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NOV 24 1999
PATRICK FISHER
TENTH CIRCUIT
Clerk
No. 97-6345
Mr. Emmett Franklin McSwain was convicted after a jury trial of one count
United States
denied , 119 S.Ct. 2371 (1999). He also argues (5) that if the CCE conviction is
upheld, the conspiracy conviction should be vacated as a lesser included offense
or, in the alternative, that he received an improper sentence on the dual object
conspiracy count. Finally, (6) he raises three issues in a pro se supplemental
brief. For the reasons set forth below, we affirm the CCE conviction, the Travel
Act convictions, the PCP convictions, and the tax convictions. We REVERSE
I. BACKGROUND
This case involves an Oklahoma-based piperidine and phencyclidine (PCP)
distribution network. In 1986, the government charged Mr. Emmett McSwain
along with eight others in a thrity-one count indictment. His codefendants (with
the exception of one) were tried in 1986. Mr. McSwain was not tried then
because he had escaped from a prior term of custody and remained a fugitive.
Mr. McSwain was re-arrested in 1996 and tried in 1997. His ex-wife, Ms.
Linda Jean Williams,
testified that Mr. McSwain had been incarcerated in August 1982 for conspiracy
to manufacture PCP.
time and at her husband's direction, she arranged for Mr. Roger Strader, Mr.
Walter Roberts, and Mr. Ronnie McSwain (Mr. Emmett McSwain's brother) to
make shipments to California of piperidine, a precursor chemical to PCP.
See id.
Mr. McSwain's ex-wife, Linda Jean, had changed her last name to Williams by
the time of trial. We therefore refer to her as Ms. Williams throughout the opinion.
She should not be confused with Ms. Linda Sue McSwain, the wife of Emmett
McSwain's brother, Ronnie. Nor should she be confused with the buyer, Mr. James
Williams.
2
at 97-98. She set up a speaker phone system so Mr. McSwain could communicate
with others by phone from prison.
ledger and cash box related to the deliveries at the home of Ronnie McSwain and
his wife, Linda Sue.
relationship between Mr. McSwain and his codefendant Louie Paul Baez, Sr. and
Mr. Baez's wife Marilyn. Finally, she testified as to various piperidine sales she
had made to certain buyers.
taught him and Mr. Roberts how to make PCP, and the three made a batch.
See
he made PCP with Mr. Roberts and Mr. Estes and recalled taking one trip to
deliver piperidine with Mr. Estes.
got part of the money on the PCP we made. He didn't get any for making the
4
he had made
stated Mr. Strader had paid him $500 for each trip and had paid his expenses.
See id. Other than that, Mr. Estes stated he had had nothing to do with the
money. See id. at 216. He testified that he accompanied Mr. Strader to pick up a
barrel and deliver it to Ronnie McSwain's house.
met Mr. Emmett McSwain only once,
Williams only once as well.
Ms. Linda Sue McSwain (Ronnie McSwain's wife) testified that the ledger
and cash box were kept at her house, and confirmed she had gone to California.
See Rec. vol. VI, at 294-95. But, she denied having done anything illegal for Mr.
McSwain and gave innocent explanations for her actions.
As to the buyers, Ms. Guillard testified that she bought ten to fifteen
gallons of piperidine from Ms. Williams from late 1982 through 1984.
5
See Rec.
vol. V, at 147. She testified that the price was always the same, and she would
simply let Ms. Williams know when she wanted to buy some.
She always paid in full, either in cash or by giving Ms. Williams furs, jewelry or
cars. See id. at 107-09 (Ms. Williams testimony), 148 (Ms. Guillard's
testimony).
Ms. Guillard's husband, A.J. Guillard, was incarcerated with Mr. McSwain
in El Reno and had friends in New Orleans who wanted to obtain piperidine.
See
id. at 170. He testified that he discussed this with Mr. McSwain, who claimed to
have access to piperidine through his wife.
Mr. McSwain indicated the operation was his. Mr. Gulliard made two deals with
Mr. McSwain for gallon quantities on behalf of his friends.
