Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:07-CR-00259-F-1).
The opinion of the court was delivered by: Lucero, Circuit Judge
Before LUCERO, ANDERSON, and EBEL, Circuit Judges.
This case is before us on direct appeal of a criminal conviction and sentence. Among other dispositions,*fn1 Michael Caldwell was convicted by a jury of participating in a three-party conspiracy to distribute marijuana. The government alleged the conspiracy consisted of Caldwell, the defendant; David Anderson, a street dealer of marijuana; and Samuel Herrera, the drug supplier for both Anderson and Caldwell. In its verdict, the jury concluded the three men entered into a single conspiracy-a tripartite conspiracy- to distribute at least 100 kilograms of marijuana over a two-year period. Although Caldwell admits that he conspired with Herrera, he argues that insufficient evidence supports the theory of a tripartite conspiracy. Caldwell maintains that both the jury and the sentencing judge attributed an improper quantity of marijuana to him. He also asserts that, during trial, the district court erroneously admitted evidence of his prior convictions for drug-related crimes.
On our review of the record on appeal, we conclude that the evidence presented at Caldwell's trial was indeed sufficient to establish conspiracies between Caldwell and Herrera and between Caldwell and Anderson, but that it was insufficient to establish a tripartite conspiracy among all three. Both the jury and the sentencing court erroneously attributed quantities of marijuana to Caldwell based on the existence of a tripartite conspiracy. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1), we affirm Caldwell's conviction, but vacate his sentence and remand the case to the district court for resentencing.
Beginning in 1995, the United States Drug Enforcement Administration ("DEA") began investigating a drug ring headed by the Rosales family of El Paso, Texas. The family's main contact in Oklahoma was Robert Williams, who distributed marijuana to a number of intermediary suppliers in the state. These suppliers distributed the marijuana, mostly on consignment, to street-level dealers.
Herrera was one such intermediary supplier. He sold marijuana to a number of street-level dealers in Oklahoma City, including Caldwell. The first transaction between Herrera and Caldwell took place in 2004. During that transaction, Caldwell received between two to four kilograms of marijuana on consignment. For approximately two years thereafter, Herrera distributed two to seven kilograms of marijuana once every several weeks to Caldwell. Caldwell then resold the marijuana to users.
Anderson, a friend of Caldwell's since early 2005, eventually became another one of Herrera's main customers. Early in their friendship, Anderson dealt drugs to Caldwell: On two or three occasions shortly after they met, Anderson sold Caldwell approximately one kilogram of marijuana on consignment. For roughly one year after these sales occurred, Anderson and Caldwell had no drug-related interaction. Then in early 2006, Anderson's regular supplier was "running short" on marijuana, and Anderson asked Caldwell if he knew of a reliable drug supplier. Caldwell arranged a meeting between Anderson and Herrera. Even though Caldwell was present at the initial meeting, during which Herrera sold approximately 4.5 kilograms of marijuana to Anderson on consignment, Caldwell received no economic benefit from the introduction. From that point on, Anderson and Herrera dealt with one another "one-on-one"-that is, no subsequent drug transactions between Anderson and Herrera involved Caldwell. Anderson received monthly supplies of approximately four to nine kilograms of marijuana from Herrera, generally on consignment.
During the course of its investigation, the DEA intercepted several incriminating calls regarding the distribution of marijuana between Herrera and Caldwell,*fn2 and a number of similar calls between Herrera and Anderson.It did not intercept any drug-related telephone conversations between Caldwell and Anderson.
In October 2007, a grand jury indicted Caldwell for conspiracy to distribute 100 kilograms or more of marijuana in violation of 21 U.S.C. § 841(a)(1). The indictment listed Caldwell, Herrera, and Anderson as members of the same conspiracy. In exchange for reduced sentences, both Herrera and Anderson testified at trial. A DEA agent also testified that, during the course of the conspiracy, Herrera sold 54 to 163 kilograms of marijuana to Caldwell and 163 to 327 kilograms of marijuana to Anderson.
Over Caldwell's objection, the government also introduced evidence of Caldwell's prior drug-related convictions, several of which occurred more than fifteen years before his indictment in this matter. In instructing the jury on the limited admission, the district court stated that Caldwell's prior convictions "must not be taken by [the jury] as proof that [Caldwell] did what is charged in the indictment of this case," but could only be used to determine "whether he had a motive or opportunity to commit the acts charged in this case and what his intent was."
Caldwell was convicted of conspiracy to distribute marijuana, and the jury returned a special verdict finding that the conspiracy involved 100 kilograms or more of marijuana.During sentencing, the court relied on the special verdict and a presentence investigation report ("PSR"). The PSR attributed 188 kilograms of marijuana to Caldwell. Caldwell objected to the drug quantity determinations of the jury and the PSR, but the court overruled Caldwell's objection. Based on its finding that over 100 kilograms of marijuana was attributable to Caldwell, the court sentenced Caldwell to 130 months' imprisonment.
We must first consider whether the government produced sufficient evidence for a reasonable jury to conclude that Herrera, Caldwell, and Anderson were engaged in a tripartite conspiracy to distribute marijuana. Where "an indictment charges a single conspiracy, but the evidence presented at trial proves only the existence of multiple conspiracies," a variance occurs. United States v. Carnagie, 533 F.3d 1231, 1237 (10th Cir. 2008). In considering a claimed variance, "we view the evidence and draw all reasonable inferences therefrom in the light most favorable to the government, asking whether a reasonable jury could have found [the defendant] guilty of the charged conspirac[y] beyond a reasonable doubt." Id. The existence of a variance that would support acquittal is a matter of law that we review de novo. See United States v. Avery, 295 F.3d 1158, 1177 (10th Cir. 2002); see also United States v. Griffin, 493 F.3d 856, 862 (7th Cir. 2007) ("We treat a conspiracy variance claim as an attack on the sufficiency of the evidence supporting the jury's finding that each defendant was a member of the same conspiracy.").
As noted, we conclude that Herrera's role as a common supplier, Caldwell's earlier purchase of marijuana from Anderson, and Caldwell's introduction of Anderson to Herrera do not constitute sufficient evidence of a single conspiracy among the three drug dealers. Instead, the evidence presented at trial demonstrates the existence of separate conspiracies between Caldwell and Anderson, and between Caldwell and Herrera. Assuredly, each of the three ...