[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12160 ELEVENTH CIRCUIT
FEBRUARY 23, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-00022-CR-5-RS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELIJAH JAMES CHISOLM,
a.k.a. Jamie,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(February 23, 2010)
Before BARKETT, HULL and FAY, Circuit Judges.
PER CURIAM:
Elijah James Chisolm appeals his convictions and sentences for conspiracy
to distribute and possession with intent to distribute cocaine base1. He first argues
that there was insufficient evidence presented at trial to sustain his convictions.
Second, Chisolm argues that the district court improperly admitted, under Federal
Rule of Evidence 404(b), testimony regarding his prior bad acts. Finally, Chisolm
argues that the district court erred in sentencing him to a term of life imprisonment,
based upon a sentencing enhancement under 21 U.S.C. § 851(a).
I. Sufficiency of the evidence
We view the evidence in the light most favorable to the government to
determine if it was sufficient to support Chisolm’s convictions. United States v.
Hernandez, 433 F.3d 1328, 1333 (11th Cir. 2005).
A. Count 1: Conspiracy (21 U.S.C. § 846) and Possession with the
Intent to Distribute (21 U.S.C. § 841(a)(1))
To sustain a conviction for conspiracy for possession with intent to
distribute a controlled substance, the government must prove beyond a reasonable
doubt that (1) an illegal agreement to possess a controlled substance with the intent
1
Chisolm was convicted of the following counts: (1) conspiracy to distribute and
possession with intent to distribute cocaine base more than 50 grams of cocaine base with
Jonathan Cellen Bolware, Floyd Kimball, and “other persons,” between April 17, 2006, and June
3, 2008, in violation of 21 U.S.C. §§ 846, 841(a)(1), and (b)(1)(A)(iii) (“Count 1”);
(2) distribution of more than 50 grams of cocaine base on July 20, 2006, in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(A)(iii) (“Count 2”); (3) 2 counts of distribution of more than 5
grams of cocaine base on April 10, 2008, and April 11, 2008, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(B)(iii) (“Counts 5 and 6”); and (4) distribution of cocaine on April 24,
2008, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (“Count 7”).
2
to distribute it existed; (2) the defendant knew of it; and (3) the defendant,
knowingly and voluntarily joined it. 21 U.S.C. §§ 841(a)(1), 846; see Hernandez,
433 F.3d at 1333. “To satisfy this burden, the government need not prove that the
defendant knew all of the details or participated in every aspect of the conspiracy.
Rather, the government must only prove that the defendant knew the essential
nature of the conspiracy.” United States v. Miranda, 425 F.3d 953, 959 (11th Cir.
2005) (quotation and alterations omitted). “Because the crime of conspiracy is
predominantly mental in composition, it is frequently necessary to resort to
circumstantial evidence to prove its elements.” United States v. Arias-Izquierdo,
449 F.3d 1168, 1182 (11th Cir. 2006) (citation omitted). “While the existence of a
simple buyer-seller relationship alone does not furnish the requisite evidence of a
conspiratorial agreement, an agreement to distribute drugs may be inferred when
the evidence shows a continuing relationship that results in the repeated transfer of
illegal drugs to a purchaser.” Thompson, 422 F.3d at 1292 (citation, quotation
marks, citation, and alteration omitted).
Here, the evidence was sufficient for a reasonable jury to find Chisolm
guilty beyond a reasonable doubt of conspiracy to distribute and possession with
intent to distribute more than 50 grams of cocaine base with Bolware, Kimball, and
“other persons,” between April 17, 2006, and June 3, 2008 beyond a reasonable
3
doubt. The evidence established that Chisolm, Bolware, Kimball, and others had
conspired to do so as: (1) Bolware and Chisolm were cousins and partners, who
pooled their money to buy powder cocaine and split their profits equally; (2)
Chisolm introduced Bolware to his cocaine suppliers in Dothan and Atlanta; (3)
Chisolm and Bolware would travel together to buy the cocaine with Bolware
transporting the money and cocaine in his car and Chisolm driving a surveillance
car to look out for law enforcement; (4) Bolware would “cook” the powder
cocaine into cocaine base (i.e. crack cocaine) in Kimball’s shed on Bolware’s
mother’s property while Chisolm was present; (5) Chisolm and Bolware paid
Kimball with cocaine base for the use of his shed and his assistance in cleaning and
hiding the glassware used to “cook” the cocaine into base; (6) Kimball tested the
quality of the cocaine base for Chisolm and Bolware; (7) Bolware sold cocaine
powder and base and maintained custody of the money; (8) Kimball delivered
drugs to customers and would stand guard when Chisolm delivered drugs; (9)
Chisolm counted the money; and (10) Chisolm would also deliver drugs to
customers.
