United States v. Cheatwood

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 15 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 00-6401
v. (W. D. Oklahoma)
SCOTT CHEATWOOD, (D.C. No. CR-99-42-T)

Defendant-Appellant.

ORDER AND JUDGMENT *

Before HENRY , McKAY , and GIBSON , ** Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties' request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f). The case is therefore submitted without

oral argument.

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

**
The Honorable John R. Gibson, Senior Circuit Judge for the Eighth
Circuit, sitting by designation.
 Scott Cheatwood was convicted after a jury trial of the following offenses:

(1) conspiring to manufacture methamphetamine with the intent to distribute (a

violation of 21 U.S.C. § 846); (2) possessing a firearm after conviction of a

felony (a violation of 18 U.S.C. § 922(g)(1)); (3) possessing equipment and

chemicals used to manufacture a controlled substance (a violation of 21 U.S.C. §

843(a)(6)); (4) possessing ephedrine/pseudoephedrine with the intent to

manufacture methamphetamine (a violation of 21 U.S.C. § 841(d)(1)); (5)

conspiring to effect an escape (a violation of 18 U.S.C. § 371); (6) aiding and

abetting an escape attempt (a violation of 18 U.S.C. § 752(a)); and (7) possessing

shotgun shell ammunition after a felony conviction (a violation of 18 U.S.C. §

922(g)(1)). The district court sentenced Mr. Cheatwood to concurrent terms of

imprisonment of 360, 180, 240, 240, 60, 60, and 180 months, respectively, on

each of these convictions. The court also ordered concurrent terms of supervised

release—ranging from three to six years—following Mr. Cheatwood’s release

from incarceration

On appeal, Mr. Cheatwood challenges the sufficiency of the evidence

supporting his conspiracy conviction and his conviction for possessing a firearm

after a former felony conviction. Additionally, Mr. Cheatwood argues that all of

his convictions should be vacated because the judge who was initially assigned to

the case—the Honorable Vickie Miles-LaGrange—served as a prosecutor during

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part of the investigation. Finally, Mr. Cheatwood advances several challenges

based on the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466

(2000).

For the reasons set forth below, we are not convinced by Mr. Cheatwood’s

arguments. Accordingly, we affirm his convictions and sentences.

I. BACKGROUND

Because the parties are familiar with the relevant facts, we summarize them

only briefly, viewing the record in the light most favorable to the government.

See United States v. Wilson, 107 F.3d 774, 778 (10th Cir. 1997). Between

December 1995 and October 1997, Mr. Cheatwood’s codefendants, Loy Chris

Stevens and Ewing Vise, manufactured and distributed methamphetamine in the

Oklahoma City area. Mr. Stevens and Mr. Vise typically engaged in two ‘cooks’

per month, which yielded from two ounces to two pounds of methamphetamine.

The principal manufacturing sites were the two men’s residences in the southwest

part of Oklahoma City.

Methamphetamine was produced at an outbuilding behind Mr. Stevens’

residence that witnesses called the “bunkhouse.” Witnesses described this

building as a small shed-like structure furnished with a day bed, television, chair,

desk, and air conditioning.

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 The government’s witnesses explained how the bunkhouse was used for the

conspiracy’s operations. Customers interested in purchasing methamphetamine

would approach from the front of Mr. Stevens’ property, through Mr. Stevens’

residence, or through an alley and a gate in back of the residence. Customer

traffic in and out of the bunkhouse area was constant, day and night. As many as

twenty-five people per day purchased methamphetamine there.

At trial, the government presented testimony indicating that Mr. Cheatwood

performed several roles in the enterprise: (1) he acted as a lookout when

methamphetamine was manufactured, sold, and used at the bunkhouse; (2) at the

direction of Mr. Stevens, he obtained ephedrine pills and other chemicals for Mr.

Stevens’ use in manufacturing methamphetamine; and (3) he assisted Mr. Stevens

in carrying chemicals, glassware, and filters between the bunkhouse and Mr.

Stevens’ residence. In exchange for performing these jobs, Mr. Cheatwood was

paid in-kind with one to three shots of methamphetamine per day.

Two government witnesses—Misty Word and Tiffany Davis—testified as to

Mr. Cheatwood’s possession of a firearm. They stated that, on August 27, 1997,

while Mr. Stevens and Mr. Cheatwood were visiting the residence of one of Mr.

