United States v. Jones

United States Court of Appeals
For the First Circuit

No. 10-1894

UNITED STATES OF AMERICA,

Appellee,

v.

LEONARD JONES,
a/k/a Tony, Shy, Shyheem, Anthony James,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before
Torruella, Circuit Judge,
Souter,* Associate Justice,
and Boudin, Circuit Judge.

John T. Ouderkirk, Jr., by appointment of the court, for
appellant.
Margaret D. McGaughey, Appellate Chief, with whom Thomas E.
Delahanty II, United States Attorney, was on brief for appellee.

March 22, 2012

*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
 BOUDIN, Circuit Judge. Leonard Jones was convicted of

conspiring to possess with intent to distribute cocaine, cocaine

base and ecstasy, 21 U.S.C. §§ 841(a), 846 (2006). Due to his

prior state drug possession convictions, Jones was sentenced to

life in prison under statutorily enhanced penalty provisions. Id.

§ 841(b)(1)(A). He appeals both his conviction and his sentence,

raising myriad procedural and constitutional claims.

Jones was indicted in May 2009 for the conspiracy

offense. On April 12, 2010, the day of opening arguments in Jones'

trial before an empaneled jury, the government filed a notice,

pursuant to 21 U.S.C. § 851, seeking enhanced penalties due to the

prior drug convictions. Although notice is ordinarily due before

jury selection, Prou v. United States, 199 F.3d 37, 48 (1st Cir.

1999), the requisite timing here was affected by earlier plea

negotiations discussed later in the decision.

The bulk of the government's evidence at trial, directly

relevant to the sufficiency claim advanced on this appeal, was from

five co-conspirators of Jones' who lived in Maine, all of whom had

entered plea agreements for reduced sentences in exchange for their

testimony against Jones. If believed by the jury, the testimony of

the co-conspirators and other witnesses (primarily government

agents) together with some other evidence established the

following:

-that one of the co-conspirators had met Jones
in Georgia through a mutual acquaintance; in

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 late 2005 this co-conspirator invited Jones to
visit him in Maine, citing the greater profit
to be made selling drugs in Maine than in
Georgia. Jones agreed and arrived in Maine
several days later with packaged bags of
cocaine;

-that thereafter Jones traveled frequently
between his home in Georgia and the area
around Lewiston, Maine, between 2005 and 2008,
usually staying in Maine for several days at a
time; that his travel was corroborated at
trial by cell phone and airline records; and
that evidence indicated that Jones made
approximately ten trips between Georgia and
Maine;

-that Jones' contacts in Maine expanded after
his initial trip; that these individuals--
indicted as well and testifying against him at
trial--would to varying degrees sell the drugs
he brought, let Jones use their apartments as
bases of operation, and in some cases travel
themselves to Georgia at Jones' request to
assist him in bringing drugs back to Maine;

-that in June 2006, Jones was arrested in
Maine after a routine traffic stop, and was
found to possess several cell phones in his
car, $100 in his hat, $1,000 in one of his
pockets and $535 in the other, and $750 in one
of his socks; and

-that in 2008, when federal agents began
speaking with several of Jones' contacts,
Jones directed one of his co-conspirators--a
recording of the call was offered at trial--to
find out who was cooperating and to "go guns
their ass out." (Jones later testified that
this was a joke.)

In his defense at trial, Jones' lawyer called two federal

agents and, apparently seeking to impeach the prior testimony of

some of the co-conspirators, asked briefly about their involvement

with Jones' co-conspirators. Jones also testified at trial,

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claiming that his visits to Maine were prompted by social

relationships; that his income was derived from a car wash business

and dog breeding in Georgia; and that his rental in late 2007 of an

apartment in Maine was aimed at bringing a lady friend to live in

Maine.

The trial lasted three days and ended when the jury

returned a guilty verdict after deliberating for about five hours.

Three months later, Jones was sentenced to life imprisonment, a

sentence the judge found to be required in light of the prior drug

felonies established at sentencing and the enhanced penalty

provision invoked by the government. This appeal followed.

Jones' first challenge to his conviction is to the

sufficiency of the evidence, posing the question whether a rational

factfinder could find guilt beyond a reasonable doubt. United

States v. Cruz-Rodríguez, 541 F.3d 19, 26 (1st Cir. 2008), cert.

denied, 555 U.S. 1144, and cert. denied, 129 S. Ct. 1923 (2009).

