United States Court of Appeals,
Third Circuit.
UNITED STATES of America
v.
Terrence GIBBS a/k/a Terry a/k/a T Terrence Gibbs
United States of America
v.
Antjuan Sydnor
United States of America
v.
Earl Lamont Brown
190 F.3d 188
OPINION OF THE COURT
BECKER, Chief Judge.
This opinion addresses the appeals of Antjuan Sydnor, Earl Lamont
Brown, and Terrence Gibbs, who were convicted of conspiring to
distribute cocaine and to possess cocaine with the intent to distribute
in violation of 21 U.S.C. § 846. Sydnor's appeal requires us to
explore the scope of conspiracy liability for a defendant whose sole
involvement in a conspiracy consists of buying drugs from another
member of the conspiracy. Brown's appeal compels us to consider the
limits on a government agent's testimony about the meaning of coded
drug conversations. In Gibbs's appeal, we must determine whether the
introduction of evidence of a conspiracy's use of violence as part of
its modus operandi violates Fed.R.Evid. 404(b). In an attack on their
sentences, all three defendants ask us to examine whether the District
Court erred in attributing various amounts of crack and powder cocaine
to each of them, where those attributions were largely based on a
government agent's interpretation of coded drug conversations.
Under our existing caselaw, in order to prove a defendant's membership
in a conspiracy when that defendant has only been in a buyer-seller
relationship with a member of the conspiracy, the government must prove
both that the defendant purchased drugs from the conspiracy and that
the defendant knew that the individual from whom he purchased the drugs
was part of a larger drug operation. Since the government produced
sufficient evidence that Sydnor was more than a one-time buyer of drugs
from the conspiracy and that, in buying drugs from Gibbs, he was aware
of part of the scope of the conspiracy of which Gibbs was a leader, we
will affirm Sydnor's conviction under 21 U.S.C. § 846.
We further conclude that, in Brown's case, some of the testimony of the
government expert should have been excluded because, in interpreting
language that the jury needed no assistance in interpreting, that
testimony violated the dictates of Fed.R.Evid. 702. However, we reject
Brown's contention that the agent's testimony violated Rule 704(b), for
it merely translated the coded drug language, and did not opine on
Brown's intent. Because we are satisfied that there was sufficient
evidence of Brown's role as an enforcer for the conspiracy without the
improper testimony, and that the error in admitting the testimony was
harmless, we will affirm his conviction. We also conclude that the
evidence of violent acts by the conspiracy, the introduction of which
is now contested by Gibbs, did not violate Rule 404(b), because such
violence did not constitute an act separate from the conspiracy itself.
Hence his conviction too must be affirmed. On the sentencing issues, we
will affirm the sentences of all three defendants in their entirety. In
making this determination, we conclude that an enforcer for a drug
conspiracy may be held responsible for the amount of drugs transacted
by the conspiracy during the time he acts in that capacity
.
I. Background Facts Relevant to All Defendants
Sydnor, Gibbs, and Brown are three of sixteen codefendants who
were charged with conspiracy to possess and distribute cocaine in
violation of 21 U.S.C. § 846. The indictment charged that the
conspiracy ran from May 1992 until April 1995; Count 1 of the
indictment identified Darryl Coleman and Gibbs as the leaders of the
conspiracy and listed Sydnor and Brown (among others) as working for
the conspiracy by distributing cocaine and collecting drug
proceeds. Count 1 also averred that the members used coded and
cryptic language when discussing the cocaine business on the phone, and
that some members of the conspiracy, including Gibbs and Brown, used
and attempted to use acts of violence to further the conspiracy.
At trial, the government established that Coleman and Gibbs ran a drug
organization that obtained cocaine from various suppliers and resold
the cocaine in Philadelphia in both powder and crack form. Coleman and
Gibbs processed the cocaine into crack at different houses in
Philadelphia. After Coleman was arrested on state charges in April 1994
and subsequently imprisoned, Gibbs assumed primary responsibility for
the organization, which meant that he supervised and managed the
business, and recruited individuals to distribute cocaine and to
collect drug proceeds from that distribution.
In addition to oral testimony by former members of the alleged
enterprise, the government introduced a large number of tape-recorded
conversations between various codefendants, the recording of which was
authorized by a district judge. Five tapes contain conversations
between Gibbs and Sydnor. Four tapes, recorded over a three-week
period, contain discussions between Gibbs and Brown. At least thirteen
tapes contain conversations between Gibbs and Coleman. The government
also introduced conversations in which other defendants discussed
Brown's and Sydnor's roles in the conspiracy. However, much of the
language on the tapes was in code and is virtually incomprehensible to
the untrained ear. The government therefore called FBI Agent Jesse
Coleman to interpret the coded language. Agent Coleman has been a
narcotics investigator for eighteen years, and the District Court
qualified him as an expert in the analysis and interpretation of drug
conversations. None of the defendants challenged Agent Coleman's
qualifications as an expert in analyzing and interpreting the
intercepted conversations. The jury convicted each of the three
defendants of the conspiracy charge. We have jurisdiction to review
their appeals pursuant to 28 U.S.C. § 1291.
II. Antjuan Sydnor
A. Background
At trial, the government attempted to prove that Sydnor
processed powder cocaine into crack for distribution to others, and
that he worked as a distributor for the conspiracy. The government's
evidence in this regard consisted of five tape-recorded conversations
between Gibbs and Sydnor, as well as a conversation between Gibbs and
another confederate named Robert Saunders. The government also
introduced Agent Coleman's testimony in which he interpreted those
conversations. Finally, the government proffered a list of names and
numbers found in Gibbs's apartment. A confederate testified that Gibbs
often listed on pieces of paper names of people who owed Gibbs money.
Among the initials and names on the proffered list were the initials
"ANT," which, the confederate testified, referred to Antjuan Sydnor.
Sydnor's defense at trial was that the government proved only that
Sydnor had a buyer-seller relationship with Gibbs. The defense pointed
out that the government introduced no evidence proving that Sydnor
assisted the conspiracy in acquiring cocaine, processing cocaine into
crack, collecting or laundering cash proceeds, or maintaining stash
houses in which cocaine was stored. In addition, there was no evidence
that Gibbs ever paid Sydnor for drug-related activities or did anything
involving Sydnor other than sell him distribution quantities of drugs.
Therefore, the defense contended, there was no proof that Sydnor
knowingly and voluntarily joined the conspiracy.
In support of his theory, Sydnor introduced evidence at trial that
Gibbs had tried to have him killed because he believed Sydnor had tried
to rob him. Sydnor argued that this refuted the contention that he and
Gibbs were working together toward a common goal. The jury, which was
instructed that a buyer-seller relationship between two people cannot
by itself establish a conspiracy, rejected Sydnor's defense and
convicted him of the conspiracy charge.
The Presentence Investigation Report ("PSI") found that Sydnor could be
held responsible for a total of 1.8 kilograms of crack and two
kilograms of powder cocaine based on the intercepted conversations.
Sydnor objected to the PSI's conclusion, claiming that Agent Coleman's
interpretations of the phone conversations were inconsistent and
therefore unreliable. In addition, Sydnor argued that none of the drugs
sold to him were ever seized, observed, or subjected to chemical
analysis, though he admitted that he could be held responsible for two
kilograms of powder cocaine (in contrast to crack). The District Court,
rejecting his argument, found that Sydnor was involved with and
reasonably foresaw involvement with 1.5 kilograms of crack and two
kilograms of powder cocaine.
On appeal, Sydnor raises two issues. First, he submits that the
government failed to offer sufficient evidence to support the jury's
finding that he was guilty of conspiring to distribute cocaine and to
possess cocaine with the intent to distribute. When a defendant
challenges the sufficiency of the evidence supporting a verdict, we
must review the evidence in the light most favorable to the government.
See United States v. McGlory, 968 F.2d 309, 321 (3d Cir.1992). Sydnor
bears a heavy burden, for we must uphold his conviction if any rational
trier of fact could have found the essential elements of the offense
beyond a reasonable doubt. See id. at 321-22. Sydnor also contends that
the District Court erred in finding, in connection with his sentence,
that he was involved with at least 1.5 kilograms of crack and two
kilograms of powder cocaine. We review for clear error the District
Court's findings of fact regarding the relevant quantities of cocaine
and crack attributable to Sydnor, see United States v. Miele, 989 F.2d
659, 663 (3d Cir.1993), as well as the types of drugs at issue, see
United States v. Roman, 121 F.3d 136, 140 (3d Cir.1997), cert. denied,
522 U.S. 1061, 118 S.Ct. 722, 139 L.Ed.2d 662 (1998).
B. Viability of Sydnor's Conviction
1. Legal Principles
To prove a conspiracy, the government must establish a unity of
purpose between the alleged conspirators, an intent to achieve a common
goal, and an agreement to work together toward that goal. See
United States v. Robinson, 167 F.3d 824, 829 (3d Cir.1999). The
government may prove these elements entirely by circumstantial
evidence. See McGlory, 968 F.2d at 321 (citing United States v. Kapp,
781 F.2d 1008, 1010 (3d Cir.1986)). The existence of a conspiracy "can
be inferred from evidence of related facts and circumstances from which
it appears as a reasonable and logical inference, that the activities
of the participants ... could not have been carried on except as the
result of a preconceived scheme or common understanding." Kapp, 781
F.2d at 1010 (internal quotation omitted). The government need not
prove that each defendant knew all of the conspiracy's details, goals,
or other participants. See United States v. Theodoropoulos, 866 F.2d
587, 593 (3d Cir.1989), overruled on other grounds by United States v.
