RILEY, Chief Judge.
A jury convicted Ferris Lavelle Lee, Maurice M. Forest, and Marcus Jermaine Royston (collectively, appellants) of various drug-related offenses. The district court sentenced Lee to 540 months imprisonment, Forest to a statutory mandatory minimum 120 months imprisonment, and Royston to a statutory mandatory minimum life sentence. On appeal, the appellants raise numerous challenges to their convictions, and Forest and Royston challenge their sentences. We affirm in part and reverse in part, vacating Forest's and Royston's sentences and remanding for resentencing.
Lee, along with Jake Northern, oversaw a conspiracy to distribute cocaine and cocaine base
In December 2008, Tara Bauer, who helped the organization sell cocaine in Bismarck, informed local authorities about the organization. Bauer acted further as a confidential informant and participated in controlled buys on behalf of the authorities. Other confidential informants made numerous controlled buys from the organization in both Bismarck and Fargo. Each appellant was present and involved in at least one controlled buy.
In December 2009, a grand jury indicted the appellants and five other alleged coconspirators in a fourteen-count indictment. Count One charged appellants with conspiring to possess with intent to distribute and distributing more than fifty grams of cocaine base, and more than 500 grams of a mixture and substance containing a detectable amount of cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 18 U.S.C. § 2. Counts Two through Twelve charged Lee with distributing, or aiding and abetting the distribution of a controlled substance — either cocaine base or a mixture or substance containing cocaine — in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The indictment charged Forest (Count Eleven) and Royston (Count Twelve) with one count each of distributing and aiding and abetting the distribution of a controlled substance.
In May 2010, the district court presided over a thirteen-day trial. The government presented testimony from law enforcement officers, drug analysts, co-conspirators, confidential informants and individuals who either sold drugs for or bought drugs from the organization.
The jury returned a verdict finding all of the appellants guilty of the conspiracy
On August 3, 2010, the Fair Sentencing Act of 2010, Pub.L. No. 111-220, 124 Stat. 2372 (FSA), became effective. As relevant here, the FSA amended 21 U.S.C. § 841(b)(1)(A)(iii) to increase from fifty to 280 grams the quantity of mixture containing cocaine base necessary to trigger statutory minimum and maximum sentences.
After denying the appellants' post-conviction motions, see Fed.R.Crim.P. 29 and 33, the district court entered judgment on August 31, 2010. Determining the FSA was not retroactive and thus inapplicable, the district court sentenced (1) Lee to 540 months imprisonment for his continuing criminal enterprise conviction, to run concurrently with lesser sentences for his distribution
All of the appellants challenge the sufficiency of the evidence supporting their convictions. Royston also protests certain evidentiary rulings, the district court's denial of Royston's motion for a new trial, and the district court's imposition of a mandatory life sentence. Forest objects to the imposition of a mandatory minimum 120 month sentence. Lee expressly does not challenge his sentence.
We review de novo sufficiency of the evidence challenges, "viewing the evidence most favorably to the jury verdict, resolving conflicts in favor of the verdict, and giving it the benefit of all reasonable inferences." United States v. Spencer, 592 F.3d 866, 876 (8th Cir.2010). "The jury's verdict must be upheld if there is an interpretation of the evidence that would allow a reasonable jury to find [the appellants] guilty beyond a reasonable doubt." Id. (quoting United States v. Moore, 108 F.3d 878, 881 (8th Cir.1997)) (internal quotation marks omitted). "In making such an evaluation, `it is axiomatic that we do not review questions involving the credibility of witnesses, but leave credibility questions to the jury.'" United States v. Ragland, 555 F.3d 706, 715 (8th Cir.2009) (quoting United States v. Dabney, 367 F.3d 1040, 1043 (8th Cir.2004)) (internal marks omitted).
First, we consider Lee's conviction for engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848(c) (Count Thirteen).
United States v. Jackson, 345 F.3d 638, 645 (8th Cir.2003) (quoting United States v. Jelinek, 57 F.3d 655, 657 (8th Cir.1995)) (internal marks omitted).
