from the United States District Court for the District of
Kansas (D.C. No. 2:12-CR-20083-KHV-2)
L. Bennett, Jr., Bennett & Hendrix, LLP, Topeka, Kansas,
N. Capwell, Assistant United States Attorney (Thomas E.
Beall, Acting United States Attorney, with her on the brief),
Office of the United States Attorney, Kansas City, Kansas,
LUCERO and BACHARACH, Circuit Judges. [*]
BACHARACH, Circuit Judge.
Roosevelt Dahda and 42 others faced criminal charges
involving the operation of a marijuana-distribution network
centered in Kansas. Roosevelt was convicted on ten counts, and
the district court sentenced him to 201 months'
imprisonment and ordered forfeiture in the amount of $16,
985, 250. On appeal, Roosevelt raises seven challenges to the
convictions and sentence:
1. The evidence was insufficient to prove the conspiracy
charged in count one, which involved 1, 000 kilograms or more
2. There was an unconstitutional variance between the single,
large conspiracy charged in count one and the trial evidence,
which showed numerous smaller conspiracies.
3. The district court erred in denying Roosevelt's motion
to suppress wiretap evidence.
4. The sentence of 201 months' imprisonment exceeded the
statutory maximum because the jury did not make a specific
finding on the quantity of marijuana involved in the
5. The district court erred in setting Roosevelt's
base-offense level by miscalculating the amount of marijuana
attributed to Roosevelt.
6. The district court's upward variance of 33 months was
7. The district court erred in entering a forfeiture
reject the challenges in 1-4 and 6-7. But we agree with the
fifth challenge, concluding that the district court
miscalculated the amount of marijuana attributed to
Roosevelt. Based on these conclusions, we affirm
Roosevelt's convictions but remand for resentencing.
Sufficiency of the Evidence
one charged Roosevelt with a conspiracy involving 1, 000
kilograms or more of marijuana. See 21 U.S.C.
§§ 841(a)(1), (b)(1)(A)(vii), 846, 856 (2012); 18
U.S.C. § 2. Roosevelt argues that the government
failed to prove that he had joined the large conspiracy
charged in count one. According to Roosevelt, the evidence
established only a number of smaller conspiracies.
decide whether the evidence of guilt sufficed, we engage in
de novo review, considering the evidence in the light most
favorable to the government to determine whether any rational
jury could have found guilt beyond a reasonable doubt.
United States v. Yehling, 456 F.3d 1236, 1240 (10th
Cir. 2006). We consider the direct and circumstantial
evidence but do not balance conflicting evidence or consider
the witnesses' credibility. Id.
prove a conspiracy, the government must show that (1) two or
more persons agreed to violate the law, (2) the defendant
knew the essential objectives of the conspiracy, (3) the
defendant knowingly and voluntarily participated in the
conspiracy, and (4) the alleged co-conspirators were
interdependent. United States v. Wardell, 591 F.3d
1279, 1287 (10th Cir. 2009). Determining the existence of a
single conspiracy involves a question of fact for the jury.
United States v. Dickey, 736 F.2d 571, 581 (10th
Cir. 1984). This question turns on the existence of a common,
illicit goal. Id. at 582.
on the trial evidence, we concluded in United States v.
Los Dahda that the evidence was sufficient to permit the
finding of a single conspiracy of 1, 000 kilograms or more of
marijuana. ___F.3d___, No. 15-3236, slip op., Part
II(A) (10th Cir. Apr. 4, 2017). Applying the same reasoning
here, we reject Roosevelt's argument that the evidence
established a number of smaller conspiracies rather than a
single large conspiracy.
remaining question is whether the evidence was sufficient to
show that Roosevelt joined the large conspiracy involving 1,
000 kilograms or more of marijuana. We conclude that the
evidence was sufficient based on six categories of evidence:
1. Roosevelt drove a truck with a hidden compartment, which
was used by the group to transport drugs and cash. R. vol. 1,
at 406-08; R. supp. vol. 4, Exhibit 704-05. When Roosevelt
drove the truck, the hidden compartment apparently contained
cash. Once Roosevelt arrived in California, he was to open
the compartment to remove the cash. Id.
2. Roosevelt relayed a request from Mr. Park for Los to
travel to Northern California to inspect some marijuana grow
operations. R. vol. 2, at 575; R. supp. vol. 4, Exhibit 823.