The evidence established that more than 50 grams of cocaine base was
involved in the conspiracy because: (1) for each drug purchase Bolware and
Chisolm made from a dealer named Alton over the course of six or seven months,
4
they purchased approximately one-half of a kilogram of cocaine to split; (2)
Bolware and Chisolm also purchased cocaine powder from an individual named
“B” on 20 to 40 different occasions, and Bolware estimated that they received over
50 kilograms of cocaine from “B”; and (3) McCloud testified that on
approximately 20 occasions from January through June 2006, he would buy 4 or 5
crack cocaine “cookies,” which were approximately 21 to 23 grams each, from
Chisolm and Bolware.
This evidence was sufficient for a reasonable jury to find beyond a
reasonable doubt that Chisolm conspired to distribute and possess with intent to
distribute more than 50 grams of cocaine base between April 17, 2006, and June 3,
2008. See Hernandez, 433 F.3d at 1333; Thompson, 422 F.3d at 1292 (holding
that sufficient evidence supported conspiracy because the government established
“the existence of a continuing relationship between Mr. Stratton and Ms.
Thompson in which Mr. Stratton would supply Ms. Thompson cocaine, the bulk of
which she would distribute to customers”).2 Because the evidence was sufficient
2
Chisolm submits that Bolware’s testimony was incredible as matter of law because
Bolware testified that he and Chisolm on occasion would drive to Dothan, which was
approximately 100 miles away, once or twice a day and yet would still have time to sell drugs.
However, Bolware testified that he rarely went to Dothan twice in one day and that he
sometimes would have a buyer lined up to give drugs to immediately upon his return. This
testimony is not incredible as matter of law because driving 400 miles in a day and dropping
something off to someone who was waiting for it is not an impossible event. See United States
v. Thompson, 422 F.3d 1285, 1291-92 (11th Cir. 2005) (citation and alteration omitted) (holding
that a witness’s testimony is “incredible as a matter of law” if the witness testifies “as to facts
5
for a reasonable jury to find Chisolm guilty of Count 1 beyond a reasonable doubt,
this Court should affirm Chisolm’s conviction as to Count 1.
B. Counts 2, 5, 6, and 7: Distribution of a Controlled Substance (21
U.S.C. § 841)
Chisolm also was charged with (1) distribution of more than 50 grams of
cocaine base on July 20, 2006 (Count 2); (2) 2 counts of distribution of more than
5 grams of cocaine base on April 10, 2008, and April 11, 2008 (Counts 5 and 6);
and (3) distribution of cocaine on April 24, 2008 (Count 7).
With respect to Count 2, the evidence presented at trial established that: (1)
on July 20, 2006, to set up a controlled buy as part of his cooperation with law
enforcement, Jarvarus Taylor telephoned Chisolm to buy cocaine base because
Chisolm had been and was his source of cocaine base; (2) Chisolm told him to call
Bolware, who Taylor did not know prior to that point; (3) later that day, Taylor
made a controlled buy of cocaine base at Bolware’s mother house; and (4) the
cocaine base recovered was 55.2 grams and 39% pure. This was sufficient for the
jury to conclude beyond a reasonable doubt that Chisolm distributed more than 50
grams of cocaine base on July 20, 2006.
The evidence presented at trial with respect to Counts 5 (distribution of more
that the witness could not have possibly observed or events that could not have occurred under
the laws of nature.”