Price, 13 F.3d 711, 727 (3d Cir.1994). However, the government must
proffer sufficient evidence from which a jury could have concluded that
each drug transaction in which Sydnor was involved was "a step in
achieving the conspiracy's common goal of distributing cocaine for
profit." Theodoropoulos, 866 F.2d at 593.
It is well-settled that a simple buyer-seller relationship, without any
prior or contemporaneous understanding beyond the sales agreement
itself, is insufficient to establish that the buyer was a member of the
seller's conspiracy. See McGlory, 968 F.2d at 324-25; Kapp, 781 F.2d at
1010; see also United States v. Kozinski, 16 F.3d 795, 808 (7th
Cir.1994). As the Kozinski court explained: "[A] conspiracy requires an
agreement to commit some other crime beyond the crime constituted by
the agreement itself." Id. (internal quotation omitted). We have
endorsed that logic, concluding that if the only agreement is for the
seller to sell and the buyer to buy an amount of cocaine, no conspiracy
exists. See United States v. Price, 13 F.3d 711, 727 (3d Cir.1994)
(noting that this is true even if the buyer buys a "distribution
quantity" of drugs). This precept follows as a matter of common sense
as well as basic agency law.
However, we also reasoned in Price and Theodoropoulos that "even an
occasional supplier (and by implication an occasional buyer for
redistribution) can be shown to be a member of the conspiracy by
evidence, direct or inferential, of knowledge that she or he was part
of a larger operation." See Price, 13 F.3d at 728; Theodoropoulos, 866
F.2d at 594. Despite the misgivings of the opinion writer, which are
explicated in the margin, this precept is the law of the circuit, by
which this panel is bound. Often that knowledge is evidenced by the
defendant's agreement to process cocaine into crack, or collect or
launder drug proceeds. This case is made more difficult by the fact
that there is no evidence that Sydnor ever did anything to further the
conspiracy other than buy and sell drugs. In cases where the
defendant's only involvement in the conspiracy appears to be drug
purchases, courts have looked to the surrounding circumstances to
determine whether the defendant is a mere buyer who had such limited
dealings with the conspiracy that he cannot be held to be a
conspirator, or whether he has knowledge of the conspiracy to the
extent that his drug purchases are circumstantial evidence of his
intent to join that conspiracy.
Among the factors courts have considered in making that evaluation are:
the length of affiliation between the defendant and the conspiracy;
whether there is an established method of payment; the extent to which
transactions are standardized; and whether there is a demonstrated
level of mutual trust. See United States v. Hach, 162 F.3d 937, 943
(7th Cir.1998), cert. denied, 526 U.S. 1103, 119 S.Ct. 1586, 143
L.Ed.2d 680 (1999). While these factors are not necessarily dispositive
of the issue, their presence suggests that a defendant has full
knowledge of, if not a stake in, a conspiracy: when a defendant drug
buyer has repeated, familiar dealings with members of a conspiracy,
that buyer probably comprehends fully the nature of the group with whom
he is dealing, is more likely to depend heavily on the conspiracy as
the sole source of his drugs, and is more likely to perform
drug-related acts for conspiracy members in an effort to maintain his
connection to them.
Courts also have examined whether the buyer's transactions involved
large amounts of drugs. See United States v. Flores, 149 F.3d 1272,
1277 (10th Cir.1998), cert. denied, 525 U.S. 1092, 119 S.Ct. 849, 142
L.Ed.2d 703 (1999); Kozinski, 16 F.3d at 808. A large transaction or an
accumulation of deals suggests more trust, garnered over a period of
time, as well as a greater likelihood that the parties have "put their
heads together" to figure out planning, organization, and ways to
conceal their activities. Whether the buyer purchased his drugs on
credit may also be relevant. See Price, 13 F.3d at 728; United States
v. Dortch, 5 F.3d 1056, 1065-66 (7th Cir.1993); United States v.
Carbone, 798 F.2d 21, 27 (1st Cir.1986). A credit relationship may well
reflect the kind of trust that is referenced supra, and often evidences
the parties' mutual stake in each other's transactions. By extending
credit to a buyer, the seller risks the possibility that the buyer will
be unable to resell the drugs: even if the buyer does successfully
resell the drugs, in this generally thinly capitalized "business," the
seller will likely have to wait until the buyer collects the money from
his resale before he can pay the seller back for the initial purchase.
In addition, the buyer has a vested interest in the seller's ability to
maintain a good working relationship with his supplier, since the buyer
will not profit unless the drugs continue to flow from the seller's
supplier to the seller.
Though no one of these factors alone will necessarily be
sufficient--without more--to establish a mere buyer's agreement to join
the conspiracy and his intent to achieve a common goal with that
conspiracy, the presence of one or more of these factors furthers the
inference that the buyer knew that he was part of a larger operation
and hence can be held responsible as a co-conspirator.
2. Application to the Facts
The government contends that it has sufficiently proven that
Sydnor intended to join and in fact joined the Gibbs/Coleman
conspiracy, with its attendant goal of distributing cocaine and crack
for profit. We therefore examine closely the intercepted conversations
(which make up the bulk of the government's proof against Sydnor) with
an eye towards whether the conversations reflect Sydnor's interest or
stake in the success of the operation or whether they evidence a simple
buyer-seller relationship between Sydnor and Gibbs.
The first relevant telephone conversation occurred on November 28,
1994. During the conversation, Gibbs told Robert Saunders that Gibbs
"did something for Antjuan." Agent Coleman explained that "doing
something" meant making cocaine into crack. Gibbs continued, "It was
one funny looking jawn and I gave it to him. [It] ... came out to ...
eight seven five and nine the other one came out like eight ... twenty
three...." Agent Coleman interpreted this as Gibbs talking about
a kilogram of cocaine that had a funny color. Coleman also testified
that Gibbs was talking about two half-kilograms of cocaine, and that
the numbers referred to the weight of the half-kilograms (875 and 823
grams, respectively) after Gibbs had cooked them into crack. Because we
must construe all facts in favor of the government, and because Agent
Coleman has proffered a reasonable interpretation of the facts
discussed in Gibbs's conversation, this conversation indicates that
Sydnor purchased what was clearly a distribution quantity (1.7
kilograms) of crack from Gibbs.
On December 1, 1994, the government recorded a conversation between
Sydnor and Gibbs. They first discussed an incident that occurred during
a craps game outside the Elmwood Skating Rink. Sydnor thought someone
had cheated Gibbs, and he told Gibbs he had been about to beat that
person up. Sydnor, as if talking to the person about Gibbs, continued,
"That's my bread and butter. You leave that alone." Gibbs replied,
"Boy, I got a lot of bodyguards, you, Boo, Derrick." Talking about
himself, Gibbs said, "Here everybody that's the connect you can't fuck
with." Sydnor agreed with him. Gibbs then told Sydnor that he had left
the Rink and "was making like deliveries outside. I was telling like
everybody to meet me up there." Agent Coleman testified that "the
connect" meant "the drug supplier," that by "bread and butter" Sydnor
meant that Gibbs was the one who supplied him with cocaine, and that
Sydnor expressed that he did not want anything to happen to Gibbs.
Sydnor's statement that Gibbs was his "bread and butter" implies that
Sydnor purchased a significant amount of drugs from Gibbs, and his
assent to Gibbs's description of himself as a "connect" suggests that
he knew Gibbs sold drugs to people other than Sydnor. That Gibbs told
Sydnor he had been "making deliveries" furthers that inference. In
addition, Sydnor's representation to Gibbs that he was willing to
protect Gibbs as his drug connection manifests his agreement to work
together with Gibbs in the distribution of cocaine.
In the same conversation, they began to speak in more intricate code,
but they confused each other. Sydnor asked Gibbs what he usually "got
back" when he did "a whole log up." It later became clear that Sydnor
was asking Gibbs how much money Gibbs typically made from a kilogram of
powder cocaine after he cut it with baking soda, but at the time, Gibbs
thought Sydnor was asking how much crack Gibbs got from melting down a
kilogram of cocaine.
In an effort to explain to Gibbs what he was talking about, Sydnor
referenced another deal Gibbs had done. Once Gibbs figured out what
Sydnor was asking, he explained his confusion: "I'm thinking that you
telling me that you did your other one that I didn't do.... And you
lost on it and I'm ready to say what the fuck is wrong with you."
Sydnor indicated that he relied on Gibbs to melt down (or "cook")
cocaine into crack for him and that he would not "experiment" on his
own. Gibbs then laughed. In other words, testified Agent Coleman, Gibbs
thought Sydnor had cooked a kilogram of powder cocaine (the kilogram
that Gibbs had not cooked for Sydnor), and Sydnor explained that he
would have called on Gibbs to cook it for him if he had wanted it
cooked. Sydnor further explained that he had been selling "nicks,"
which Agent Coleman testified meant five dollar bags of cocaine or
crack.