Lee maintains "[n]o rational trier of fact can find beyond a reasonable doubt that [he] committed the series of related violations of narcotics laws as alleged ..., that
The jury convicted Lee of ten counts of distributing cocaine, sufficiently satisfying the first two elements, which require "a continuing series of three or more related felony violations of federal narcotics laws." Id. Lee's attempt to characterize the offenses merely as "a number of street level cocaine base dealers acting individually for their own benefit" falls flat. Northern described in detail his and Lee's efforts to purchase and distribute cocaine in three cities, using various individuals — often friends from their hometown of Chicago — as dealers.
Numerous witnesses corroborated Northern's core testimony, including confidential informants who distributed and purchased cocaine Lee supplied. It was the jury's prerogative to believe those witnesses, even if they were, as Lee complains, "admitted liars, drug users, drug dealers, and thieves" "who had struck deals with the Government." See United States v. Hernandez, 569 F.3d 893, 896 (8th Cir.2009) ("To reach a verdict, a jury is often required to weigh the credibility of criminal witnesses."); United States v. Bradley, 643 F.3d 1121, 1125-26 (8th Cir. 2011) (affirming a conviction and explaining our past rejection of claims that witnesses "were incredible because of their incentive for reduced sentences").
Sufficient evidence also supports the jury's finding that Lee organized, supervised, or managed more than five people — the jury identified eleven persons Lee managed — in furtherance of the continuing criminal enterprise, meeting the third and fourth elements. "[The management] element of the [continuing criminal enterprise] statute is satisfied if `[Lee] exerted some type of influence over another individual as exemplified by that individual's compliance with [Lee's] directions, instructions, or terms.'" Jackson, 345 F.3d at 646 (quoting United States v. Possick, 849 F.2d 332, 336 (8th Cir.1988)) (internal quotation marks omitted). "The government need not establish that [Lee] managed five people at once, that the five acted in concert with each other, that [Lee] exercised the same kind of control over each of the five, or even that [Lee] had personal contact with each of the five." Possick, 849 F.2d at 335-36.
The jury heard evidence that at least five people sold cocaine at the direction of Lee and Northern. See id. at 336 (explaining "defendants who arrange the acquisition of the drug, its delivery, and set the price and credit terms have been found... to satisfy the requirements of the management element"); United States v. Mathison, 518 F.3d 935, 940 (8th Cir.2008) (reasoning the element is met if there is evidence showing the "defendant ... provided substantial amounts of drugs in an ongoing relationship with lower-level drug dealers"). Lee also arranged for some of these dealers to live and deal drugs out of two homes, paying the homeowners cash and drugs to do so. This evidence supported the jury's finding that Lee directed the two owners of these homes. See id. (recognizing "a defendant manages someone who stores drugs for him"); United States v. Lueth, 807 F.2d 719, 732 (8th Cir.1986) (similar).
Finally, there was sufficient evidence for the jury to conclude Lee derived substantial income from the enterprise. "The [continuing criminal enterprise] statute does not prescribe the minimum amount of money required to constitute `substantial' income. Judicial decisions construing this phrase have given the prosecution great latitude on this point."
To convict the appellants for distribution, the government needed to prove the appellants "knowingly sold or otherwise transferred" specified amounts of cocaine. United States v. Garcia, 646 F.3d 1061, 1066 (8th Cir.2011). The aiding and abetting charges required the government to prove the appellants "associated [themselves] with the unlawful [sale or transfer], participated in it as something [they] wished to bring about, and sought by [their] actions to make it succeed." United States v. Lewis, 593 F.3d 765, 769 (8th Cir.2010). "[N]either possession nor an actual sale by a defendant need be proved by the government on a charge of distributing or aiding and abetting the distribution of drugs." United States v. Hernandez, 986 F.2d 234, 238 (8th Cir.1993).
As for Lee, five of his ten challenged counts of conviction were for distributing cocaine and aiding and abetting the same, while five were solely for aiding and abetting.