6
than 5 grams of cocaine base on April 10, 2008), 6 (distribution of more than 5
grams of cocaine base on April 11, 2008), and 7 (distribution of cocaine on April
24, 2008) was sufficient to sustain Chisolm’s convictions. Dewayne Lamar
Johnson, who was cooperating with law enforcement, set up three controlled buys
of cocaine base with Chisolm. On April 10, 2008, Johnson made a controlled buy,
which was recorded on audio and video, of 19.6 grams of 37.2% pure cocaine base
for $900 from Chisolm. On April 11, 2008, Johnson made another controlled buy,
which was recorded on video, of 20.5 grams of 41.3% pure cocaine base for $1,350
from Chisolm. Deputy Ramie, who had seen Chisolm on 20 to 25 other occasions,
identified Chisolm as the individual in the video of the incidents on April 10 and
11 with “100 percent” certainty. On April 27, 2008, Johnson made his third
controlled buy of 12.1 grams of 60.8% pure cocaine base from Chisolm. Though
this third buy was not recorded, Officer Retherford testified that he was surveilling
Johnson during the buy and saw Chisolm following Johnson to Johnson’s house in
their respective vehicles and Deputy Ramie saw Chisolm arrive at Johnson’s
house, and enter Johnson’s car for a short while before returning to his car. This
was sufficient for the jury to conclude beyond a reasonable doubt that Chisolm
distributed more than 5 grams of cocaine base on April 10, 2008, and April 11,
2008 (Counts 5 and 6) and distributed of cocaine base on April 24, 2008.
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II. Admission of testimony
We review Chisolm’s contention that the district court erred in admitting the
testimony of Johnson, Taylor, Kelvin Smith, and Terry McCloud as “prior crimes
and bad acts” under Federal Rule of Evidence 404(b) for an abuse of discretion.
United States v. Brannan, 562 F.3d 1300, 1306 (11th Cir. 2009).
Federal Rule of Evidence 404(b) provides that
evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident . . . .”
Fed. R. Evid. 404(b) (emphasis added).
Here, the district court did not abuse its discretion in allowing Johnson,
Taylor, Smith, and McCloud to testify because their testimony was not admitted
under Rule 404(b) as their testimony was admitted to prove that Chisolm was
guilty of the charges for which he was being tried.
A. Johnson
The district court did not admit Johnson’s testimony under Rule 404(b), but
instead admitted it as evidence that Chisolm committed the crimes for which he
was being tried because Johnson testified that starting in May 2007, when he was
released from prison and during the relevant time frame of the charged conspiracy
(April 17, 2006, through June 3, 2008), he purchased crack cocaine “eight or nine
8
times” from Chisolm. Johnson testified that, after he began cooperating with law
enforcement, he attempted to make three controlled buys from Chisolm, which he
would set up by calling Chisolm. Also, Johnson’s testimony about the three
controlled buys with Chisolm on April 10, 11, and 24, 2008 were relevant to
establish that Chisolm was guilty of Counts 5, 6, and 7.
B. Taylor
The district court did not abuse its discretion in admitting Taylor’s testimony
because Taylor’s testimony concerned events occurring within the time frame of
the conspiracy and was relevant to establish that Chisolm was guilty of Counts 1
and 2 (the July 20th controlled buy) as Taylor testified that one of the controlled
buys in which he, Chisolm, and Bolware participated in occurred on July 20, 2006.
C. Terry McCloud
McCloud testified that: (1) on approximately twenty occasions he had
purchased four to eight “cookies” of cocaine base from Chisolm and Bolware; (2)
some of his purchases with Chisolm at Bolware’s mother’s property were made
after McCloud was released from custody in April 2006; (3) some of his purchases
with Chisolm occurred in the six-month period prior to June 22, 2006, when
McCloud taken into custody again; (4) both Chisolm and Bolware were there for
the majority of his purchases; and (5) that Chisolm would count the money as he
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stood next to Bolware, who would be cooking the powder cocaine into cocaine
base. Though some of the cocaine base purchases may have occurred prior to the
alleged start date of the conspiracy (April 17, 2006), the district court did not abuse
its discretion in admitting McCloud’s testimony as relevant to establish the
formation and existence of the conspiracy on and after April 17, 2006,
respectively.