He preserved this claim, moving for acquittal after the

prosecution's opening case and renewing the motion at the close of

the trial. Our review is de novo, but the trial evidence is

considered "in the light most favorable to the prosecution." Id.

So viewed, we conclude that the jury had a rational basis for its

guilty verdict.

Given the conjoined testimony of five co-conspirators and

the limited explanations given by Jones, the case against him might

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seem clearly ample. True, no drugs were seized from him; and the

co-conspirator testimony against him was likely secured by

prospects of leniency for the witnesses (a fact the jury was made

aware of). But witness credibility is normally a call for the

jury, and the co-conspirator testimony was from multiple witnesses

and dovetailed with the travel records and phone call recording.

Jones' brief does not directly dispute that he could be

found to have supplied drugs with some regularity to the co-

conspirators and that some of them in turn sold and gave such drugs

to others. So the evidence amply made out relationships between

Jones and several co-conspirators that could easily be viewed as a

conspiracies to distribute. Jones' complaint that there was no

showing of a "common purpose" between the conspirators is perhaps

more charitably read as a claim that he was charged and convicted

of one overall conspiracy when, on the evidence accepted by the

jury, only several smaller ones were proved.

True enough, a verdict may be vulnerable if one

conspiracy is charged in the indictment but the evidence is

sufficient to constitute proof only of a different conspiracy (or

several of them). See United States v. Dellosantos, 649 F.3d 109,

116-17 (1st Cir. 2011). The reasons relate to the constitutional

pre-condition of a grand jury indictment and to the indictment's

notice of the offense charged. Id. And, in practical terms, the

prosecution secures several familiar advantages in charging a large

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conspiracy rather than a smaller one or even several smaller ones.1

Accordingly, a common claim on appeal in federal drug

conspiracies is that the defendant was a member (at most) only of

another conspiracy--usually a smaller one--than the one charged in

the indictment under which he was convicted. See 40 Geo. L.J. Ann.

Rev. Crim. Proc. 309-10 (2011) (citing cases). The law developed

under this heading is complicated and presents a range of issues;

but, where as here the legal offense--here, conspiracy to possess

with intent to distribute--is the same for the larger and smaller

conspiracy, id., the conviction is safe if the jury could

rationally conclude from the evidence that the relationship among

the participants was that of the single conspiracy charged.

Here, to find the single conspiracy charged, the jury had

to infer from the acts and statements of the witnesses a single

ongoing "agreement" that embraced Jones and other co-conspirators.

It would be enough, under the criteria developed by the courts,

United States v. Niemi, 579 F.3d 123, 127 (1st Cir. 2009), cert.

denied, 130 S. Ct. 1912 (2010), for the jury to find that the local

co-conspirators were aware generally that a common, large scale

conspiracy existed with Jones at the center, that its operation

1
These include, importantly, much more potent use of the co-
conspirator exception to the hearsay rule, Fed. R. Evid.
801(d)(2)(E); a greater opportunity to try a greater number of
defendants in one trial; and greater scope for imposing liability
on a defendant for substantive offenses (e.g., assaults or murders)
committed by another defendant. See Developments in the Law--
Criminal Conspiracy, 92 Harv. L. Rev. 920, 991 (1959).

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depended on the co-operation of all, and that the co-conspirators

knowingly associated with and adhered to it.

Some of the evidence pointed to by the government--for

example, that the modus operandi for the various transactions was

similar--is as consistent with a multiple conspiracy story as with

a single conspiracy; and Jones' brief ably argues that in a small

community the fact that the alleged co-conspirators tended to know

each other does not prove a single conspiracy. But evidence also

indicated that various co-conspirators knew that Jones was

supplying others among them, that some of the co-conspirators would

retrieve drugs or money from each other at Jones' direction, and

Jones' ability to maintain a flow of drugs was arguably enhanced by

his control of the larger enterprise.

This is the classic model of the hub-and-spoke

conspiracy, Niemi, 579 F.3d at 127, and, although the present facts

are not the most powerful example one can imagine for the single

conspiracy finding, this is a factual issue left to the jury in

close cases. See United States v. Mangual-Santiago, 562 F.3d 411,

421 (1st Cir.), cert. denied, 130 S. Ct. 293 (2009). Moreover, the

concern about injustice is, for obvious reasons, greater when the

defendant is a putative small fry member rather than the

demonstrated head of an enterprise. Cf. United States v.

Richardson, 532 F.3d 1279, 1288 (11th Cir. 2008), cert. denied, 555

U.S. 1120 (2009).