This discussion evidences a familiarity and a working relationship
between Gibbs and Sydnor that goes beyond an arm's length buyer-seller
relationship. Sydnor solicited advice on the commercial aspects of
cocaine distribution, which Gibbs (after some initial confusion) was
able to provide. Sydnor admitted that he had done some stupid things,
but he repeatedly asked Gibbs to "give[him] some credit," thus trying
to assure Gibbs that he was a competent cocaine distributor who could
be relied on in future business transactions. While Gibbs's relative
lack of concern about Sydnor's mistake (as evidenced by the fact that
Gibbs laughed at the possibility that Sydnor lost money on a deal)
could be interpreted to mean that Gibbs had no stake in Sydnor's
success in reselling the drugs, we think that on balance this
conversation furthers the inference that Sydnor knew of the larger
conspiracy and intended to participate therein.
On December 8, 1994, Sydnor and Gibbs talked again. Sydnor told Gibbs,
"I got fifteen cents for you." Agent Coleman testified that Sydnor was
saying he had either $1,500 or $15,000 for Gibbs. A reasonable jury
could infer from the fact that Sydnor owed Gibbs money that Gibbs was
willing to sell drugs to Sydnor on credit.
The next conversation occurred on December 19, 1994. According to
Agent Coleman, Sydnor wanted to buy 4.5 ounces of powder cocaine from
Gibbs to resell to a customer. Gibbs informed Sydnor that he was unable
to process small amounts of powder cocaine into crack and so would not
cook the cocaine into crack for him, adding that when Sydnor cooked it
into crack he was not going to make much crack or much money, since it
would produce such a small rock. Sydnor then told Gibbs that once
he put some money together he needed to see Gibbs.
This conversation demonstrates that Sydnor resold his drugs to
customers, that he continued to seek out Gibbs for advice or assistance
(including cooking cocaine into crack for him), and that he wished to
continue his involvement with Gibbs as soon as he was able to put
together sufficient funds.
On January 20, 1995, Gibbs called Sydnor and asked him why he had been
paging him earlier. Sydnor told Gibbs that he had been waiting for him.
Gibbs's response (we give Agent Coleman's interpretation infra ) was as
follows:
I know, I wait on my man, I told
you I only had like a little bit what I had ... you know, that shit
come in I mean he give it to me like that I can feed you but otherwise,
I mean like if I get a little bit I be giving you two and shit, I
can't, I can't do nothing with it.
After Sydnor confirmed that Gibbs was not able to give him anything, Gibbs explained:
I don't have anything.... I get a
jawn, I fry the whole thing, you know what I mean, I be given one like
the Peanut, I get nine the fuck, that ah, Derrick and shit, so I'll get
my extras off it. That's all I be having, you know. That shit ain't
doing me no good, I get to give you like two jawns and shit.
Sydnor thereupon told Gibbs that anything was better than nothing and that Gibbs should call him "whenever."
Agent Coleman testified that "feed" meant "give cocaine to," that
Peanut and Derrick were cocaine customers, and that Gibbs was telling
Sydnor that Gibbs could make more money dealing with customers like
Derrick and Peanut because they bought smaller amounts of crack,
allowing Gibbs a greater markup. Sydnor purchased kilograms (also known
as "jawns"), which only gave Gibbs $500 or $1,000 profit margins. This
conversation illustrates that Sydnor bought drugs in larger quantities
than at least two of Gibbs's other customers. It also highlights that
Sydnor was aware that Gibbs supplied a number of buyers other than
Sydnor. In addition, Sydnor expressed a continuing and future interest
in purchasing cocaine from Gibbs.
The final recorded call between Gibbs and Sydnor took place on January
25, 1995. Sydnor asked Gibbs, "[W]hat was the numbers on that?" Gibbs:
"Uh one." Sydnor: "Huh?" Gibbs: "One." Sydnor: "Two one." Gibbs: "One
yeah." Coleman testified that "two one" referred to the price of
cocaine, which was $21,000 per kilogram. A jury could well have
inferred that Sydnor was either asking Gibbs what price Sydnor should
expect to get on the street for a kilogram of cocaine or was confirming
what he owed Gibbs from a kilogram he had just purchased from Gibbs.
Viewing all this evidence in the light most favorable to the
government, as we must, we believe that a reasonable jury could have
concluded beyond a reasonable doubt that Sydnor knew that he was
dealing with a larger drug operation when he purchased his drugs from
Gibbs. See United States v. Padilla, 982 F.2d 110, 114 (3d Cir.1992);
Theodoropoulos, 866 F.2d at 594. Not only did Gibbs tell Sydnor that he
preferred to sell to other buyers, but he also let Sydnor know that he
had to wait on his "man"--his supplier--before he received a new
shipment from which he could sell Sydnor drugs. Therefore, Sydnor knew
that Gibbs was working with people on either end of the drug chain. In
addition, Sydnor evidenced a familiarity with the dealings of Gibbs and
with the coded drug language. Sydnor's repeated purchases from Gibbs
advanced the conspiracy's goals, since it was only through distributors
like Sydnor that Gibbs was able to unload the cocaine he had received
from his supplier (and, in doing so, make his own profit). Finally,
there was evidence that Gibbs sold Sydnor drugs on credit. Under our
jurisprudence, described above, this evidence is sufficient to support
the conclusion that Sydnor intended to join the conspiracy and shared
the conspiracy's goal of distributing cocaine for profit. Therefore, we
will affirm Sydnor's conviction.
C. Propriety of Sydnor's Sentence
Sydnor argues that, if we uphold his conviction, the District
Court clearly erred at sentencing when it found that he was responsible
for in excess of 1.5 kilograms of crack. He concedes that he is
responsible for the two kilograms of powder cocaine that he and Gibbs
discussed on December 1, but powder cocaine is evaluated very
differently from crack under the Sentencing Guidelines. Sydnor objects
to both the District Court's quantity determination and its
determination that some of the drugs were crack. The heart of Sydnor's
argument is that the District Court erred in relying on Agent Coleman's
testimony as the sole basis on which to calculate the drug types and
quantities. He points out that the drugs were never seized or
chemically analyzed and, relying on United States v. Roman, 121 F.3d
136, 141 (3d Cir.1997), argues that the evidence that the processed
cocaine was crack was weaker than the "barely" sufficient evidence
found to establish crack in that case. We discuss the drug quantity and
drug type arguments separately.
1. Drug Quantity
A district court may rely on intercepted drug conversations to
estimate drug quantities. See United States v. Collado, 975 F.2d 985,
999 (3d Cir.1992) (relying on intercepted conversation about "one" to
attribute one-eighth of a kilogram of heroin to defendant); see also
United States v. 159 F.3d 1349, Ramirez, 1998 WL 514284, at *3 (2d
Cir.1998) (stating that use of wiretap conversation to determine drug
quantities is acceptable); United States v. Green, 40 F.3d 1167, 1175
(11th Cir.1994) (same). We have recognized that in calculating the
amount of drugs involved in a particular operation, a degree of
estimation is sometimes necessary. See United States v. Paulino, 996
F.2d 1541, 1545 (3d Cir.1993) (noting that the covert nature of the
drug trade precludes seizure and precise measurement of the drugs that
flow through a drug distribution conspiracy); see also U.S.S.G. §
2D1.1 application note 12 (stating that the quantity of drugs can be
estimated when no drug seizure occurs or the amount seized does not
reflect the scale of the offense).
We review factual findings, including drug quantity determinations, for
clear error, see United States v. Williams, 917 F.2d 112, 113 (3d
Cir.1990), and a preponderance of the evidence must support the
District Court's determination, see Miele, 989 F.2d at 663. The
evidence, which need not be admissible at trial, must possess
"sufficient indicia of reliability to support its probable accuracy."
Id. (internal quotation omitted).
The government argues that the November 28 conversation (in which Gibbs
told Saunders that he "did something" for Antjuan) reflected that Gibbs
had processed two half-kilograms of cocaine into crack for Sydnor; the
total amount of crack produced was 1,698 grams (1.7 kilograms) of
crack. The crack weighed more than the cocaine because Gibbs
added baking soda to the cocaine powder before cooking it. Based on
Agent Coleman's testimony that Gibbs was talking about cooking powder
cocaine into crack and that the numbers Gibbs mentioned to Saunders
represented the weight of the crack, it was not clearly erroneous for
the District Court to attribute 1.7 kilograms of drugs to Sydnor based
on this conversation. The Court attributed an additional kilogram of
cocaine to Sydnor based on the December 1 conversation. Although Sydnor
concedes that he is liable for two kilograms of powder cocaine based on
this conversation, the District Court erred on the side of caution in
attributing only one kilogram to Sydnor. Gibbs mentioned "your other
one that I didn't do"; the District Court acknowledged that the one
Gibbs "did" could be the same kilogram that Gibbs had cooked for Sydnor
in the November 28 conversation. It was not clearly erroneous for the
District Court to attribute one kilogram of powder to Sydnor based on
this conversation.