Stevens’ customers named “Ray-Ray,” Mr. Cheatwood took a .380 pistol from his

vehicle and gave it to Mr. Stevens. Mr. Stevens then used the pistol to shoot Clay

Wilhoit, a former distributor, who was attacking Mr. Stevens’ truck with a

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baseball bat.

The government also presented testimony regarding Mr. Cheatwood’s arrest

on January 14, 1999, after he left Mr. Stevens’ apartment. The government’s

evidence indicated that Mr. Cheatwood had the following items in his car: coffee

filters containing ephedrine or pseudoephedrine, a bottle containing 133

ephedrine tablets, several large jars, tubing, and a gallon of toluene.

II. DISCUSSION

A. Sufficiency of Evidence Regarding Conspiracy Charge

Mr. Cheatwood first argues that the evidence is insufficient to support his

conviction for conspiring to distribute methamphetamine in violation of 21 U.S.C.

§ 846. In order to convict Mr. Cheatwood of this charge, the government was

required to prove the following elements beyond a reasonable doubt: “(1) an

agreement with another person to violate the law, (2) knowledge of the essential

objectives of the conspiracy, (3) knowing and voluntary involvement, and (4)

interdependence among the alleged conspirators.” United States v. Carter, 130

F.3d 1432, 1439 (10th Cir. 1997). Mr. Cheatwood focuses his challenge on the

fourth element, arguing that, in light of his relatively minor role in the

methamphetamine distribution scheme, the government failed to demonstrate the

necessary interdependence between his activities and those of the other

conspirators.

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 We examine the sufficiency of the evidence de novo. See Wilson, 107 F.3d

at 778. Evidence is sufficient to support a conviction if the record, viewed in the

light most favorable to the government, would allow a reasonable juror to find the

defendant guilty beyond a reasonable doubt. See id.

This circuit’s decisions have explained the element at issue here—the

interdependence between conspirators—in varying terms. Some decisions state

that “[i]nterdependence exists where each coconspirator’s activities constitute

essential and integral steps toward the realization of a common, illicit goal.”

Carter, 130 F.3d at 1440. Other decisions employ arguably broader language:

“[I]f the activities of a defendant charged with conspiracy facilitated the

endeavors of other alleged conspirators or facilitated the venture as a whole,

evidence of interdependence is present.” United States v. Horn, 946 F.2d 738,

740-41 (10th Cir. 1991).

Mr. Cheatwood argues that he lacked “a common, illicit goal” with the

other charged and uncharged members of the conspiracy to distribute

methamphetamine. According to Mr. Cheatwood, his goal in performing the

various acts surrounding the methamphetamine distribution scheme was merely to

obtain drugs for his personal use. In contrast, the goal of the charged conspiracy

was to manufacture and distribute methamphetamine for the purpose of making a

profit.

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 To show this lack of a common purpose, Mr. Cheatwood points to a wide

range of evidence. He notes that he did not share in the profits of the operation,

did not manufacture methamphetamine himself, did not become involved with the

other alleged leader of the conspiracy (Mr. Vise), and did not serve as a drug

distributor for Mr. Stevens. Mr. Cheatwood also points to several gaps in the

witnesses’ testimony: he asserts that no witnesses identified him as present

during any of the methamphetamine “cooks”, that the police witnesses never

identified him as being present at the bunkhouse, and that none of the witnesses

could testify to an actual instance when he acted as a lookout or warmed them of

police presence. Mr. Cheatwood adds that he did not even arrive in Oklahoma

City until March 1997, well after the charged conspiracy had begun to operate.

In challenging the sufficiency of the evidence, Mr. Cheatwood also invokes

cases involving individuals who have merely purchased drugs. For example, he

notes that in United States v. Evans, 970 F.2d 663 (10th Cir. 1992), this circuit

reversed a conviction of a defendant who was convicted of conspiracy to

distribute cocaine on the basis of evidence that she made a purchase from one of

the major figures in the operation, lent scales to two members of the conspiracy

with the knowledge that they would use the scales to weigh cocaine, and

purchased a small amount of cocaine from two other individuals. We stated that

“a consumer generally does not share the distribution objective and thus would

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not be part of the conspiracy to distribute crack cocaine.” Evans, 970 F.2d at 669.

(emphasis omitted).

We are not persuaded by Mr. Cheatwood’s argument. As the government

notes, the prosecution introduced evidence that Mr. Cheatwood performed several

tasks that assisted Mr. Stevens in the operation of a scheme to manufacture and

distribute methamphetamine. Witnesses testified that Mr. Cheatwood purchased

chemicals necessary for the manufacture of methamphetamine, used his car to

transport chemicals and equipment required for making methamphetamine, carried

the chemicals between the bunkhouse and Mr. Stevens’ residence from the

bunkhouse, and occasionally served as a lookout for the operation.