In relaying this request, Roosevelt commented that he had
seen some of the marijuana and that it "look[ed] very
lovely." R. supp. vol. 4, Exhibit 823.
3. Roosevelt sent boxes through the group's shipping
operation to Mr. Justin Pickel, who grew marijuana in
California. R. vol. 1, at 474; R. supp. vol. 4, Exhibit 753.
Roosevelt also agreed to send money to Mr. Pickel. R. vol. 2,
at 547-48; R. supp. vol. 4, Exhibit 794.
4. Roosevelt went to the group's Kansas warehouse to pick
up marijuana. R. vol. 3, at 1457-58.
5. In Kansas, Roosevelt sold pounds of marijuana that had
been sent from California, R. vol. 3 at 1231-50, 1260-62,
1293-95, 1606-07, 1612; R. supp. vol. 4, Exhibits 738, 767,
6. The day after the police seized approximately 37 pounds of
marijuana from Mr. Pickel, Roosevelt and Los discussed the
fact that they had lost "half of what [they] [had]
worked for" and that they had to be cautious when
"bring[ing] the rest of this back." R. supp. vol.
4, Exhibit 860.
this evidence and viewing it favorably to the government, we
conclude that a rational fact-finder could conclude beyond a
reasonable doubt that Roosevelt knowingly and voluntarily
participated in the large conspiracy. This conclusion would
have remained valid even if Roosevelt had occupied a
relatively minor role in the conspiracy. See United
States v. Caro, 965 F.2d 1548, 1556 (10th Cir. 1992)
("[A] defendant's participation in the conspiracy
may be slight and may be inferred from the defendant's
actions so long as the evidence establishes a connection to
the conspiracy beyond a reasonable doubt."). In
United States v. Anaya, for instance, the defendant
participated in a drug conspiracy only by installing hidden
compartments in vehicles. 727 F.3d 1043, 1051 (10th Cir.
2013). We held that the evidence was sufficient for
conviction on a conspiracy charge because the compartments
had been insulated to mask smells, the defendant had seen
$800, 000 in cash in one of the compartments, the
compartments' sizes had been measured in kilos, the
defendant and his customers had communicated in code, and the
defendant had been warned not to discuss the compartments.
Roosevelt might not have performed a major role in the
conspiracy. But the trial evidence was sufficient to show
that he (1) had agreed to violate the law, (2) had known that
the essential objective of the conspiracy was transportation
of marijuana from California to Kansas for resale in Kansas,
(3) had knowingly and voluntarily participated in the
conspiracy, and (4) had facilitated the conspiracy's
counters that the government did not prove interdependence
because he was unknown to several co-conspirators and the
conspiracy could have operated without him. These arguments
overstate what the government had to prove. The government
did not need to prove
• that Roosevelt knew or had connections with all other
members of the conspiracy or
• that Roosevelt was indispensable to the conspiracy.
See United States v. Foy, 641 F.3d 455, 465 (10th
Cir. 2011). "[R]ather, it is sufficient that [Roosevelt]
was an operational link within [the conspiracy]."
United States v Cornelius, 696 F.3d 1307, 1318 (10th
Cir. 2012). In light of the evidence, we conclude that the
evidence sufficed for a finding that Roosevelt had at least
been "an operational link" within the conspiracy.
* * *
in the light most favorable to the government, the evidence
was sufficient to establish (1) the existence of the single
conspiracy charged in count one and (2) Roosevelt's
participation in that conspiracy. We therefore reject
Roosevelt's challenge to the sufficiency of the evidence
on count one.
also urges a prejudicial variance between the conduct charged
in count one and the trial evidence. According to Roosevelt,
the evidence established only smaller conspiracies rather
than a single, large conspiracy.
the context of a conspiracy conviction, we treat a variance
claim as a challenge to the sufficiency of the evidence
establishing that each defendant was a member of the same
conspiracy." United States v. Gallegos, 784
F.3d 1356, 1362 (10th Cir. 2015). Viewing the challenge in
this manner, we engage in de novo review. United States
v. Caldwell, 589 F.3d 1323, 1328 (10th Cir. 2009).
de novo review, we rejected the same challenge by
Roosevelt's co-defendant in United States v. Los
Dahda, ___F.3d___, No. 15-3236, slip op., Part III (10th
Cir. Apr. 4, 2017). Based on that opinion, we reject