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 The remaining issues concerning Jones' conviction are

readily dispatched. Jones points to multiple statements in the

prosecutor's closing argument that he says created a threat of

unfair prejudice because they injected extrinsic facts and

potentially confused the jurors about the burden of proof and

elements of the crime. Specifically, Jones highlights the

following statements:

-Following a summary of the evidence of Jones'
travel between Maine and Georgia: "Who travels
like this? Why does one travel like this?
You know who and you know why."

-Referencing a photograph of Jones shown at
trial: "[W]e have the defendant holding a pot,
and you all know what pots are used for. Not
pressure washing."

-At the end of the closing: "I'm told the word
verdict comes from two Latin words, veritas,
which means truth, and dictum, which means
speak. The Government asks that you come back
and you speak the truth about this man and you
return a verdict of guilty."

-In rebuttal responding to Jones' counsel's
closing argument that the witnesses against
Jones were inherently unreliable: "The
defendant chose the witnesses in this case,
not the Government."

-In rebuttal responding to Jones' counsel's
closing argument that the government had
presented no hard evidence of Jones possessing
a gun or drugs: "This is a drug case; there
are no drugs. We don't need drugs; we need
evidence."

As Jones never objected to any of these statements, his

claim would ordinarily be reviewed only for plain error, United

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States v. Kasenge, 660 F.3d 537, 541 (1st Cir. 2011), cert. denied,

2012 WL 261190 (Feb. 27, 2012), but in this instance none of the

statements constituted error at all. The first two statements,

referencing Jones' travel and the photograph of him, simply asked

the jury to draw reasonable inferences from evidence presented at

trial and their own experiences, which is entirely permissible.

United States v. Vanvliet, 542 F.3d 259, 271 (1st Cir. 2008).

The last two statements made in the prosecutor's

rebuttal, stating that Jones "chose the witnesses" and that there

was no need to present drug evidence, are also unobjectionable.

Both were in direct response to arguments raised by Jones' counsel

in his own closing, discrediting the co-conspirators' motives and

asking "why are there no drugs, why is there no gun." And the

statement about drugs was not a misstatement of law--the jury was

entitled to convict Jones of conspiracy without being offered proof

that drugs were seized from Jones.

Finally, the prosecutor's entreaty to the jury that it

"speak the truth" and convict Jones might seem close to United

States v. Andújar-Basco, 488 F.3d 549, 560-61 (1st Cir. 2007), and

like cases where courts found improper exhortations to the jury "to

do its duty" and find the defendant guilty. But while we are not

endorsing the flourish used here, asking the jury to deliver an

honest verdict is proper and it is inherently the prosecutor's

position that this test entails conviction.

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 Jones also faults the judge's instruction to the jury on

reasonable doubt, which read as follows:

[I]f after a fair and impartial consideration
of all of the evidence you are satisfied
beyond a reasonable doubt as to Mr. Jones'
guilt on the offense charged in the
indictment, you should vote to convict him. A
reasonable doubt does not mean a mere
possibility that the defendant may not be
guilty, nor does it mean a fanciful or
imaginary doubt nor one based on groundless
conjecture. It means a doubt based upon
reason.

Jones says this instruction was "ambiguous" and should have

mentioned the government's heavy burden.

There was no objection to the instruction which is thus

reviewed only for plain error, Fed. R. Crim. P. 30(d); and,

strictly speaking, the charge was not error at all: the "beyond a

reasonable doubt" language is the required rubric and the "fanciful

or imaginary doubt" and "doubt based on reason" counterpoise is

classic language. E.g., United States v. Gerhard, 615 F.3d 7, 28

(1st Cir. 2010), cert. denied, 131 S. Ct. 1536, and cert. denied,

132 S. Ct. 288 (2011). The quoted paragraph is laconic but the

judge was not required to define reasonable doubt at all. United

States v. Fields, 660 F.3d 95, 96-97 (1st Cir. 2011).

That said, more defendant-friendly language is often

added (such as the "heavy burden" set forth in United States v.

Cleveland, 106 F.3d 1056, 1062-63 (1st Cir. 1997), aff'd, 524 U.S.

125 (1998)) or by instead beginning the definition with an "unless"

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formulation rather than an "if," e.g., United States v. Poulsen,

655 F.3d 492, 502 n.2 (6th Cir. 2011). However, the judge had

already told the jury earlier in the instructions that "you are

not to convict [Jones] unless you are persuaded of his guilt beyond

a reasonable doubt" and a juror could hardly doubt that this is

self-evidently a heavy burden.