The variety of tasks that Mr. Cheatwood performed distinguishes this case

from those exonerating consumers of illegal drugs from conspiracy charges. See,

e.g, United States v. Dekle, 165 F.3d 826, 829-30 (11th Cir. 1999); United States

v. Brown, 872 F.2d 385, 390-91 (11th Cir. 1989). For example, in Brown, the

Eleventh Circuit reversed a conspiracy conviction of a defendant who had

consumed drugs, noting that “there was no evidence that the defendant turned

around and sold this cocaine or performed any errands or collections for his

supplier or otherwise assisted the ongoing ‘business.’” Dekle, 165 F.3d at 830

(discussing Brown, 872 F.2d at 390) (emphasis added). Here, the government did

produce such evidence.

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 Moreover, even if all of these activities arose out of Mr. Cheatwood’s

desire to satisfy his drug habit, that fact is not inconsistent with his sharing the

goals of the conspiracy. The cases on which Mr. Cheatwood relies do not

preclude a jury finding that he had more than one goal: satisfying his drug habit

and doing so by undertaking the variety of tasks that Mr. Stevens asked him to do.

See United States v. Heckard, 238 F.3d at 1222, 1230 (10th Cir. 2001)

(concluding that the evidence supporting a conspiracy conviction was sufficient

because the defendant’s actions “benefitted not only himself, but also [other

members of the conspiracy]”) (emphasis added).

Finally, the testimony of certain witnesses as to Mr. Cheatwood’s relatively

minor role is not dispostive. 1 “The defendant’s participation in or connection to

the conspiracy need only be slight, so long as sufficient evidence exists to

establish the defendant’s participation beyond a reasonable doubt.” United States

v. Johnston, 146 F.3d 785, 789 (10th Cir. 1998). In spite of the testimony

regarding his minor role, the government’s evidence provided the jury with

adequate grounds for concluding that Mr. Cheatwood actively participated in the

conspiracy.

1
As Mr. Cheatwood notes, these witnesses describe him as “just an old
man that hangs around just so someone will get him high,” as “just doing
whatever he could to get a shot of dope,” and as just doing “flunky-type stuff.”
See Rec. vol. IX, at 1669; vol. VIII, at 1477, 1578.

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 We therefore conclude that the evidence is sufficient to support a jury

finding that Mr. Cheatwood’s activities were “essential and integral steps toward

the realization of [the] common, illicit goal” of distributing methamphetamine,

Carter, 130 F.3d at 1440, and that Mr. Cheatwood’s activities “facilitated the

venture as a whole.” Heckard, 238 F.3d at 1230. Thus, the evidence is sufficient

to support his § 846 conspiracy conviction.

B. Sufficiency of Evidence Regarding Firearm Charge

Next, Mr. Cheatwood challenges the sufficiency of the evidence supporting

his conviction for possessing a firearm after conviction of a felony (a violation of

18 U.S.C. § 922(g)(1)). In order to convict Mr. Cheatwood of this offense, the

government was required to prove the following elements beyond a reasonable

doubt: (1) that Mr. Cheatwood was previously convicted of a crime punishable by

imprisonment exceeding one year; (2) that he thereafter knowingly possessed a

firearm; and (3) that the possession was in or affecting interstate or foreign

commerce. See United States v. Hishaw, 235 F.3d 565, 571 (10th Cir. 2000). Mr.

Cheatwood challenges only the second element.

As we have noted, two witnesses—Misty Word and Tiffany

Davis—testified that, on August 27, 1997, while Mr. Stevens and Mr. Cheatwood

were visiting the residence of one of Mr. Stevens’ customers named “Ray-Ray,”

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Mr. Cheatwood took a .380 caliber pistol from his vehicle and gave it to Mr.

Stevens. Mr. Cheatwood argues that Ms. Word and Ms. Davis are “highly

suspect drug addicts” who agreed to cooperate with the government. Aplt’s Br.

at 23. He adds that there were significant gaps in their memories: Ms. Davis

admitted that she did not recall how she arrived at Ray-Ray’s house and Ms. Word

appeared confused about whether Mr. Cheatwood retrieved the gun from the trunk

of his car or from Ray-Ray’s house. Also, both women admitted that they could

have been using drugs at the time, and neither one of them was sure about the

caliber of the weapon.