Id. at
171, 174.
Wanda Lewis testified that she spoke to Linda and had a discussion with
someone in Oklahoma regarding the cost and arrangements for one longdistance delivery of piperidine.
See id. at
also known as
Unc) purchased six to eight barrels from her, sometimes by the gallon and
Mr. Williams bought by the barrel, which cost $110,000, he wouldn't always
have that much money, so he would pay over time.
Id. at 81-82.
A special agent, James A. Dockery, who had investigated the case for the
DEA also testified. He stated that, in his opinion, Mr. McSwain and Ms.
Williams were chiefly responsible for the sale of piperidine.
336.
After a four-day trial, a jury convicted Mr. McSwain on all counts. He was
sentenced to concurrent, pre-guideline sentences of fifteen years imprisonment on
the CCE count, ten years on the conspiracy and phencyclidine counts, five years
on the Travel Act counts, and one year on each tax count. The court also
imposed a special term of parole of two years on the phencyclidine count.
II. DISCUSSION
A.
support a conviction, see United States v. McDermott , 64 F.3d 1448, 1457 (10th
Cir. 1995), asking 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 a reasonable doubt.
United States v.
Apodaca , 843 F.2d 421, 425 (10th Cir. 1988) (quotation omitted). [T]he
evidence presented to support the conviction must be substantial; that is, it must
do more than raise a mere suspicion of guilt.
14 F.3d 1469, 1472 (10th Cir. 1994).
management , and
(B) from which such person obtains substantial income or resources.
21 U.S.C. 848(c) (emphasis added).
In considering 848, we give the operative terms organizer,
supervisor, and manager their nontechnical, everyday meanings.
See United
Id.
Further, [t]he defendant's relationships with the other persons need not have
existed at the same time, the five persons involved need not have acted in concert
at the same time or with each other, and the same type of relationship need not
exist between the defendant and each of the five.
Id.
1.
First, Mr. McSwain apparently and correctly does not contest that the
evidence was sufficient to show the necessary managerial relationship as to
Walter Roberts, Roger Strader, and Ronnie McSwain. With respect to Mr.
Roberts and Mr. Strader, both testified that Mr. McSwain taught them to make
PCP before he was incarcerated, and that they transported piperidine for him at
that time. See Rec. vol. V, at 185-88; 228-46. They testified they continued to
transport piperidine intrastate and interstate and collected payments for him after
his incarceration at the direction of his wife, Ms. Williams.
188, 246. Ms. Williams testified she dealt with both at the direction of Mr.
McSwain. See id. at 96-97.
With respect to Ronnie McSwain, the testimony of Mr. Roberts, Mr.
Strader, and Ms. Williams showed that he had also transported multiple gallons
and barrels of piperidine intra- and interstate,
collected payments for the shipments.
and Mr. Estes testified they had dropped a barrel of piperidine at Ronnie
McSwain's house.
See id. at 215, 252, 255. Ms. Williams testified she kept the
drug transaction ledger and cash box at Ronnie's house, and that Ronnie had
access to both, explaining specific ledger entries showing Ronnie had taken
withdrawals from the cash box to pay for expenses related to the piperidine
11
distribution. See id. at 64, 83-84. This evidence is sufficient to enable a rational
trier of fact to find beyond a reasonable doubt that he managed Mr. Roberts, Mr.
Strader, and Mr. Ronnie McSwain.
2.
Ms. Williams
Mr. McSwain argues that the jury could not have considered Ms. Williams
because the indictment charged Mr. McSwain and Ms. Williams with acting in
concert with at least five
added). He argues that to allow consideration of Ms. Williams among the other
people would amount to an impermissible constructive amendment of the
indictment. We disagree.
The indictment does not limit the class of individuals from which the five
other persons might be drawn. Therefore, it does not expressly preclude
12
See
id. at 94-95. She set up a speaker phone system so that Mr. McSwain could
communicate with others from prison.
and Mr. Strader testified that, after Mr. McSwains incarceration, they dealt with
Mr. McSwain through Ms. Williams.
a rational jury could infer that Mr. McSwain had the requisite managerial
relationship with her.