However, the District Court attributed another kilogram of powder to
Sydnor based solely on the January 25 call to Gibbs in which Sydnor
asked what "the numbers" on a kilogram of powder cocaine were. We must
determine whether a district court may make an estimate of drug
quantity based on a simple price quote, without more. Courts have
estimated drug quantities based on the amount of money the defendant is
carrying, see United States v. Hicks, 948 F.2d 877, 882 (4th Cir.1991);
the amount of "cutting agents" found on the defendant, see United
States v. Lucas, 164 F.3d 632, No. 97-30325, 1998 WL 708776, at *1 n. 1
(9th Cir. Oct. 6, 1998), cert. denied, 526 U.S. 1032, 119 S.Ct. 1283,
143 L.Ed.2d 375 (1999); testimony by a co-defendant about the weight of
drugs he and the defendant transported; and testimony about average
amounts sold per day multiplied by length of time sold, see United
States v. Maggard, 156 F.3d 843, 848 (8th Cir.1998), cert. denied, 526
U.S. 1058, 119 S.Ct. 1372, 143 L.Ed.2d 532 (1999). However, there
appear to be no instances in which drugs were credited to a defendant
based solely on a pricing conversation without further negotiations
confirming the sale.
The government cites two cases for the proposition that it need not
prove that amounts under negotiation were actually distributed. See
United States v. Layeni, 90 F.3d 514 (D.C.Cir.1996); United States v.
Williams, 994 F.2d 1287 (8th Cir.1993). However, in Layeni, the
district court noted that the amounts attributed to Layeni that were
not actually distributed by him only included: (i) amounts that he
offered to an undercover agent but that the agent did not purchase; and
(ii) amounts that the agent agreed to purchase and that Layeni promised
to produce but did not. See Layeni, 90 F.3d at 521. Likewise, in
Williams, the defendant actually negotiated a sale of cocaine: he
offered to obtain and sell the informant the quarter-pound of cocaine
that the agent requested, at a price he knew the agent could pay. See
Williams, 994 F.2d at 1293. No such negotiations were present in the
January 25 conversation.
We think it too speculative to conclude that the January 25 pricing
call meant that Sydnor had one kilogram in his possession and was ready
to resell it at the price designated by Gibbs; it is as viable--if not
more viable--to assume that Sydnor was simply obtaining price
information in general or checking to see how much he would have to pay
Gibbs to buy his next kilogram. Since, as Agent Coleman admitted, there
was no evidence that a kilogram ever changed hands after this
conversation, we conclude that the District Court clearly erred in
attributing a kilogram of cocaine to Sydnor based on this conversation.
However, because Sydnor's offense level was not affected by the
attribution to him of this additional kilogram of cocaine, this error
was harmless.
In sum, it was proper to attribute to Sydnor at least 1.5 kilograms of
crack and one kilogram of powder cocaine, and any error that occurred
in attributing another kilogram of powder cocaine to Sydnor was
harmless, as it had no effect on the length of Sydnor's sentence.
2. Drug Type
In addition to objecting to quantity, Sydnor contends that the
District Court erred in concluding, based on Agent Coleman's testimony,
that the 1.7 kilograms of cocaine discussed in the November 28
conversation were kilograms of crack, rather than powder cocaine or a
different cocaine base. The Sentencing Guidelines describe crack as
"the street name for a form of cocaine base, usually prepared by
processing cocaine hydrochloride and sodium bicarbonate and usually
appearing in a lumpy, rocklike form." U.S.S.G. § 2D1.1 note D. At
trial it became quite clear that all of the testifying defendants
believed that what Gibbs was making when he cooked the cocaine was
crack.
First, the government introduced the testimony of Collier and Ellis,
two witnesses to Gibbs's crack-making process. Ellis stated that Gibbs
put powder cocaine into a pot, put baking soda in it, put water in it,
and started cooking it. After it became liquid, Gibbs put ice into it,
pulled it out of the pot, broke it into pieces, and dried it. Collier
testified that Gibbs had performed the same process in his presence.
Second, Agent Coleman, whose qualifications have not been challenged,
described what those witnesses had seen as a common way to manufacture
crack. He stated, "One process they use when they make crack cocaine,
they put cocaine and baking soda in the water and they cook it until
the cocaine dissolves. Then they put ice in it to cool the mixture and
it becomes oily. They remove that, that's the crack cocaine ... and
they dry it." Sixteen years as an undercover narcotics agent renders
Coleman's testimony about this process reliable. Third, two witnesses
testified that Gibbs distributed both powder cocaine and crack. These
pieces of evidence make clear that crack was an integral part of
Gibbs's larger conspiracy.
The question, then, is whether the District Court clearly erred in
concluding that the 1.7 kilograms of cocaine that Gibbs told Saunders
he had given Sydnor was in crack form. Although it is a close question,
we conclude that the District Court did not clearly err, based on
Gibbs's consistent use of the expression "doing up" or "doing
something," which Coleman interpreted to mean cooking cocaine into
crack, and on Coleman's testimony that "doing something for Antjuan"
meant turning cocaine into crack and selling the resulting crack to
Sydnor.
Sydnor contends that Coleman misinterpreted the November 28
conversation: he claims that "doing something" does not necessarily
mean converting cocaine to crack. However, the December 1 conversation
supports the conclusion that Gibbs understood "doing up" cocaine to
mean cooking cocaine into crack. On December 1, Sydnor asked Gibbs how
much he "got back" when he "did a whole log up"; Gibbs interpreted this
to mean, "How much crack do you get when you cook a kilogram of
cocaine?" while Sydnor intended it to mean, "How much cocaine do you
get from a kilogram of powder after you mix in the baking soda?"
Therefore, when Gibbs heard the expression "done up" or some version
thereof, he interpreted it as cooking cocaine into crack. And when he
used the same expression in his conversation with Saunders, it is
likely that he meant that he cooked a kilogram of cocaine into crack
for Sydnor.
A few further points support the inference that what Sydnor had
received from Gibbs on November 28 was crack. It is clear that Sydnor
knew how to cut his own cocaine with baking soda; it appears that
Sydnor only asked Gibbs to prepare cocaine when Sydnor wanted the
cocaine cooked into crack. This is evidenced in the "4.5 ounce"
discussion on December 19, and in the exchange on December 1 about
letting Gibbs do Sydnor's "cooking" for him and about Sydnor's
reluctance to experiment. Sydnor repeatedly asked Gibbs to give him
"some credit" when Gibbs suggested that Sydnor had cooked for himself.
Sydnor appears to be telling Gibbs that he was not going to start
cooking drugs on his own. Therefore, when Gibbs discussed "doing
something" to the drugs he was selling Sydnor, it appears to have meant
cooking the powder into crack.
In addition, Agent Coleman testified about the numbers Gibbs spoke of in the November 28 conversation. Coleman stated:
Mr. Gibbs is describing to Mr.
Saunders, or telling Mr. Saunders that he cooked a kilogram of powder
cocaine into crack cocaine for Mr. Sydnor. And using the process that
they call whipping to increase the weight of the powder cocaine
temporarily as it turned to crack cocaine, he describes the weights
that he got for the two half kilograms of cocaine that he cooked. You
know, a half kilogram is 500 grams. He says that he got 900 on one half
kilogram ... and he says he got either 875 or 823 grams on the other
half kilogram of powder cocaine after he completed the cooking and
whipping process.
Based on the above evidence, we cannot conclude that the District Court
clearly erred in finding that the 1.7 kilograms discussed on November
28 was crack. Therefore, the District Court did not err in attributing
in excess of 1.5 kilograms of crack to Sydnor, as well as one kilogram
of powder cocaine, and we will affirm Sydnor's sentence.
III. Earl Lamont Brown
The critical issue in Brown's appeal is whether he was an
"enforcer" for the conspiracy, for that is the sole basis on which he
can be said to have participated in the Gibbs/Coleman operation. At
trial, Brown argued that the government had presented no evidence that
he was an enforcer for the conspiracy. Nevertheless, the jury convicted
Brown of the conspiracy charge. At the sentencing hearing, the defense
objected to the PSI's conclusion that Brown was responsible for
twenty-six kilograms of powder cocaine and 49.5 ounces of crack. The
District Court rejected these arguments, attributed to Brown all of the
drugs handled by the conspiracy during the time in which Brown was
involved in the conspiracy (for a total of twenty-seven kilograms of
powder cocaine and nine ounces of crack), and calculated an offense
level of 38. The Court thus sentenced Brown to 324 months in
prison and ordered him to forfeit $5,200 to the government. Brown
timely appealed his conviction and sentence.
On appeal, Brown presents a number of arguments why his conviction
should be overturned and why, in the alternative, he is entitled to
resentencing. With regard to his conviction, Brown argues that the
government at trial failed to offer any evidence that he joined the
larger conspiracy or that he took action to further the conspiracy's
ends. He also contends that the District Court erred in allowing Agent
Coleman to testify about ultimate issues of law, including Brown's
knowledge and intent, in violation of Fed.R.Evid. 704(b), and he
implicitly argues that Coleman's testimony violated Fed.R.Evid. 702 to
the extent that his explication of the meaning of certain conversations
was not helpful to the jury. As to sentencing, Brown submits that the
District Court erred in: (i) failing to appoint new counsel for him
because of his irreconcilable differences with his attorney; (ii)
calculating the amount of drugs attributable to him; (iii) increasing
his criminal history category based on a juvenile conviction; (iv)
adding two points to his offense level based on an earlier conviction
for possession of a weapon; and (v) failing to address his request that
he receive a downward adjustment to his offense level based on his
status as a minor participant in the conspiracy. We address the
validity of Brown's conviction, as well as sentencing issues (ii) and
(iv), below, after setting forth the relevant facts. We dispose of the
remaining issues in the margin.
