Appeal from the United States District Court for the District of Columbia (92cr00213-01 & 92cr00213-02)
Before Edwards, Chief Judge, Wald and Henderson, Circuit Judges.
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Opinion for the Court filed by Circuit Judge Wald.
Appellants Dennis Mitchell and Paul Campbell were convicted of conspiracy to possess and distribute cocaine in violation of 21 U.S.C. Section(s) 846. In addition, Campbell alone was charged with and found guilty of engaging in a continuing criminal enterprise in violation of 21 U.S.C. Section(s) 848, based on findings of guilt in fourteen of twenty-seven drug-related violations charged as elements of this enterprise, and of distribution of drugs in the District of Columbia, in violation of 21 U.S.C. Section(s) 841(b)(1)(A)(iii). Both defendants were charged with forfeiture of $1 million acquired during the illegal narcotic activities pursuant to 21 U.S.C. Section(s) 853. On appeal, each defendant raises several challenges to his conviction. We find that none of these challenges has merit and affirm the convictions. We find, however, that Mitchell has raised valid challenges to his sentence, and, accordingly, vacate his sentence and remand for resentencing.
Taken in the light most favorable to the government, the evidence presented at trial established that Campbell distributed cocaine and cocaine base to various persons in St. Louis, Missouri, Washington, D.C., and several California cities between 1985 and 1992, and that he recruited and maintained a significant number of distributors and couriers to support this operation. The evidence also established that Mitchell was involved in Campbell's operation, primarily through making non-drug deliveries connected with drug transactions, during two distinct time periods in 1990 and 1992.
I. Sufficiency of the Evidence
Campbell challenges the sufficiency of the evidence to support his continuing criminal enterprise conviction. In order to convict a defendant of engaging in a continuing criminal enterprise, the government must prove beyond a reasonable doubt that he committed a series of drug violations "in concert with five or more other persons with respect to whom [the defendant] occupies a position of organizer, a supervisory position, or any other position of management." 21 U.S.C. 848(c). Campbell argues that there was insufficient evidence that he occupied a managerial position over five other people. Instead, he argues, the evidence showed only that he "fronted" drugs to independent dealers.
When we assess claims of insufficient evidence, "[o]ur review is confined to the question "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond reasonable doubt.' " United States v. Washington, 12 F.3d 1128, 1136 (D.C. Cir. 1994) (quoting Jackson v. Virginia, 443 U.S. 307 (1979) (emphasis in original)). In this case our examination of the evidence presented at trial reveals that this standard is readily met.
As Campbell observes, several courts have held that if a dealer simply sells drugs to other dealers on consignment and is paid from the proceeds of their sales, but has no other involvement in their sales, the dealer does not have the necessary managerial control for conviction of leading a continuing criminal enterprise. See, e.g., United States v. Ward, 37 F.3d 243, 248 (6th Cir. 1994), petition for cert. filed (U.S. Feb. 6, 1995) (No. 94-8069); United States v. Delgado, 4 F.3d 780, 785-86 (9th Cir. 1993); United States v. Possick, 849 F.2d 332, 336 (8th Cir. 1988). Without ascertaining the precise line between "fronting" and "managing," we have no doubt that the evidence in this case established that Campbell actually managed more than five other parties in the course of his seven-year operation. Below, we highlight certain segments of the evidence that illustrate Campbell's control over at least five people. The record contains significantly more evidence than we present below; we summarize only enough to establish the requisite control over five people.