For similar reasons, we affirm Forest's and Royston's distribution convictions. In both instances, there was evidence allowing the jury to believe Forest and Royston participated in separate controlled buys of cocaine. The two confidential informants who made the controlled buys at issue testified Forest and Royston actively participated
To uphold Forest's and Royston's conspiracy convictions, there must be evidence from which a reasonable jury could conclude (1) "a conspiracy, i.e., an agreement to distribute" cocaine, existed; (2) Forest and Royston "knew of the conspiracy"; and (3) they "intentionally joined the conspiracy." United States v. Slagg, 651 F.3d 832, 840 (8th Cir.2011). "A formal agreement is not required to create a conspiracy, and the existence of a conspiracy can be proved by direct or circumstantial evidence." United States v. Bowie, 618 F.3d 802, 812 (8th Cir.2010) (quoting United States v. Williams, 534 F.3d 980, 985 (8th Cir.2008)) (internal quotation marks omitted). "[A] single conspiracy may exist even if the participants and their activities change over time, and even if many participants are unaware of, or uninvolved in, some of the transactions." Slagg, 651 F.3d at 840 (quoting United States v. Longs, 613 F.3d 1174, 1176 (8th Cir.2010)) (internal quotation marks omitted).
Both Forest and Royston argue there was insufficient evidence for the jury to conclude they voluntarily joined the conspiracy. Forest acknowledges there was evidence showing he knew other participants in the conspiracy and he independently sold drugs, but Forest asserts this is not enough to link him to the conspiracy. Similarly, Royston claims the "evidence did little more than prove [he] associated with individuals who were involved with the conspiracy." Forest and Royston understate the evidence.
Northern testified he brought Forest to Bismarck to provide security after one of the organization's dealers was robbed. According to Northern, Forest collected drug money for the organization and distributed cocaine. A confidential informant, Galen Smith, testified he first saw Forest during a confrontation with Lee about a drug deal, and later bought cocaine from Forest, who was selling on Lee's behalf. Rashad Jackson, who admitted selling cocaine for the organization, said he set up Forest with drug customers. Other witnesses said they either bought cocaine from Forest or observed him selling cocaine.
Northern testified Royston's involvement began when Royston sold relatively large quantities of cocaine to Northern and Lee on at least two occasions, with Lee and Northern paying approximately $5,600 each time. According to Northern, Royston later came from Minnesota to Fargo and distributed cocaine with Lee. Royston also helped Northern and Lee "cook up drugs ... in Bismarck." Other witnesses corroborated some of Northern's testimony, explaining they met Royston through Lee, and purchased cocaine from Royston.
From this evidence, it was reasonable for the jury to conclude both Forest and Royston knowingly and intentionally joined the conspiracy to distribute cocaine.
During the trial, the government presented evidence Royston was convicted in 1999 for possession of a controlled substance with intent to deliver in violation of Illinois law. Royston argues the district court abused its discretion by admitting the evidence because it "did nothing more than establish [his] propensity to commit a drug offense, which is exactly what [Fed. R.Evid.] 404(b) [is] intended to prohibit."
We next consider the district court's denial of Royston's motion for a new trial, which we also review for abuse of discretion. See United States v. Sturdivant, 513 F.3d 795, 802 (8th Cir.2008). A district court "may vacate any judgment and grant a new trial if the interest of justice so requires." Fed.R.Crim.P. 33(a). It is proper for the court to weigh the evidence and consider witness credibility when doing so, but such authority should be used cautiously and sparingly. See Sturdivant, 513 F.3d at 802. "The jury's verdict must be allowed to stand unless `the evidence weighs heavily enough against the verdict such that a miscarriage of justice may have occurred.'" Id. (quoting United States v. Johnson, 474 F.3d 1044, 1051 (8th Cir.2007)) (internal marks omitted). Royston argues he is entitled to a new trial because (1) Northern's testimony was incredible, and (2) the jury saw two transcripts that improperly identified him while the jury was listening to audio recordings of two controlled buys.