Two procedural objections remain. First, Jones objects

that he was not present when counsel met with the judge to consider

a response to a jury request for re-instruction on one issue

(quantity of drugs over the course of the conspiracy) and for

physical calendars for the years 2006 through 2008. Jones says

that his absence, which no counsel requested, violated his right to

be present at "every trial stage, including jury impanelment and

the return of the verdict." Fed. R. Crim. P. 43(a)(2).

Rule 43 carves out an explicit exception for "a

conference or hearing on a question of law," Fed. R. Crim. P.

43(b)(3), the rationale surely being that a defendant's presence on

a legal issue (whether at sidebar or in chambers) is not going to

aid the defense counsel in making such arguments. See Wright et

al., Federal Practice and Procedure: Criminal 3d § 721.1 (2004);

cf. United States v. Lampton, 158 F.3d 251, 255 (5th Cir. 1998),

cert. denied, 525 U.S. 1183 (1999). Both the re-instruction and

the question of what materials a jury may consult are legal

questions and fall within the exception. See United States v.

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Gonzalez, 596 F.3d 1228, 1243 (10th Cir.), cert. denied, 131 S. Ct.

172 (2010).

As for the second procedural objection, the day after the

jury rendered its verdict, the U.S. attorney informed the district

judge that an officer in the Lewiston Police Department had

received a call from a juror that morning. The judge then held a

conference at which the police officer, the prosecutor, and Jones'

counsel were present. Although other Lewiston officers had

testified at the trial, the one who received the call from the

juror said he knew nothing about Jones' case prior to the call.

The officer in question stated that the telephoning juror

was known to him from high school but was not currently a friend;

that in the last few years the officer had seen the juror only a

couple of times around town; that the juror did not say what had

happened in the jury deliberations but engaged in "small talk"

centering around the juror's complaint about "the caliber" of the

witnesses at Jones' trial and that the juror "basically talked

about all the witnesses and how . . . [the police] deal with that

in Lewiston."

At the close of the hearing, defense counsel asked that

the juror be called to clarify his relationship with the Lewiston

Police Department and to expose any potential bias. The judge

declined to do so, and Jones now says this was error. Jones'

preserved claim of error on appeal is reviewed for abuse of

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discretion, United States v. Mikutowicz, 365 F.3d 65, 74 (1st Cir.

2004), but there is no indication of any such abuse.

Having been discharged, the juror was free--absent valid

restriction and whether wisely or not--to talk with whomever he

chose about the trial. See In re Globe Newspaper Co., 920 F.2d 88

(1st Cir. 1990). Had his remarks suggested impropriety in the jury

deliberations or juror bias, the district judge might have been

required to pursue the matter further, see United States v. Villar,

586 F.3d 76 (1st Cir. 2009), but the officer's report suggested

neither a flaw in the jury deliberations nor any reason to doubt

the officer's report. There was no abuse of discretion in

declining to order a further hearing on the matter.

This brings us to Jones' challenges to his sentence--for

which further background is helpful. The pre-sentence report

estimated that Jones was responsible for the distribution in the

Lewiston area in Maine of just over a kilogram of cocaine base,

over a kilogram of cocaine, and twenty-five grams of ecstasy.

Because of his criminal history, Jones fell in the top category and

combined with his drug quantity, use of a firearm, leadership role

and false testimony at trial, this equated to a guideline sentence

of 360 months to life.

However, under 21 U.S.C. § 841(b)(1)(A), a defendant who

has the requisite drug quantity and "two or more prior convictions

for a felony drug offense" must be sentenced to life in prison. It

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is a condition of such an enhanced mandatory sentence that--"before

trial, or before entry of a plea of guilty"--the U.S. Attorney file

an information with the court and serve on the defendant or his

counsel an information identifying the prior convictions to be

relied upon. Id. § 851(a)(1).

Here, the jury was selected in proceedings before the

magistrate judge on April 5, 2010, and the opening arguments and

the first witnesses were presented on April 12, 2010, before the

district judge. The section 851 information was apparently filed

only minutes before the opening arguments. "Trial," as used in

section 851, has been read by this and other courts to include jury

selection, Prou, 199 F.3d at 48. Jones concedes no objection was

made but invokes plain error.

That Jones made "no objection" is an understatement. On

April 5, 2010, expressly in aid of plea bargaining, Jones

explicitly waived any objection to the timing of a section 851

information "provided that such notice is filed on or before April

11, 2010." Such waivers are permitted, Prou, 199 F.3d at 47.