3.
At trial, Ms. Williams testified that she kept a ledger, in which she
recorded cash withdrawals and deposits, and a cash box at Ronnie and Linda Sue
McSwains house.
See Rec. vol. IV, at 62, 64. Ms. Williams testified that Ms.
McSwain had access to both the ledger and cash box and that Ms. McSwain had
made entries in the ledger.
also testimony that some piperidine was stored on the McSwain's property.
From this testimony, we conclude that a rational jury could have found the
necessary managerial relationship between Mr. and Ms. McSwain. Although Ms.
McSwain had innocent explanations for her participation and it was implied to
the jury that she was acquitted of a conspiracy charge in the original trial, we are
prohibited from reweighing the evidence.
1013 (10th Cir.1996). On the testimony presented, the jury could have
disregarded her explanations as not credible and accepted governments evidence
of her involvement. Accordingly, we hold that the evidence was sufficient and a
rational jury could have counted Ms. McSwain toward the CCE requirement that
Mr. McSwain organized, supervised, or managed five other people.
14
4.
Conclusion
B.
Jury Instruction
Mr. McSwain argues that the district court's failure to
56 F.3d 1087, 1097 (9th Cir. 1994) (reversing CCE conviction where jury was
not given such an instruction). However, in light of Mr. McSwains failure to
adequately raise the issue in the district court proceedings, we conclude that the
district courts instructions do not warrant reversal.
[I]t is the defendants responsibility to take steps to see that the arguments
he would make in the appellate court are adequately preserved at trial.
United
States v. Roman , 870 F.2d 65, 72-72 (2d Cir. 1989). In the CCE context, it is
incumbent on the defendant to request an instruction that the jury is not to
consider those persons as to whom he regards the evidence of supervision as
15
insufficient or at the very least to make an explicit objection to the trial courts
instructing the jury that it may consider such persons.
As an alternative, the defendant may preserve his claim that certain bases are
impermissible by requesting that the jury be given interrogatories that will
require it to identify the basis for its verdict if that verdict is one of guilt.
Id.
Mr. McSwain did not take either of these steps. Moreover, he did not object to
the instructions that were given. Thus, he raises this issue for the first time on
appeal. Consequently, we can only reverse if he shows that there is: (1) error,
(2) that is plain, and (3) that affect[s] substantial rights. Fed. R. Crim. P.
52(b); United States v. Duran , 133 F.3d 1324, 1330 (10th Cir. 1998). If all
three conditions are met, an appellate court may then exercise its discretion to
notice a forfeited error, but only if (4) the error seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.
Id.
Applying this standard, we cannot say that the district court committed
plain error by failing to instruct the jury as to which individuals could not be
considered CCE supervisees. The prosecution submitted testimony and evidence
concerning the participation of each of the individuals it argued could be
considered for five persons necessary to trigger the CCE statute. The
determination of whether a person was organized or supervised is necessarily
a factual conclusion, and it is the role of the jury to make such factual
determinations.
See United States v. Dillard , 43 F.2d 299, 307 n.8 (7th Cir 1994)
Moreover, the district court instructed the jury on the definition of organizer /
supervisor for CCE purposes and correctly gave
a unanimity instruction,
36) (emphasis in original). [We] presum[e] that jurors, conscious of the gravity
of their task, attend closely the particular language of the trial court's instructions
in a criminal case and strive to understand, make sense of,
instructions given them . Olano , 507 U.S. at 740 (emphasis added) (quoting
Francis v. Franklin , 471 U.S. 307, 324, n.9 (1985));
OBrien , 131 F.3d 1428, 1432 (10th Cir. 1997) (holding that so long as the
district court gave a general unanimity instruction and there was not a realistic
possibility of jury confusion concerning the acts which support a defendants
CCE conviction, the court will assume that the jury understood it must be
unanimous on the specific findings underlying its verdict).
For these reasons, we conclude that
the jury as to which, if any, persons could not have been considered for Mr.
McSwains CCE conviction was not plain error.
