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United States v. Dahda

United States Court of Appeals, Tenth Circuit

April 4, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
ROOSEVELT RICO DAHDA, Defendant-Appellant.

         Appeal from the United States District Court for the District of Kansas (D.C. No. 2:12-CR-20083-KHV-2)

          Mark L. Bennett, Jr., Bennett & Hendrix, LLP, Topeka, Kansas, for Defendant-Appellant.

          Carrie 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, for Plaintiff-Appellee.

          Before LUCERO and BACHARACH, Circuit Judges. [*]

          BACHARACH, Circuit Judge.

         Mr. Roosevelt Dahda and 42 others faced criminal charges involving the operation of a marijuana-distribution network centered in Kansas. Roosevelt[1] 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 of marijuana.
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 conspiracy.
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 substantively unreasonable.
7. The district court erred in entering a forfeiture judgment.

         We 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.

         I. Sufficiency of the Evidence

         Count 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.[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.

         To 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.

         To 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.

         Based 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.[3] ___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.

         The 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, 772-74, 853-54.
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.

         Crediting 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. Id.

         Similarly, 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 objective.

         Roosevelt 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. Id.

* * *

         Viewed 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.

         II. Variance

         Roosevelt 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.[4]

         "In 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).

         Applying 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 ...


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