A. The Recorded Conversations
The government's contention that Brown was associated with the
conspiracy was two-pronged: first, it claimed that he was an enforcer,
and second, it alleged that he purchased drugs from Gibbs. Because the
drug purchases, if any, were so minor, we focus on Brown's role as
enforcer. On February 14, 1995, Gibbs was shot during an apparent
robbery attempt; he came to suspect that the shooter had been either
Antjuan Sydnor or Belvin Brickel. The government alleged, based on the
recorded conversations and the testimony of Vincent Collier, that Gibbs
asked Frank Fluellen and Earl Brown to hurt or kill the person Gibbs
suspected had shot him. The heart of Brown's defense was essentially
one of mistaken identity: there was another person in the conspiracy
named Earl (Earl Packer Hunte), and Hunte was the true enforcer for the
conspiracy. Since the conversations provide the bulk of the
evidence against Brown, we discuss each relevant exchange.
The first recorded conversation arguably relating to Brown took place
on March 1, 1995, between Gibbs and Fluellen. Fluellen asked Gibbs
whether he paged "Earl" (without specifying which Earl) earlier that
day, and Gibbs said no. Gibbs then stated that he was going to call
Earl to "see if he can make any progress." Gibbs also told Fluellen
that Gibbs had not planned on calling Earl "till [Gibbs] got the jawn."
Fluellen ended the conversation by telling Gibbs that he would "be on
post." Agent Coleman interpreted this conversation as Fluellen asking
Gibbs about a car and telling Gibbs that he was "ready and waiting."
The first conversation in which Brown is recorded occurred the next
day. Gibbs called Brown and told him that he was waiting for Collier to
call him back, since Collier had been out the night before. Collier
later testified that Gibbs had asked him to steal a car for a person or
persons to use in their attempt to kill Sydnor or Brickel (an attempt
referred to as a "mission"). Gibbs told Brown that he hoped Collier
"did that." Brown told Gibbs, "Know what I mean, got to do it
tonight.... Before Friday." Gibbs responded, "Yeah, I hope so. That
shit getting on my nerves.... That [guy] be around and I'll be thinking
about that shit, more and more." Gibbs told Brown, "I'm almost sure he
got it. It should be somewhere sitting. So I'll just let you know where
it's at so y'all can pop it right there." Agent Coleman testified
that Brown and Gibbs were discussing whether Collier had stolen a car
for Brown to use on his attempt to hurt Sydnor, and that "got to do it
tonight" referred to that attempt.
A few minutes after Brown's conversation with Gibbs, Gibbs called
Collier. Gibbs asked Collier, "You get that?" to which Collier replied
that he had not, because his hand hurt. Collier told Gibbs that as soon
as it got dark that night he would go out and "grab anything [he] can."
Gibbs responded, "I need it kind of early, man, cause they be trying to
get on a mission." Agent Coleman testified that Collier was telling
Gibbs he was going to steal a car. Collier himself testified that
"going on a mission" meant going to hurt or kill someone, though the
people Gibbs was sending on the mission were not identified in this
conversation.
The next afternoon, March 3, at 2:02 p.m., the government intercepted
another conversation between Gibbs and Collier. Collier told Gibbs, "I
got this jawn sitting and shit." Gibbs announced, "I'm trying to get
this boy tonight, man." Collier recounted to Gibbs the story of how he
stole the car and told him where he had left it. Gibbs then said, "I
gotta tell E ... so they can move [it]."
Minutes later, at 2:15 p.m., Gibbs called Brown, telling him, "Vince
got that jawn." Brown informed Gibbs that he and someone else had gone
out the previous night but that the person (presumably the person they
were looking for) didn't "come back out." Gibbs said, "[T]onight will
be the night though," to which Brown responded, "I know." Gibbs
confirmed that he had a stolen car waiting for Brown when Brown wanted
it. Agent Coleman testified that "tonight will be the night" meant that
it "would be the night that [they] would be able to go through with the
mission that they ... talked about earlier." Agent Coleman further
testified that when Brown said that he had gone out the previous night
but that the person had not come back out, he believed that Brown was
referring to going out and attempting to kill Sydnor or Brickel but
that Sydnor or Brickel did not come back outside.
On March 17, the government recorded Gibbs speaking to Fluellen. The discussion went as follows:
Gibbs: I was um, telling T, you
know, when he getting ready to go inside that, that, club his pants be
down, you know what I mean.
Fluellen: That's, that's what we trying to find out now....
Gibbs: They pull his pants down to go in there cause they don't play that in there, you know.
Fluellen: That's what I, I tryin' to find out which jawn he go to.
Gibbs: Yeah.
. . . . .
Gibbs: Right here, before when you get out of there he gotta take it
and leave it in there with him in there, you know what I mean.
Fluellen: A huh.
Gibbs: It'll be in the wheel.
Fluellen: Ah huh.
Gibbs: I might you know that's like the perfect place and shit.
Fluellen: Yeah I know. Okay, that's what "E" was talkin' bout then.
Agent Coleman testified that Gibbs was telling Fluellen that the club
at 47th Street and Woodland Avenue had a metal detector so that guests
could not enter the club with a gun. (In this instance, "jawn" referred
to a nightclub.) Agent Coleman said that when people have "their pants
down," it means they are unarmed and that "in the wheel" meant "in the
car." Coleman further testified that he understood Gibbs and Fluellen
to be discussing a plan to allow their target to enter the club and
shoot him when he came out because he would not have a gun.
On March 24, in a call between Brown and Gibbs, Brown told Gibbs, in no
particular context, "I was on that last night plus we're gonna be on
that tonight." Gibbs responded that he wanted to talk to Brown about
"that" and that they could discuss it once they got together. Agent
Coleman testified that "on that last night" and "on that tonight"
referred to the mission Brown was on for Gibbs.
Three days later, on March 27, Gibbs spoke to Collier. Collier told
Gibbs that he had seen "Earl" the other day. Gibbs recounted, "Earl was
like he was on a mission the other night.... Ain't never turned nothing
out." Collier later testified that when he spoke about "Earl" he meant
Earl Brown. Gibbs and Collier then proceeded to discuss the advantages
of "getting" people in the daytime, since they would not be expecting
it. Gibbs ended by saying that he knew right where to catch "that
motherfucker ... with his pants down."
B. Brown's Conviction
Because Brown challenges his conviction, we first must decide
whether the government introduced enough evidence against Brown such
that a rational trier of fact could have found the essential elements
of the offense beyond a reasonable doubt. The heart of the government's
case against Brown lay in the inference that Brown contributed to the
conspiracy as an enforcer; the pieces of evidence supporting this
inference were the tape recorded conversations and Agent Coleman's
interpretations thereof, in addition to Collier's testimony.
On appeal, Brown challenges the sufficiency of the government's
evidence by arguing that the District Court abused its discretion in
permitting Agent Coleman to testify to Brown's knowledge and intent in
violation of Fed. R. Evid. 704(b). Under Rule 704(b), no expert witness
"testifying with respect to the mental state or condition of a
defendant in a criminal case may state an opinion or inference as to
whether the defendant did or did not have the mental state or condition
constituting an element of the crime charged...." Fed.R.Evid. 704(b).
Specifically, Brown alleges that Agent Coleman was expressing his own
opinion that Brown intended to hurt Sydnor or Brickel. He also
implicitly argues that the testimony of Agent Coleman, who was
qualified as an expert, violated the dictates of Rule 702 when he
defined words that did not require specialized knowledge to understand,
since that testimony would not assist the jury.
In support of his Rule 704(b) argument, Brown points to two statements
by Agent Coleman. First, Coleman testified that (in his opinion) when
Gibbs told Brown, "Tonight will be the night," Gibbs meant that Brown
and Fluellen could complete the mission against Sydnor or Brickel that
night. Agent Coleman also testified that when Brown stated, "I was on
that last night, plus we're going to be on that tonight," he believed
that Brown was referring to "the mission they had talked about earlier
to locate or find some individual and hurt them."
The government responds that Agent Coleman did not testify to Brown's
state of mind or intent. Rather, the government contends that, in the
passages cited by Brown, Coleman limited his testimony to interpreting
the cryptic language, never opined on Brown's intent, and never stated
that Brown was an "enforcer." Indeed, the government points to two
exchanges in the record where Agent Coleman explicitly disclaimed
knowledge of what Brown's intentions were with regard to the "mission."
The government also notes that the District Court instructed the jury
that they were not bound to believe or follow Agent Coleman's expert
opinion. This was a proper instruction.