Arbrego , 141 F.3d 142, 165-67 (5th Cir. 1998) (rejecting the defendants
argument that the instructions failure to inform the jury that certain individuals
could not be CCE supervisees constituted plain error);
United States v.
Wilkinson , 754 F.2d 1427, 1432 (2d Cir. 1985) (rejecting, in light of her failure
to raise the issue at trial, the defendants argument that if there was insufficient
evidence to find that any one of the individuals referred to in the indictment was
18
C.
Admission of Testimony
Mr. McSwain challenges the district courts decision to admit the
See United
States v. Sneed , 34 F.3d 1570, 1581 (10 th Cir. 1994). The court's ruling cannot
be overturned unless it is manifestly erroneous.
Co. , 370 U.S. 31, 35 (1962);
(10th Cir. 1995). Because Mr. McSwain did not object below, we review his
claim for plain error.
19
Id.
1989). Given the complexity of the piperidine distribution network, the average
person's unfamiliarity with the workings of that network and the number of people
involved with it, it was well within the discretion of the trial judge to permit
such testimony on the theory that [Agent Dockery's] specialized knowledge would
20
Id. at 1474.
We also agree that the testimony was properly admitted under Fed. R. Evid.
704, which allows for the admission of opinion testimony even though it
embraces an ultimate issue to be determined by the trier of fact.
Through Evans v. Independent School Dist. No. 25
A.E. By and
1991) (citations omitted). Mr. McSwain maintains that Agent Dockery's reference
to the indictment impermissibly told the jury what result to reach. We disagree.
Agent Dockery's testimony did not overstep the bounds of permissible expert
testimony because it addressed a specific factual question: that is, Mr. McSwain's
involvement in the piperidine scheme.
(10th Cir. 1988) (concluding that the [expert] witness did not invade the courts
authority by discoursing broadly over the entire range of the applicable law
because his testimony focused on a specific question of fact). Moreover, the
testimonys probative value in explaining the piperidine distribution network
outweighed any potential for prejudice.
D.
Singleton claim
Mr. McSwain also argues on appeal that the prosecutor violated 18 U.S.C.
21
United
E.
F.
to supplement the record on appeal. After reviewing the brief, we find his
arguments to be without merit. First, there is no Speedy Trial Act violation as
Mr. McSwain waived his right to a speedy trial on April 7, 1997.
doc. 397 (District Court Record). Second, Mr. McSwain was not denied due
process when indicted on PCP offenses because the term PCP was used
synonymously with phencyclidine at least as early as 1973.
22
at 176, 221.
Most importantly, the court gave a cautionary instruction during the trial as
to the very limited purpose to which you can put evidence of the conviction of a
witness for an offense in which a charge also is lodged against the defendant. It's
proper for consideration on the issue of the credibility of the witness; it may not
be used as a basis for drawing any inferences as to the guilt of the defendant.
Rec. vol. V, at 181. And, in its final instructions to the jury, the court again
23
cautioned the jury that [t]he possible guilt of others should enter into your
deliberations only on the question of whether the government has proved beyond
a reasonable doubt that a defendant in the case committed the crimes charged.
See Rec. vol. I, doc. 415 (Jury Instruction No. 9). These instructions cured any
potential prejudice.
See United States v. Sanders , 929 F.2d 1466, 1470 (10th Cir.
Cir. 1994) (citation omitted). Moreover, we are not in grave doubt as to whether
it had such effect.
Id. at 1526.
III. CONCLUSION
For the foregoing reasons, we AFFIRM Mr. McSwains convictions for
engaging in a continuing criminal enterprise, engaging in interstate travel to
facilitate narcotics distribution, possessing PCP and piperidine with the intent to
24
distribute it, and failing to file federal income tax returns. However, we
REVERSE and REMAND with instructions to VACATE Mr. McSwains
conviction and sentence as to the narcotics conspiracy count. The motion to
supplement the record is GRANTED. Because we conclude that the district court
should vacate Mr. McSwains conspiracy convictions, we do not address his
challenge to his sentence on that charge.
25