These deficiencies in the testimony of Ms. Word and Ms. Davis do not

establish that the evidence was insufficient to support Mr. Cheatwood’s §

922(g)(1) conviction. The fact that the witnesses were drug addicts does not

preclude a reasonable juror’s believing their testimony. See Tapia v. Tansy, 926

F.2d 1554, 1562 (10th Cir. 1991) (“Confused, self-contradicting testimony by a

drug addict does not make the witness’s testimony inherently incredible.”); United

States v. Martinez, 877 F.2d 1480, 1482 (10th Cir.1989) (impeachment of witness

as a drug addict or as possessing emotional problems is a question of credibility

for the jury). Significantly, the district court instructed the jury that it should

view with great caution the testimony of drug addicts and informers who had

reached agreements with the government. See Rec. vol. I doc. 353 (Instructions

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19, 22, and 24).

Finally, Mr. Cheatwood’s attorney vigorously cross-examined Ms. Word

and Ms. Davis and noted these deficiencies in their testimony. The credibility of

their testimony regarding Mr. Cheatwood’s possession of a firearm was a factual

question for the jury to determine and may not be revisited by this court on

appeal. See United States v. Haslip, 160 F.3d 649, 653 (10th Cir. 1998). In light

of their testimony and Mr. Cheatwood’s opportunity to challenge their credibility

through cross-examination, we conclude that the evidence is sufficient to support

his conviction for violating 18 U.S.C. § 922(g)(1)).

C. Recusal

This case was initially assigned to the Honorable Vicki Miles-LaGrange.

During the pretrial proceedings, the parties discovered that, while Judge Miles-

LaGrange served as United States Attorney for the Western District of Oklahoma,

the Bureau of Alcohol, Tobacco, and Firearms investigated and served a search

warrant on one of Mr. Cheatwood’s codefendants. At the time, the United States

Attorney’s Office had general supervisory responsibilities over this investigation.

Mr. Cheatwood filed a motion requesting Judge Miles-LaGrange to recuse.

She granted the motion, and the case was transferred to The Honorable Ralph G.

Thompson, who conducted the subsequent pretrial proceedings as well as the trial

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and sentencing. Before Judge Miles-LaGrange granted the recusal motion, she

ruled on the following motions filed by Mr. Cheatwood: (a) a motion to

bifurcate; (b) a motion to suppress; (c) a motion for severance; and (d) a motion

for exclusion of evidence pursuant to Fed. R. Evid. 404 (b). In each instance,

Judge Miles-LaGrange denied the relief requested by Mr. Cheatwood.

Mr. Cheatwood now argues that Judge Miles-LaGrange should have

recused when the case was first assigned to her. He maintains that the fact that

she ruled on his four motions warrants a new trial.

Mr. Cheatwood’s recusal argument is based on 28 U.S.C. § 455, which

provides, in part:

(a) Any justice, judge, or magistrate of the United States
shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following
circumstances:

(1) Where he has a personal bias or prejudice
concerning a party, or personal knowledge of disputed
evidentiary facts concerning the proceeding;

(2) Where in private practice he served as lawyer in
the matter in controversy, or a lawyer with whom he
previously practiced law served during such association as
a lawyer concerning the matter, or the judge or such
lawyer has been a material witness concerning it;

(3) Where he has served in governmental
employment and in such capacity participated as counsel,
adviser or material witness concerning the proceeding or

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 expressed an opinion concerning the merits of the
particular case in controversy;

(emphasis added). Mr. Cheatwood contends that recusal was required under § 455(a)

and (b)(3).

As the government notes, this circuit has read §455(b)(3) narrowly. In United

States v. Gipson, 835 F.2d 1323 (10th Cir. 1988), the court ruled that a district judge

had not “participated as counsel” in a prior prosecution against defendant merely

because he held the office of United States Attorney when the defendant was first

prosecuted:

[T]he word “participated” implies a higher degree of
activity than simply being “of counsel.” The latter
association with a case arises simply because the
prosecutor holds his office. One need do nothing to be “of
counsel.” “Participation” connotes activity, however. One
cannot “participate” without doing something. Thus,
simple logic dictates the conclusion that in reordering the
language of the statute upon which recusal is based and
distinguishing between situations in which recusal is
mandated, Congress has implicitly drawn a line. In our
opinion, before the presumption arises that a judge is in
fact partial because of his past conduct as an attorney, a
party seeking disqualification must show that the judge
actually participated as counsel. Mandatory
disqualification then is restricted to those cases in which
a judge had previously taken a part, albeit small, in the
investigation, preparation, or prosecution of a case.

