be drawn

therefrom, is such that no reasonable juror could have reached the disputed

verdict. See id.

-5- Leaving aside Ms. Spencer and Mr. Wren, and also excluding from

consideration two other co-defendants whom the jury acquitted, we are still left

with five persons who the jury could have found were “organized, supervised or

managed” by appellant: Sam Myles, Bennie Roberts, Dwight Booker, Dexter

Pickens, and Johnnie Pickens. Having reviewed the trial transcript, we conclude

that the prosecution presented sufficient evidence from which the jury could have

determined that each of these persons was appellant’s supervisee. We therefore

affirm appellant’s CCE conviction.

2. Challenge relating to money laundering conviction.

Appellant next contends that his counsel on direct appeal was ineffective

for failing to mount an effective challenge to his money laundering conviction.

Appellant’s counsel did challenge this conviction, on the basis that there was no

proof of intent to conceal the source of the laundered funds. See Williams, 1993

WL 125403, at **2. We determined that argument was an effective challenge

only to a conviction of money laundering under 18 U.S.C. § 1956(a)(1)(B)(i),

because that subsection requires a showing of intent to conceal. No such showing

is required under § 1956(a)(1)(A)(i), however. See id. Since the subsections are

disjunctive, we presumed the sufficiency of evidence for a conviction under

-6- subsection (A)(i). See id. Appellant now asserts that his counsel should also

have challenged his conviction under subsection (A)(i). 2

Appellant contends the government failed to establish that his cash

purchases were made “with the intent to promote the carrying on of specified

unlawful activity.” See 18 U.S.C. § 1956(a)(1)(A)(i). Appellant was charged

with laundering funds through his purchase of a 1987 Nissan pickup, a 1989

Hyundai, a red Mercedes, and the security bars on his home. Contrary to

appellant’s representations, there is abundant evidence that he sold drugs from the

Nissan and the Hyundai, from which the jury could have inferred an intent to use

them for unlawful activity. Although there is no evidence that he sold drugs from

the Mercedes, appellant did receive drug proceeds from a runner while driving it

on at least one occasion. See Supp. R. Vol. IV at 3.744. Thus, there was

evidence from which the jury could have concluded that the automobiles were

purchased to carry on unlawful activity.

Appellant further contends that since the jury acquitted him of dealing

drugs from his home, it would have been inconsistent for them to find that the

bars were purchased to defend his drug operation. Factual inconsistencies in

2 Appellant attempts to re-argue the sufficiency of evidence to convict under subsection (B)(i) of the statute. The argument is inappropriate: it is clear that his counsel did urge reversal under subsection (B)(i) in the previous appeal. We do not, therefore, consider his (B)(i) arguments.

-7- a jury’s verdict, without more, generally do not justify the reversal of a

defendant’s conviction. See United States v. Powell, 469 U.S. 57, 65-66 (1984).

The lenity appellant received on the count of distributing from his home should

not be taken as proof that there was insufficient evidence to convict him of

purchasing the bars to protect a drug operation. We conclude that appellant’s

counsel was not ineffective for failing to make the arguments he proposes about

the money laundering conviction.

3. Sentencing challenge relating to cocaine base enhancement.

Finally, appellant asserts his appellate counsel was ineffective in failing

to object to the drug type and quantity used to compute his offense level. The

district court calculated appellant’s base offense level at 38, finding that his

offense-related activities involved 494.6 grams of cocaine base (crack). The

494.6 gram figure was derived by totaling all cash deposits made by appellant and

his wife to their bank accounts, subtracting their legitimate income, then dividing

the remainder by an average cost per gram of cocaine base. See U.S.S.G.

§ 2D1.1, commentary application note 12 (Nov. 1990) (referring to application

note 2 of commentary pertaining to U.S.S.G. § 2D1.4 (No. 1990)) (permitting

court to approximate quantity of controlled substance based on financial records

where the amount seized does not reflect the scale of the offense). The average

-8- cost per gram figure was in turn derived from the price per gram appellant

received for specific sales attributed to him in the indictment.

Appellant argues that since there is evidence in the record that he sold

powder cocaine as well as cocaine base, his offense level should not have been

calculated solely on the basis of cocaine base sales. The district court found that

all the substances seized were cocaine base. A chemist testified at appellant’s

trial that all the cocaine she tested in connection with this case was cocaine base.

She explained that even though some of the cocaine base was in powdered form,

it was still cocaine base, because it did not contain the hydrochloride salt which

is present in “powder” cocaine. 3

Appellant argues, however, that the district court’s finding is inconsistent

with two of the counts of the indictment specifically charging him with selling

powder cocaine. Count 7 of the Indictment charged appellant with distributing

1.1 grams of powder cocaine. Count 11 of the Indictment charged him with

3 In 1993, the Sentencing Commission amended U.S.S.G. § 2D1.1(c) to clarify that “cocaine base” means “crack.” “Crack” is defined as “a form of cocaine base, usually prepared by processing cocaine hydrochloride and sodium bicarbonate, and usually appearing in a lumpy, rocklike form.” Id. (emphasis added). The cocaine base tested in this instance was not lumpy or rocklike; it was in a powdered form. Assuming the guideline amendment required the court to consider the powdery substance introduced at trial as something other than “cocaine base,” appellant cannot rely on the amendment, because it does not apply retroactively. See United States v. Kissick, 69 F.3d 1048, 1051-53 (10th Cir. 1995).

-9- distributing 490 milligrams of powder cocaine. In light of the wording of the

indictment, he argues, the jury must necessarily have found that the cocaine

involved in Counts 7 and 11 was powder cocaine rather than cocaine base.

Assuming appellant is correct, however, the amount in question in these

two counts is less than two grams. Attributing two grams of powder cocaine

rather than cocaine base to appellant would not have affected his offense level,

see U.S.S.G. §§ 2D1.1(c)(5) (equivalency table) (Nov. 1990), and therefore makes

no difference to his sentence, cf. Edwards v. United States, 118 S. Ct. 1475,

1477-78 (1998) (finding no reversible error where district court used cocaine base

to calculate sentence, even though defendant’s conduct could have involved

powder cocaine, where actual sentence was within statutory limits applicable to

a cocaine-only conspiracy).

Appellant attempts to bootstrap the jury’s implicit finding into a general

attack on the court’s findings about the type of cocaine he was selling. In view

of the chemist’s report that all of the substances introduced at trial, including

substances appellant sold as “powder,” were cocaine base, however, his challenge

fails. See United States v. Cantley, 130 F.3d 1371, 1379 (10th Cir. 1997)

(“[T]hough we recognize the burden is on the government to prove the substances

were crack cocaine, [defendant] has presented no evidence whatsoever to show

-10- that the substances were not crack cocaine.”), cert. denied, 118 S. Ct. 1098 (1998).

The judgment of the United States District Court for the Eastern District

of Oklahoma is AFFIRMED.

Entered for the Court

James E. Barrett Senior Circuit Judge

-11-