As a first step in deciding whether the evidence against Brown was
sufficient, we must decide whether Agent Coleman improperly opined on
Brown's intent or knowledge in violation of Rule 704(b), or whether his
testimony violated Rule 702, and thus whether part of Coleman's
testimony should have been excluded. The admission of expert testimony
should be reversed only for an abuse of discretion. See United States
v. Bennett, 161 F.3d 171, 182 (3d Cir.1998). The trial judge has broad
discretion to admit or exclude expert testimony, based upon whether it
is helpful to the trier of fact. See id. (citing Fed.R.Evid. 702); 4
Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal
Evidence § 702.02[2] (Joseph M. McLaughlin ed., 2d ed.1997).
As a preliminary matter, we note that it is well established that
experienced government agents may testify to the meaning of coded drug
language under Fed.R.Evid. 702. See, e.g., Theodoropoulos, 866 F.2d at
590-91; see also United States v. Plunk, 153 F.3d 1011, 1017 (9th
Cir.1998) (noting that the jargon of the narcotics trade and drug
dealers' code language are proper subjects of expert opinion), cert.
denied, 526 U.S. 1060, 119 S.Ct. 1376, 143 L.Ed.2d 535 (1999); United
States v. Delpit, 94 F.3d 1134, 1145 (8th Cir.1996) (same); United
States v. Boissoneault, 926 F.2d 230, 232 (2d Cir.1991) (same). Because
the primary purpose of coded drug language is to conceal the meaning of
the conversation from outsiders through deliberate obscurity, drug
traffickers' jargon is a specialized body of knowledge and thus an
appropriate subject for expert testimony. See United States v.
Griffith, 118 F.3d 318, 321 (5th Cir.1997); Theodoropoulos, 866 F.2d at
591.
Such testimony is relatively uncontroversial when it permits a
government agent to explain the actual meanings of coded words--that
is, when the agent acts as a translator of sorts. See, e.g., Griffith,
118 F.3d at 322 (agent testified that "days of work" meant pounds of
marijuana); Delpit, 94 F.3d at 1144 (agent testified that "straps"
meant guns); United States v. Simmons, 923 F.2d 934, 946 (2d Cir.1991)
("boyfriend" or "boy" meant heroin). This precept applies here to much
of what Agent Coleman testified about. It was within the scope of Agent
Coleman's expertise to explain, for example, in specific contexts, that
"jawn" meant "cocaine," that to "hit" someone meant to page them on a
beeper, that "on post" meant "ready and waiting," and that a "quarter"
meant $2,500.
It is a different matter when an agent testifies that, in light of the
meanings he has attributed to certain conversations, a defendant has
played a certain role in, or has certain knowledge about, a conspiracy
or other offense. See, e.g., Boissoneault, 926 F.2d at 233 (expressing
discomfort with expert testimony that draws conclusions as to the
significance of conduct or evidence). But see United States v. Foster,
939 F.2d 445, 452 (7th Cir.1991) (holding that although certain
behavior may have an innocent explanation, it is a fair use of expert
testimony to offer another explanation for that behavior); United
States v. DeSoto, 885 F.2d 354, 360-61 (7th Cir.1989) (everyday
appearance of an activity is not an automatic bar to admission of
expert testimony that may attribute a more sinister motive to the
actions, though admission does require special vigilance to avoid
unfair prejudice). Brown contends that Agent Coleman testified about
Brown's intent to harm the target of the mission in violation of Rule
704(b).
However, Agent Coleman never testified to what Brown's intent was with
regard to the mission. Indeed, he specifically refused to do so. Where
an expert in a criminal case has not explicitly testified about a
defendant's intent, courts have been reluctant to exclude the expert's
testimony under Rule 704(b). See United States v. Lipscomb, 14 F.3d
1236, 1242-43 (7th Cir.1994) (using two-part test that examines whether
the actual word "intent" was used and looking to the source of the
expert's opinion to determine admissibility under 704(b)); United
States v. Smart, 98 F.3d 1379, 1388 (D.C.Cir.1996) (adopting Seventh
Circuit test). Similarly, in Plunk, the court noted that the defendant,
who alleged that the expert's testimony violated Rule 704(b), "pointed
to nothing in [the expert's] testimony that comprises an explicit
opinion that Plunk intended or knew anything in conjunction with the
crimes charged. Likewise, nothing in the testimony necessarily compels
such an inference or conclusion." 153 F.3d at 1018; see also Simmons,
923 F.2d at 947 ("[The agent's] testimony, which related only to the
meaning of unfamiliar narcotics jargon, left to the jury the task of
determining whether the decoded terms demonstrated the necessary
criminal intent.").
The two sentences of Agent Coleman's testimony that allegedly offer an
opinion on Brown's intent to further the conspiracy by protecting
Gibbs--as the ringleader of the conspiracy--against a threat of harm do
not in fact offer such an opinion. At no point did he articulate either
that Brown intended to kill Sydnor or Brickel, or that Brown intended
to further the conspiracy by acting as its enforcer. Coleman
specifically stated, "I don't know what his intentions were," and he
agreed that he had no idea "whether [Brown was] going on this mission
or not." The District Court therefore did not abuse its discretion in
permitting Agent Coleman to testify in this regard.
We read Brown's objection to Agent Coleman's testimony to include an
objection that the District Court permitted Coleman to interpret
several segments of conversation that did not require expertise to
interpret, that his interpretation would thus not assist the jury, and
that this evidence was prejudicial. Coleman testified that "tonight is
the night" was a reference to the fact that Brown and Fluellen were
going to go on their mission that night. He also testified that "got to
do it tonight" meant "got to go on the mission tonight." Unlike a word
like "jawn," which would not be familiar to most jurors and which is
the proper subject of expert testimony, a phrase like "tonight is the
night" contains no intrinsic code that a jury would be unable to
understand. Testimony about such a phrase's meaning is therefore not
helpful to the jury.
We have upheld the exclusion of expert testimony when that testimony
ventures into areas in which the jury needs no aid or illumination.
See, e.g., United States v. Dicker, 853 F.2d 1103, 1108-09 (3d
Cir.1988) ("Although courts have construed the helpfulness requirement
of Fed.R.Evid. 701 and 702 to allow the interpretation by a witness of
coded or 'code-like' conversations, they have held that the
interpretation of clear conversations is not helpful to the jury, and
thus is not admissible under either rule."); see also Fed.R.Evid. 702
advisory committee notes (stating that whether the situation is a
proper one for expert testimony "is to be determined on the basis of
assisting the trier"); United States v. Stevens, 935 F.2d 1380, 1384
(3d Cir.1991) ("[W]e agree with the district court's exclusion of
Stevens's expert testimony on two of the three disputed points in that
such testimony would not have been 'helpful' --the touchstone of
Fed.R.Evid. 702--to the jury."); Scott v. Sears, Roebuck & Co., 789
F.2d 1052, 1055 (4th Cir.1986) (noting that Rule 702 makes inadmissible
expert testimony as to a matter that obviously is within the common
knowledge of jurors because such testimony, almost by definition, can
be of no assistance; but noting that the admission of such testimony,
though technical error, will almost invariably be harmless); 2 Stephen
A. Saltzburg et al., Federal Rules of Evidence Manual 1218-19 (7th
ed.1998).
We conclude that the District Court abused its discretion in failing to
exclude Agent Coleman's testimony explaining what "tonight's the
night," "we're going to be on that tonight," and "got to do it tonight"
meant. It was the function of the jury, which heard all of the relevant
tape recordings, to determine what these phrases meant in the context
of the surrounding sentences. Agent Coleman's testimony was not helpful
to the jury; in fact, the only purpose of that testimony was to bolster
the government's allegations that Brown was an enforcer.
We cannot say, however, that the three sentences of Coleman's testimony
that infringed on the jury's role constituted prejudicial error under
Fed.R.Evid. 103(a), in light of the other properly admitted evidence
against Brown.
We reach this conclusion based on the strength of the remaining
evidence against Brown. First, Collier testified that a mission meant
an attempt to harm or kill someone, and that Gibbs had asked Collier to
steal a car to be used in effectuating the mission. See supra Part
III.A. Agent Coleman opined that "mission" meant "[a]n attempt to
locate, find and hurt whoever Gibbs wants them to locate, find and
hurt." This type of interpretation is admissible since it is an
interpretation of a code word whose definition a jury would most likely
need to have explained. Taken in conjunction with those definitions of
"mission," Gibbs's statement that "Earl was ... on a mission the other
night" substantially furthers our conclusion. Finally, taking the
content and timing of conversations between Gibbs and Brown as a whole,
a jury reasonably could have concluded that the exchanges (including
Brown's statements like "got to do it tonight" and his assent to
Gibbs's statement that "[t]onight will be the night") traced a plan to
harm someone who was "getting on [Gibbs's] nerves," a plan that
involved waiting outside a particular nightclub for the person to
emerge unarmed and then injure him.
In light of our conclusion that the vast bulk of Agent Coleman's
testimony is admissible, and in view of the strength of the remaining
evidence, we believe that the government offered sufficient evidence
for a jury to conclude not only that Brown had acted as an "enforcer"
for the conspiracy, but that Brown knew that by his acts he was
furthering the aims of the conspiracy by protecting the individual whom
he knew to be the ringleader. We therefore will affirm Brown's
conviction.