835 F.2d at 1326.

Here, Mr. Cheatwood has made no showing that Judge Miles-LaGrange

actually participated in the investigation. Thus, he has failed to establish that she

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was required to recuse under § 455 (b)(3) (second emphasis added).

That leaves § 455(a), which directs a judge to recuse if her “impartiality

might reasonably be questioned.” However, because Judge Miles-LaGrange did

recuse when she was asked to do so, Mr. Cheatwood may only prevail if he can

demonstrate that Judge Miles-LaGrange was required to recuse sua sponte when

she was first assigned to the case.

On this point, Mr. Cheatwood has failed to provide any supporting

authority. More importantly, even assuming that Judge Miles-LaGrange should

have recused at the beginning of the case, her failure to do so is subject to

harmless error analysis. See, e.g., Parker v. Connors Steel Co., 855 F.2d 1510,

1525 (11th Cir. 1988) (concluding that a district judge’s failure to recuse because

his impartiality might reasonably be questioned was harmless because the district

court’s summary judgment ruling was proper); In re Continental Airlines Corp.,

901 F.2d 1259, 1263 (5th Cir. 1990) (same); see also United States v. Vespe, 868

F.2d 1328, 1342 (3d Cir. 1989) (stating that, if district court had abused its

discretion in refusing to disqualify, the error would have been harmless because

the district court’s ruling on motion for judgment notwithstanding verdict was

subject to plenary review on appeal). Here, Mr. Cheatwood has not argued that

Judge Miles-LaGrange’s rulings were incorrect on the merits or that another judge

probably would have decided the motions differently. Thus, assuming, without

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deciding, that Judge Miles-LaGrange erred in not recusing from the case when it

was first assigned to her, we conclude that any such error was harmless.

D. Apprendi Challenges

Mr. Cheatwood argues that his conspiracy conviction should be reversed

because the superseding indictment did not specify the amount of

methamphetamine involved in the offense. His argument is based on the Supreme

Court’s ruling in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), that “other

than the fact of a prior conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a jury and proved

beyond a reasonable doubt.”

Here, Mr. Cheatwood was sentenced within the statutory range for

individuals with prior felony convictions who commit an offense involving

unspecified amounts of drugs. See 21 U.S.C. § 841(b)(1)(C) (providing that a

defendant who manufactures, distributes, or possesses with intent to distribute a

schedule I or II controlled substance shall be sentenced to a term of imprisonment

of not more than twenty years, or more than thirty years if previously convicted of

a drug offense). As a result, under circuit precedent applying Apprendi, reversal

of his conviction is not warranted. See United States v. Thompson, 237 F.3d

1258, 1262 (10th Cir. 2001) (concluding that reversal is not warranted under

Apprendi if the defendant is sentence within the statutory range for offenses

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involving unspecified drug amounts). 2

In a related argument, Mr. Cheatwood contends that his § 922(g)(1)

conviction for possession of a firearm is also invalid in light of Apprendi. He

maintains that the government was required to allege his prior conviction in the

superseding indictment and prove it to the jury beyond a reasonable doubt.

As Mr. Cheatwood concedes, this argument is inconsistent with the

Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224

(1998). See Aplt’s Br. at 30 (acknowledging that, Almendarez-Torres, the Court

held that “prior felony convictions are mere sentence enhancements, not elements

of an offense and thus do not need to be charged in the indictment or proven

beyond a reasonable doubt”). Almendarez-Torres is binding precedent, and we

are bound to follow it. See United States v. Dorris, 236 F.3d 582, 587-88 (10th

Cir. 2000). We therefore conclude that the government’s failure to allege Mr.

Cheatwood’s prior conviction in the superseding indictment does not render it

invalid.

2
In fact, Mr. Cheatwood concedes this point. See Aplt’s Br. at 28 (stating
that “[t]he district court’s decision was in accord with this Court’s post-Apprendi
rulings”). Mr. Cheatwood explains that he has advanced this argument for the
purpose of preserving his right to seek Supreme Court review of this issue.

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 V. CONCLUSION

For the reasons set forth above, we therefore AFFIRM Mr. Cheatwood’s

convictions and sentences.

Entered for the Court,

Robert H. Henry
United States Circuit Judge

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