Because April 11, 2010, turned out to be a Sunday, the judge

granted the request of both sides made on April 8 to extend the

time for filing until 8:30 a.m. on April 12, and Jones has not

contested the government's assertion that it was filed at 8:17 in

the morning. That resolves the matter.

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 What remains is Jones' fully preserved claim that a life

sentence--or at least a mandatory life sentence--for his present

conviction is so harsh as to violate the Eighth Amendment

prohibition on cruel and unusual punishment. Jones stresses that

the prior drug felonies identified in the information were three

state court convictions for simple possession of drugs, one of

which he asserts was for a quantity of marijuana that would not

even be a crime in Maine, although the offense was committed in

Georgia and did there constitute a felony.2

Taken by itself, a life sentence for a 30 year old

defendant, based on a first time drug distribution conviction,

looks on its face like a very severe sentence. We are prepared to

assume that--despite the criminal history including possession

offenses--the district judge might have given a lesser sentence

absent the mandatory minimum even though the guideline range as

computed was 30 years to life. But there are two difficulties with

Jones' constitutional attack.

The first is that the Supreme Court has upheld as

constitutional sentences that look equivalently severe. Harmelin

v. Michigan, 501 U.S. 957 (1991) (upholding a sentence of life in

2
A "felony drug offense" is defined as "an offense that is
punishable by imprisonment for more than one year under any law of
the United States or of a State or foreign country that prohibits
or restricts conduct relating to narcotic drugs, marihuana,
anabolic steroids, or depressant or stimulant substances." 21
U.S.C. § 802(44) (2006).

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prison without parole for possession of more than 650 grams of

cocaine). See also Ewing v. California, 538 U.S. 11 (2003)

(upholding California's "three strikes" law and the imposition of

a 25 years to life sentence); Hutto v. Davis, 454 U.S. 370 (1982)

(upholding a sentence of forty years for possession and

distribution of nine ounces of marijuana). Cf. United States v.

Kratsas, 45 F.3d 63, 68 & n.3 (4th Cir. 1995) (upholding mandatory

life sentence).

More recently, as Jones points out, the Supreme Court

held that a life sentence without parole for non-homicide offenses

imposed on juvenile offenders violated the Eighth Amendment.

Graham v. Florida, 130 S. Ct. 2011 (2010). But the Court there

relied heavily on a "national consensus" against such sentences and

the "lessened culpability" of juveniles. Id. at 2026. Jones was

not close to being a juvenile at the time of his present offense

(although he was at the time of the prior possession offenses).

Second, Jones's situation is considerably less attractive

than the short-hand description of him as a first time distributor

with some older possession offenses. The evidence presented at

trial showed that he ran a significant distribution network

involving a number of people over several years, possessed guns in

connection with this continuing crime, seemingly was prepared to

murder informants, and had enough prior convictions to place him in

the top criminal history bracket.

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 Further, all this would not have triggered the mandatory

minimums had not the quantity of drugs he distributed exceeded the

highest of the several statutory thresholds; one pair, at the time

of Jones' crime, was five kilograms of cocaine or 50 grams of

cocaine base. 21 U.S.C. § 841 (2006). Cocaine and ecstasy aside,

a full kilo of crack was attributed to Jones in the pre-sentencing

report, so he would most likely have met the threshold even under

the later revised crack threshold of 280 grams, a change to which

Jones makes passing reference but no developed argument.3

Some regard American drug policy as now in disarray; and

even among the many who regard illegal drugs as a curse of epic

proportions, the mandatory minimum sentences often cause disquiet

among judges, lawyers and others. But within extremely broad

limits, Congress--which unlike the judiciary is popularly elected--

sets both sentencing policy and the prescribed range of sentences

for federal drug crimes; and the prosecution also had discretion in

this case to not seek the mandatory sentence. The sentence in this

case does not exceed those limits.

Affirmed.

3
The amount was changed to 280 grams as of August 3, 2010.
Fair Sentencing Act of 2010, Pub. L. 111-220 § 2(a), 124 Stat.
2372, 2372 (Aug. 3, 2010). Jones was sentenced on July 21, 2010
and the relevant conduct occurred between 2005 and 2008, so the new
law does not apply. Cf. United States v. Douglas, 644 F.3d 39 (1st
Cir. 2011) (Fair Sentencing Act applies to a defendant who pleaded
guilty prior to enactment but was sentenced afterwards).

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