The district court determined the "interest of justice" did not require a new trial, because "there was sufficient evidence to justify the convictions on both counts." The district court highlighted testimony from four witnesses, including Northern, showing Royston participated with Lee in the conspiracy. The district court concluded "no miscarriage of justice occurred," explaining "Royston thoroughly cross-examined all witnesses at trial and the ... relevant witnesses' testimony was sufficiently credible." After reviewing the evidence, we reach the same conclusion.
We reject Royston's contention that comments the district court made about Northern's credibility during Royston's sentencing hearing show Royston is entitled to a new trial. Responding to comments Royston made challenging the evidence, the district court stated, "I understand what you're saying ... and I appreciate the argument that, look, you know, whatever Jake Northern said it's had [sic] to believe that anyone could have given it much weight, and [the jury] obviously didn't give it much weight in some instances and they apparently gave it more weight in other instances. And it doesn't make sense and I appreciate that argument." Viewed in context, the district court's comments appear to be merely an attempt to explain to Royston that the district court understood Royston's credibility argument. The district court's comments are entirely consistent with
We next consider Royston's claim that a new trial is necessary because the district court improperly allowed the inclusion of his name and initials on two transcripts displayed to the jury while the government played audio recordings of two controlled buys. Royston argues he "was entitled to have the jury consider Brown's testimony alone to determine if [Royston] was present." Although it appears from the undeveloped record on this issue that the use of these transcripts was not entirely proper, no reversible error occurred.
Both challenged transcripts — Court Exhibits E and G
The government concedes it was a mistake to include Royston's name and initials on Exhibit E. Including Royston's name and initials risked improperly suggesting to the jury that Royston was present during the first controlled buy, which the accompanying recording did not demonstrate. And the inclusion of Royston's initials on Exhibit G may have been improper because Officer Stuvland, who helped prepare the transcript, did not state he was familiar with Royston's voice nor did he positively identify the voice on the recording as Royston, although "MR" was listed on the transcript.
Royston did not raise this issue in his motion for a new trial, nor did he object to use of the transcripts with any specificity.
We conclude any error made by the district court was harmless and thus not reversible even under our typical abuse of discretion standard. See United
Id. at 894-95 (citations omitted).
Here, Brown testified Royston was present during both of the controlled buys. Royston made the jury aware the only direct evidence showing Royston's involvement in these controlled buys was Brown's testimony, which Royston vigorously challenged during cross-examination and closing arguments. "Finally, the transcripts were used only to assist the jurors as they listened to the recordings," and the district court adequately instructed the jurors twice "that the [audio recordings] were the best evidence, that the transcripts were merely an aid and that any discrepancies were to be resolved in favor of what was heard." United States v. Bentley, 706 F.2d 1498, 1508 (8th Cir.1983). We conclude no miscarriage of justice occurred as the result of the use of the transcripts, and thus affirm the district court's denial of a new trial.
The district court sentenced Forest and Royston on August 31, 2010, soon after the August 3 enactment of the FSA which, as relevant here, increased the quantities of crack cocaine needed to trigger statutory minimum sentences. The district court determined the FSA was not applicable, and therefore the district court was required to impose statutory mandatory sentences upon Forest and Royston because of the amount of cocaine base, or crack, the jury found their crimes involved. Forest and Royston argue the district court erred because the revised statutory penalties should have applied to their sentences, and ask us to remand their cases to the district court for resentencing pursuant to the FSA.
We thus vacate Royston's and Forest's sentences and remand for proceedings consistent with Dorsey and the FSA. The drug quantity range found by the jury no longer requires imposition of the same statutory mandatory sentences. The district court, upon resentencing, must address the FSA and the drug quantities involved in these cases, and our holding does not mean either Forest or Royston is entitled to a lesser, or any particular, sentence under the statutes or the advisory guidelines.
We affirm the district court's judgment and sentence as to Lee. As to Forest and Royston, we affirm their convictions, but vacate their sentences and remand for resentencing consistent with this opinion.