D. Smith
The district court did not abuse its discretion in admitting Smith’s testimony
as it was relevant to establishing that Chisolm was conspiring with Bolware to sell
cocaine base during the charged time period of the conspiracy in Count 1 (April
17, 2006, through June 3, 2008). Smith testified that after he was released from
prison in June 2006, he purchased cocaine base from Chisolm and Bolware behind
Bolware’s grandmother’s house. Because the testimony concerned events relating
to charged conduct in the indictment and was not admitted under Federal Rule of
Evidence 404(b), the district court did not err in admitting it.
Therefore, because none of the witnesses’ testimony was admitted under
Rule 404(b), and the testimony was relevant to establish that Chisolm was guilty of
the crimes for which he was being tried, the district court did not abuse its
discretion in allowing the testimony. See Brannan, 562 F.3d at 1306.
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III. Sentencing Enhancement
We review Chisolm’s contention that the district court erred in applying a
sentencing enhancement, which resulted in his life sentence, de novo. United
States v. Mazarky, 499 F.3d 1246, 1248 (11th Cir. 2007). In this case, the district
court did not err in sentencing Chisolm to an enhanced sentence of life
imprisonment because he had three qualifying prior felony drug convictions that
triggered the enhancement. See 21 U.S.C. § 841(b)(1)(A) (life imprisonment
enhancement is available if the defendant has two or more prior convictions for a
“felony drug offense” that are final and the defendant has violated subsection
(b)(1)(A)).3 Id. Chisolm’s challenge also fails because he failed to challenge the
validity of his prior state convictions in 19944 and 19985 within the required five-
year time period. 21 U.S.C. § 851(e) (defendant may not challenge “the validity of
any prior conviction alleged under this section which occurred more than five years
before the date of the information alleging such prior conviction”); see also United
States v. Williams, 954 F.2d 668, 673 (11th Cir. 1992) (holding that § 851(e)’s
3
As discussed previously, sufficient evidence supports Chisolm’s convictions under 21
U.S.C. § 841. The government may seek the enhanced sentence of life imprisonment if it files
an information with the district court setting out the prior convictions on which it will rely,
which was done in this case. 21 U.S.C. § 851.
4
Chisolm was convicted of possession of a controlled substance.
5
Chisolm was convicted of possession of a controlled substance with intent to distribute
and possession of paraphernalia.
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five-year limitation is not unconstitutional because it is “reasonably tailored to
impose enhanced sentences on recidivists”). In any event, Chisolm’s argument
that his prior state court convictions do not qualify as predicate offenses fails on
the merits. See United States v. Hansley, 54 F.3d 709, 717-18 (11th Cir. 1995)
(holding that defendant’s prior felony convictions in Georgia state court for drug-
related conspiracy and simple possession qualified as predicate prior felony drug
offenses for § 841(b)(1)(A) because under the plain language of the statute, “felony
drug offense” includes any criminal conduct relating to narcotics, including simple
possession, which a state has proscribed as a felony.”) (emphasis in original).6
AFFIRMED.
6
Chisolm’s remaining challenges to his sentence—that it violates the Eighth Amendment
and that the government must prove the prior convictions beyond a reasonable doubt—are
similarly meritless. United States v. Willis, 956 F.2d 248, 251 (11th Cir. 1992) (holding that the
mandatory life-imprisonment enhancement provision in § 841 does not violate the Eighth
Amendment); United States v. Steed, 548 F.3d 961, 979 (11th Cir. 2008) (holding that the
Supreme Court’s holding in Almendarez-Torres v. United States, 523 U.S. 224 (1998), that “the
government need not allege in its indictment and need not prove beyond a reasonable doubt that
a defendant had prior convictions for a district court to use those convictions for purposes of
enhancing a sentence” remains binding precedent).
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