Randy Walker testified to meeting Campbell in Sacramento and helping with the distribution of drugs roughly thirty times. Transcript ("Tr.") at 168, United States v. Campbell and Mitchell (D.D.C. 1993) (Cr. No. 92-213). He described one incident in detail, in which Campbell took him to the Oak Park area of Sacramento, where, Campbell informed Walker, "he had several dope houses." Tr. at 154. Campbell gave Walker 15 to 20 "sixteenths of rock cocaine," told Walker the price at which he should sell them, and took Walker to "one of his rock houses." Tr. at 155. At this house, Campbell told two other men selling drugs that "nobody else in the house" was to sell "sixteenths" until Walker was done. Tr. at 155. When Campbell subsequently moved his operations to St. Louis, Walker testified that Campbell paid him to bring drugs from Los Angeles to St. Louis. Tr. at 228. On various occasions in St. Louis, Campbell told Walker and others, including "Tony" and "Mike," to send money from drug sales via Western Union. Tr. at 250.
Tim Outlaw was one of Campbell's co-conspirators in St. Louis. Outlaw testified that Campbell recruited Outlaw's cousins to sell drugs by telling them that because they were "preppie looking ... they could get by the airport and they could bring a lot of stuff in and out and they could make a lot of money with him." Tr. at 1027. After Outlaw's cousins sold a batch of drugs that Campbell had acquired, Campbell arranged for Outlaw and one of his cousins to bring the proceeds of the sale to Los Angeles and instructed them to "wear nice slacks and keep [their] hair combed right and wear nice shirts ... so [they] wouldn't be profiled, wouldn't get stopped in the airport." Tr. at 1033-34.
Calvin Stevens in Washington, D.C.
Calvin Stevens testified to selling drugs on a consignment arrangement with Campbell. His description of the relationship established that it involved oversight of a degree sufficient to remove it from the pure "fronting" category. Specifically, Stevens testified that, "He called me practically every day. I think it amounted to maybe four or five days, just checking on my progress. I told him I was almost done." Tr. at 1374. He also testified that Campbell "wanted Sherwin and I to drive down to El Paso." Tr. at 1980.
Government witness Calvin Stevens testified that Campbell had several regular drivers: "Paul said ... that the people that usually drove for him, Sherwin, the guy Kevin and P.J., they were all in Mexico with him waiting on his connection to come through." Tr. at 2008. He testified to meeting Kevin Swanberg, and that, "Paul later told me that he was one of his drivers." Tr. at 2000.
In sum, this evidence readily supports the jury's finding that Campbell did not simply "front" drugs to the various people involved in his operation. To the contrary, the evidence shows that he recruited, trained, and directed more than five workers, and thus sustains a conviction for engaging in a continuing criminal enterprise.
II. Evidence of Other Bad Acts
Both Campbell and Mitchell charge that the district court erred in admitting, pursuant to Federal Rule of Evidence 404(b), evidence of an uncharged methamphetamine deal. Campbell and Mitchell were each charged with conspiracy to possess and distribute cocaine and cocaine base. At trial, the government introduced evidence of an uncharged methamphetamine deal in which both Campbell and Mitchell were involved. Before the district court, the government pressed two grounds for the admission of the evidence: first, that it was part of the conspiracy to possess and distribute cocaine, because Campbell used the proceeds from the methamphetamine sale to fund ongoing efforts to obtain cocaine, and second, that it was admissible as relevant "other crimes" evidence pursuant to Federal Rule of Evidence 404(b).
The trial court, relying on the government's proffer that the methamphetamine transaction was linked to the ongoing cocaine conspiracy, initially admitted the methamphetamine evidence as evidence of the conspiracy itself. After testimony from several witnesses about the transaction, however, the trial court concluded that the government had failed to establish a link between the deals, and that the evidence was not admissible as direct evidence of the conspiracy. At this point, the district judge considered the government's alternative 404(b) argument, and concluded that the evidence was admissible under 404(b). Accordingly, he instructed the jury that it could only consider the evidence for its relevance to knowledge, intent, lack of mistake, and to "illustrate the relationship and agreements between the defendants." Tr. at 4197-98. In its final directions to the jury, the district court distilled its charge to instruct that the evidence could be considered "for only two limited purposes": (1) "whether that evidence shows that the defendants had a specific plan to commit a series of crimes that are connected to each other"; or (2) "whether the defendants intended to commit the charged offenses." Tr. at 7875.