C. Brown's Sentence
Brown raises a number of reasons why his sentence should be
overturned. We disposed of most of these supra, in the margin. We deal
more fully with two of them: whether the District Court erred in
attributing to him all of the drugs that were distributed by the
conspiracy in the one-month period during which Brown acted as an
enforcer; and whether the District Court properly increased Brown's
offense level on the basis of Brown's possession of a firearm.
1. Drug Type and Quantity
At sentencing, the District Court attributed twenty-seven
kilograms of powder cocaine and nine ounces of crack to Brown. Relying
on Collado, 975 F.2d at 995, Brown contends that his involvement with
the conspiracy, if any, was limited to interactions with Gibbs, and
that the District Court therefore should not have attributed to him
amounts of drugs that were part of other transactions of the
conspiracy. We review for clear error the District Court's findings of
fact regarding the relevant quantities of cocaine and crack
attributable to Brown, as well as the types of drugs at issue. See
Miele, 989 F.2d at 663; Roman, 121 F.3d at 140.
Brown is correct that, under the Guidelines, a court may not sentence a
defendant for the entire amount of drugs in a conspiracy merely because
the defendant has been found guilty of the crime of conspiracy. The
sentencing court can consider "relevant conduct," including the
"conduct of others that was both in furtherance of, and reasonably
foreseeable in connection with, the criminal activity jointly
undertaken by the defendant." Price, 13 F.3d at 732. However, courts
often have held enforcers for drug conspiracies responsible for the
amount of drugs that pass through the conspiracy during the time the
person acts as an enforcer. For the most part, courts have based their
holdings on the ground that the role of enforcer implies a strong
familiarity with the goings-on of the entire conspiracy. See, e.g.,
United States v. Cortinas, 142 F.3d 242, 250 (5th Cir.1998) (holding
enforcer responsible for all of the drugs handled by the conspiracy
during the twenty months he was part of the conspiracy); United States
v. Phillips, 37 F.3d 1210, 1214 (7th Cir.1994) (affirming district
court's finding that the defendant, who carried guns and enforced for
the conspiracy, had an intimate relationship with the operation and
could be held responsible for all the drugs handled by the conspiracy).
We think these decisions are correct. In our view, the role of enforcer
is often central to the viability of the drug conspiracy, which
perforce exists in a dangerous environment, and thus an enforcer who
has engaged in more than peripheral enforcement activities ought to be
chargeable for any drugs passing through the conspiracy during his
"enforcership" --at least for those deals made within the geographic
region in which he operated. We recognize that, just as there are
different paradigms of conspiracies, there may be different types of
enforcers in a conspiracy. Some enforcers may be close to the center of
the conspiracy, while others may work on the periphery. One enforcer
may enforce during the entire life of the conspiracy; another may
perform one task for the conspiracy and then go his own way. One must
therefore be careful to consider the scope of the putative enforcer's
role. In this conspiracy, however, during the limited time in question,
there was only one leader: Gibbs. As we discuss below, the government
proved that Brown served directly as an enforcer for Gibbs, who was
widely known to be a major drug dealer, and that Brown's job was to
protect Gibbs by hurting or killing someone who Gibbs perceived as a
threat, thus facilitating Gibbs's ability to deal drugs. We are
therefore comfortable in denominating Brown an enforcer for the
conspiracy throughout the time in which Brown worked for Gibbs.
We also acknowledge the danger of attributing to an enforcer the entire
quantity of drugs that pass through a conspiracy when that enforcer has
acted for only a short period time relative to the conspiracy's total
length. Here, Brown was involved in the conspiracy for about a month as
the enforcer for the head of the conspiracy, and the amount attributed
to him at sentencing reflected only the amount of drugs that passed
through the conspiracy during that month. We have thus avoided the
referenced danger.
In sum, in light of the number of conversations between Brown and Gibbs
and the District Court's specific finding that Brown was an enforcer
for "a major drug dealer," we do not think it was clearly erroneous for
the District Court to conclude that Brown was sufficiently involved
with the conspiracy, as a protector of the leader of a large
trafficking organization, so as to be charged with the twenty-seven
kilograms of powder cocaine and nine ounces of crack that passed
through the conspiracy during the time he served as an enforcer.
2. Brown's Increased Offense Level
In July 1996, while the investigation of the conspiracy was
ongoing, an informant told the government that Brown had participated
in an armed robbery during which a security guard was shot. The
government searched Brown's apartment, discovered a shotgun, and
prosecuted Brown under 18 U.S.C. § 922(g), which criminalizes
possession of a weapon by a convicted felon. The jury convicted him of
this offense. At sentencing in the instant case, the government
introduced as evidence the sawed-off shotgun, which was at the heart of
his earlier conviction, on the ground that Brown had possessed this
shotgun during the relevant time periods for which he was an enforcer
for the instant conspiracy.
The District Court took Brown's possession of the shotgun into account
in adding two points to his offense level, in accordance with U.S.S.G.
§ 2D1.1(b)(1), which directs a district court to increase a
defendant's base offense level by two points when a defendant possesses
a firearm during a drug offense. Brown alleges that this two-level
increase constituted double-counting and violated double jeopardy,
since he had already been punished for possessing the shotgun. We
review this argument, which he did not raise below, for plain error.
See United States v. Coates, 178 F.3d 681, 683 (3d Cir.1999).
The Supreme Court has made clear that the use of relevant conduct
to increase the punishment of a charged offense does not punish the
offender for that relevant conduct. See Witte v. United States, 515
U.S. 389, 395, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995). That is, a court
does not violate a defendant's protections against double jeopardy when
it convicts a defendant for crime X, enhances his sentence for crime X
because of conduct Y, and convicts him for conduct Y as well. In Witte,
the defendant pleaded guilty to possessing marijuana with intent to
distribute. In calculating Witte's offense level under the guidelines,
the district court considered not only the amount of marijuana involved
in the charged offense, but also an additional 1000 pounds of marijuana
and 1091 kilograms of cocaine involved in uncharged criminal conduct.
See id. at 393-94, 115 S.Ct. 2199. Witte was later indicted for
conspiring and attempting to import the 1091 kilograms of cocaine
considered in the earlier sentencing. The Supreme Court rejected
Witte's contention that his subsequent prosecution on the cocaine
offense would subject him to double jeopardy because the district court
had considered that conduct in sentencing him on the marijuana charge.
The Court explained, "[W]e specifically have rejected the claim that
double jeopardy principles bar a later prosecution or punishment for
criminal activity where that activity has been considered at sentencing
for a separate crime." Id. at 398, 115 S.Ct. 2199 (citing Williams v.
Oklahoma, 358 U.S. 576, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959)). The
Court also explained that "it makes no difference in this context
whether the enhancement occurred in the first or second sentencing
proceeding." Id. at 399, 115 S.Ct. 2199. In Brown's case, the two-point
sentence enhancement occurred in the second proceeding--his conspiracy
conviction--based on his possession of a firearm during a drug offense,
the possession for which he earlier had been convicted. Under Supreme
Court precedent, this does not create a double jeopardy problem. See
also United States v. Street, 66 F.3d 969, 980 (8th Cir.1995) (holding
that use of defendant's earlier state conviction to enhance federal
sentence for assaulting park rangers did not violate double jeopardy
clause). Because Brown's possession of a weapon was the basis for an
earlier conviction but a mandatory ground for enhancement in a separate
offense with different requirements, the District Court did not violate
Brown's double jeopardy rights and did not double count in reaching
Brown's final offense level. We therefore will affirm Brown's sentence
in its entirety.
IV. Terrence Gibbs
A. Specific Facts and Procedural History
As discussed supra, Terrence Gibbs, as one of the ringleaders of
the alleged cocaine conspiracy, was indicted on a number of counts. In
Count 1, he was charged with conspiring to distribute cocaine and to
possess cocaine with the intent to distribute. The indictment alleged
that Gibbs supervised a number of associates who distributed powder and
crack cocaine; that he obtained kilograms of cocaine from supplier Juan
Arana; and that he used violence to protect himself in his position as
leader of the conspiracy. The jury convicted Gibbs of Count 1 and the
District Court sentenced him to life imprisonment on this count.
The government established its case against Gibbs in much the same way
that it did against Sydnor and Brown: through intercepted phone
conversations and the interpretation thereof by Agent Coleman. It also
adduced testimony from a cooperating witness named Charles Wilkes. On
appeal, Gibbs objects both to his conviction and to his sentence. With
regard to his conviction, he first argues that Agent Coleman's
testimony went beyond mere interpretation of the coded conversations
into the realm of speculation and that the District Court therefore
plainly erred in allowing Agent Coleman to so testify. We find no merit
in this contention, which was not raised in the District Court and
which we therefore consider under a plain error standard of review, see
Coates, 178 F.3d at 683, and we reject it summarily in the margin.
B. Gibbs's Conviction
The government introduced evidence at trial about the use of
violence in the conspiracy. For example, it introduced testimony that
Gibbs, who suspected that Maurice Grannum had attempted to kidnap him,
sent Earl Packer Hunte and Derrick Parks to shoot Grannum, and that
once Gibbs suspected that Sydnor had shot him, he sent Earl Brown and
Frank Fluellen on a mission to kill Sydnor. Two police officers also
testified that the attempt to shoot Grannum did occur on the date and
time Gibbs and Parks had agreed upon. (The bullets passed into the
police officers' apartment.) Although the defense did not object to the
admission of this evidence at trial, Gibbs now complains that this
evidence should have been excluded because (i) the admission of the
evidence served no other purpose than to portray him as ruthless and
violent; (ii) the government did not offer the evidence under any one
theory of admissibility, as required by Rule 404(b); and (iii) the
government failed to show that the probative value of the evidence
outweighed its prejudicial effect.
We review a district court's decision to admit evidence for abuse of
discretion. See Government of V.I. v. Edwards, 903 F.2d 267, 270 (3d
Cir.1990). Because the defendant did not request a limiting instruction
with regard to the evidence of violence at trial, we review the
District Court's jury instructions for plain error. See Price, 13 F.3d
at 724; see also Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730,
52 L.Ed.2d 203 (1977) (noting that "[i]t is the rare case in which an
improper instruction will justify reversal of a criminal conviction
when no objection has been made in the trial court.").
Rule 404(b), which proscribes the admission of evidence of other crimes
when offered to prove bad character, does not apply to evidence of
uncharged offenses committed by a defendant when those acts are
intrinsic to the proof of the charged offense. As a prominent
commentator has explained:
In cases where the incident
offered is a part of the conspiracy alleged in the indictment, the
evidence is admissible under Rule 404(b) because it is not an "other"
crime. The evidence is offered as direct evidence of the fact in issue,
not as circumstantial evidence requiring an inference as to the
character of the accused. Such proof ... may be extremely prejudicial
to the defendant but the court would have no discretion to exclude it
because it is proof of the ultimate issue in the case.
22 Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5239, at 450-51 (1978).
A number of courts likewise have held that Rule 404(b) does not limit
the admission of evidence of the defendant's participation in acts of
violence as direct proof of a conspiracy. In United States v. Miller,
116 F.3d 641 (2d Cir.1997), cert. denied, 524 U.S. 905, 118 S.Ct. 2063,
141 L.Ed.2d 140 (1998), for example, the court held that proof of
murders by the defendants did not fall under 404(b) even though the
murders were not charged in the indictment; rather, the court held that
the murders were relevant to show the existence and nature of the
conspiracy. See id. at 682; see also United States v. Chin, 83 F.3d 83,
87-88 (4th Cir.1996) (holding that testimony challenged under 404(b)
regarding contract killing scheme emphasized the violent and dangerous
context of a heroin deal, and was inextricably intertwined with
defendant's crime of selling heroin and conducting an ongoing criminal
enterprise). We endorse this reading of Rule 404(b). Since the
government introduced evidence of Gibbs's use of violence to further
the illegal objectives of the cocaine conspiracy by removing threats to
himself (since threats to Gibbs meant threats to the trafficking
enterprise), the District Court did not abuse its discretion in
permitting this evidence to come in.
C. Gibbs's Sentence
The government presented two witnesses at Gibbs's sentencing
hearing: Agent Coleman and Charles Wilkes, a self-proclaimed contract
killer facing the death penalty who struck a deal with the government.
Gibbs contends that the District Court erred in reaching its totals of
150 kilograms of powder cocaine and 1.5 kilograms of crack based on
this testimony. We review the District Court's determination of the
drug quantities attributable to Gibbs for clear error. See Miele, 989
F.2d at 663.
Agent Coleman testified that the conspiracy received 111 kilograms of
powder cocaine in the four-month period in which the government
wiretapped Gibbs's phone. From that number, the government asserted
that the conspiracy must have handled at least 150 kilograms over the
life of the conspiracy, which ran from the summer of 1992 through April
1995 (approximately thirty-one months). The government notes that Agent
Coleman's estimate of 111 kilograms was a conservative one: the
electronic surveillance did not cover every day between November 1994
and April 1995; Gibbs used other phones that the government did not
wiretap; and if the conversation involved a multi-kilogram transaction
but Agent Coleman could not determine the specific number of kilograms
under negotiation, he attributed one kilogram to the conversation.
Agent Coleman described his attribution method as follows:
[W]hen I reviewed ... the tape
recordings of the conversations, after conducting the wire, I was able
to determine a pattern of speech where kilograms ... of cocaine were
discussed. And most of these conversations were between Terrence Gibbs
and Juan Arana or Juan Arana and Domingo Arana or others. And I would
take my analysis of either the money that was discussed referring to
kilograms of cocaine or the kilograms of cocaine and determine how many
were discussed in each conversation. Some conversations ... discussed,
what I believe to be crack cocaine.
He compiled a list of fifty-two phone conversations and the amounts he believed were discussed in each conversation.
As we discussed supra, it is appropriate for a district court to base
its quantity calculations on intercepted conversations. The government
can base its calculations on the amount of drugs under negotiation, see
United States v. Raven, 39 F.3d 428, 432 (3d Cir.1994), and it need not
prove that the amounts under negotiation were actually distributed, see
United States v. Layeni, 90 F.3d 514, 522 (D.C.Cir.1996). A district
court may carefully estimate the total drug quantities involved in a
conspiracy based on evidence of average drug transactions during the
conspiracy. See U.S.S.G. § 2D1.1 application note 12. In addition,
a leader of a drug conspiracy is responsible for drug quantities
transacted by his subordinates in furtherance of the conspiracy. See,
e.g., United States v. Russell, 134 F.3d 171, 184 (3d Cir.1998)
(attributing to defendant, who was the conspiracy's organizer, the
total quantity of drugs for which defendant's co-conspirators had taken
responsibility); United States v. Magana, 118 F.3d 1173, 1206 (7th
Cir.1997) (holding that defendant is liable for entire quantity of
drugs attributable to conspiracy in circumstances where defendant is
one of conspiracy's central figures).
While the conversations and amounts calculated therefrom are too
lengthy to recount here, the District Court did not clearly err in
finding that the government had proved the quantities of powder
attributable to Gibbs by a preponderance. In fact, it appears that
Agent Coleman was conservative in Gibbs's favor in his calculations.
The government must also prove by a preponderance that the substance
involved is crack. See United States v. Holman, 168 F.3d 655, 658 (3d
Cir.1999) (noting that "[i]t is the serious duty of the district court
to hold the government to" the preponderance standard, "particularly
because of the impact the identity determination has on sentencing").
Agent Coleman testified that twelve kilograms of crack were sold during
the life of the conspiracy. First, agents seized baking soda and
cooking equipment from the apartment in which Gibbs allegedly cooked
powder into crack. Second, Agent Coleman interpreted discussions
involving cocaine that was "hard" or "done" as discussions about
cocaine that had been cooked into crack. Third, Collier, Ellis, Parks,
and Wilkes all testified that they personally had seen crack processed
and distributed while they were members of the conspiracy. In fact,
Ellis testified that he helped Gibbs process kilograms of crack five or
six times. Coleman testified that the process these witnesses had seen
would indeed produce crack. Finally, to avoid double counting when
calculating Gibbs's sentence, the District Court subtracted these
twelve kilograms of crack from the 111 kilograms of powder, since the
crack had been processed from the powder.
We conclude that the government proved by a preponderance that Gibbs
was responsible for producing at least 1.5 kilograms of crack. In fact,
it arguably proved that Gibbs had produced much more than that, in
light of the taped conversations and Ellis's testimony that he had been
present when Gibbs cooked five or six kilograms of cocaine into crack.
The government does not need to perform chemical analysis on the seized
substances in order to prove that a substance was crack, see United
States v. Dent, 149 F.3d 180, 190 (3d Cir.1998), cert. denied, 525 U.S.
1085, 119 S.Ct. 833, 142 L.Ed.2d 689 (1999); Roman, 121 F.3d at 141,
and other courts have held that the government may rely on the
testimony of co-conspirators who distributed crack or who observed its
manufacture to establish that the substance at issue was crack, see
United States v. Hargrett, 156 F.3d 447, 451 (2d Cir.) (holding that
testimony of co-conspirator that he cooked cocaine into crack for
defendant was reasonable basis on which to charge defendant with that
amount of crack), cert. denied, 525 U.S. 1048, 119 S.Ct. 607, 142
L.Ed.2d 547 (1998); United States v. Cantley, 130 F.3d 1371, 1378-79
(10th Cir.1997) (multiple police officers and lay witnesses who
purchased substance from, or sold substance to, defendant testified
that substance was crack), cert. denied, 522 U.S. 1137, 118 S.Ct. 1098,
140 L.Ed.2d 153 (1998); United States v. Taylor, 116 F.3d 269, 273-74
(7th Cir.1997) (drug supplier, purchasers, and assistants testified
that substance was crack).
In sum, based on the amount of drugs discussed in intercepted
conversations and on the reasonable estimate that if the conspiracy
handled 111 kilograms of cocaine in four months, it handled 150
kilograms over thirty-one months, we conclude that the District Court
did not clearly err in attributing 150 kilograms of powder cocaine and
1.5 kilograms of crack to Gibbs as a leader of the conspiracy.
The judgments of the District Court will be affirmed.