The evidence at issue involved a methamphetamine deal arranged jointly by Campbell and Khalifeh Abujudeh. A former co-conspirator of Campbell's, Abujudeh was, during the period of the methamphetamine transaction, acting as a government informant subsequent to his arrest. In this role, he was instructed to arrange a drug transaction with Campbell, to make recordings of his dealings with Campbell, and to arrange that the final sale be made to a government agent. Accordingly, when Campbell "indicated he was associated with a meth lab" and asked if Abujudeh "ha[d] anybody that might be interested in buying it," Tr. at 3688-89, Abujudeh told Campbell that he would, indeed, be able to sell some methamphetamine if Campbell acquired it.
In several phone calls over the next month, Abujudeh prodded Campbell to come to San Clemente and complete this deal, telling Campbell he was broke and needed money for his attorney. Tr. at 3693 (tape of conversation in which Abujudeh says, "You know what's up. Gotta get paid, Soup [Campbell], gotta get paid. So what's the status, man?"); Tr. at 4425 (Abujudeh recalls "at several different times, either myself or Mr. Campbell brought up the ongoing story about my attorney and the fact that we were both broke at the time, and this is part of the reason that Mr. Campbell was doing the whole thing with the ephedrine and speed is he also needed money"). Subsequently, Campbell "put[ ] together an ephedrine deal with a guy by the name of Nathan Everhardt, who was in Florida." Tr. at 3822. Campbell and Mitchell jointly wired money to Everhardt via Western Union, Tr. at 3812, and "[a]bout that time it was decided that [Everhardt] would send three boxes of ephedrine to Dennis Mitchell's house. Paul sent Dennis home to go receive the ephedrine," Tr. at 3822.
This purchase of the ephedrine was the first step in a two-step process. After Mitchell returned with the ephedrine, the two men needed to complete the second step-exchanging the ephedrine, a precursor to methamphetamine, for actual methamphetamine. Tr. at 3906. Both Abujudeh and Campbell negotiated with their own sources to consummate this second step. Campbell's source fell through and the exchange was ultimately made with Abujudeh's source, Mike Lancelotti. *fn1 When less ephedrine than expected arrived, Campbell renegotiated the ephedrine-methamphetamine swap with Lancelotti. Tr. at 3907-09. Under the final deal, Campbell agreed to give Lancelotti the ephedrine in exchange for $5000 and one pound of methamphetamine. See id. Mitchell then drove the ephedrine to Sacramento and made the exchange with Lancelotti. Tr. at 3910. He returned to San Clemente with the money and methamphetamine, which he gave to Campbell. Tr. at 3964. Abujudeh and Campbell then arranged to send Mitchell to sell the methamphetamine to Abujudeh's buyer, the undercover officer. See id. Mitchell returned with $10,000, which he gave to Campbell, who, in turn, gave $5,500 to Abujudeh. Tr. at 3980.
B. Rule 404(b) and the Admission of Other Bad Acts
Rule 404(b) of the Federal Rules of Evidence proscribes the admission of evidence of "other crimes, wrongs, or acts" when its use is to show propensity, i.e., where the jury is encouraged to make the inference that because the defendant committed another bad act, he is more likely to have committed the charged act. The rule permits, however, the introduction of evidence of other bad acts "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Fed. R. Evid. 404(b). Evidence of the other bad acts that meets this "relevancy threshold" of Rule 404(b) is not automatically admissible. It must still satisfy Rule 403, under which the court must assess whether its "probative value is substantially outweighed by the danger of unfair prejudice." Fed. R. Evid. 403.
In accordance with this scheme, this court follows a two-step analysis in reviewing district court decisions to admit evidence of a defendant's other bad acts. See United States v. Clarke, 24 F.3d 257, 264 (D.C. Cir. 1994). First, we inquire whether that evidence is relevant to a material issue other than character. If so, we proceed to the ...