UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 92-9096
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
WILLIE HUGH MORRIS, BRENDA PEARL OWENS, ERNEST MUNOZ, A/K/A
ERNESTO, KENNETH LEON MORRIS
Defendants-Appellants.
CONSOLIDATED
No. 92-9110
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
CHARLES BERNARD MALONE, A/K/A TUNA,
Defendant-Appellant.
Appeals from the United States District Court
for the Northern District of Texas
(February 16, 1995)
Before KING and BENAVIDES, Circuit Judges, and LEE*, District
Judge.
BENAVIDES, Circuit Judge:
These appeals concern five members of two of a number of
organizations involved in a major cocaine trafficking scheme.
Defendants-Appellants Willie Morris, Kenneth Morris, Brenda Owens
("Owens"), Ernesto Munoz ("Munoz"), and Charles Malone ("Malone")
were each convicted of conspiracy to possess with intent to
distribute and to distribute cocaine in violation of 21 U.S.C. §
846. Willie Morris was also convicted of money laundering in
violation of 18 U.S.C. § 1956; possession with intent to
distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and 21
U.S.C. § 841(b)(1)(A); and aiding and abetting others in
committing money laundering and possession with intent to
distribute cocaine in violation of 18 U.S.C. § 2. In addition to
the conspiracy conviction, Owens was also convicted of possession
with intent to distribute cocaine in violation of 21 U.S.C. §
841(a)(1), while Munoz was also convicted of distribution of
cocaine in violation of 21 U.S.C. § 841(a)(1). Finally, Kenneth
Morris and Malone were also convicted of money laundering in
violation of 18 U.S.C. § 1956. They separately raise numerous
issues on appeal. Finding no reversible error, we affirm.
*District Judge of the Southern District of Mississippi, sitting by
designation.
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FACTS AND PROCEDURAL HISTORY
On January 30, 1992, a thirty-five count indictment was
returned against twenty-three individuals, including Willie Morris,
Kenneth Morris, Owens, Munoz, and Malone. The appellants were
charged with several drug offenses, including a charge of
conspiracy to commit the substantive drug offenses from on or about
May 1, 1989 to November 7, 1991.
At trial, the government relied heavily on the testimony of
Victor Mattias Costa ("Costa"), a cocaine "broker" or "distributor"
in the Fort Worth, Texas area. Costa testified that he bought bulk
quantities of cocaine from several different groups of suppliers
and sold the cocaine to a number of drug organizations in the Fort
Worth area. The suppliers included: (1) several groups from Miami,
Florida; (2) Munoz and his associates ("Munoz Organization"); and
(3) a group from Laredo, Texas ("Laredo Organization"). The
purchasers included: (1) a group that included Willie Morris,
Kenneth Morris, Owens, and Malone ("Morris Organization"); (2) the
Ronald Jerome Fisher organization ("Fisher Organization"); and (3)
a group from Atlanta, Georgia. On July 21, 1992, the district
court severed the trial into two groups of defendants. The Morris
and Munoz Organizations were tried together, while the Fisher
Organization was tried separately with the Laredo Organization.
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The jury returned verdicts against each of the appellants. The
arguments of each appellant and the disposition thereof will be
considered separately as follows:
I. Ernesto Munoz
A. Was there a material variance between the indictment and the
government's proof at trial that harmed Munoz?
Munoz claims that his conviction should be reversed because a
fatal variance existed between the indictment, which charged a
single conspiracy, and the proof at trial, which revealed multiple
conspiracies. Even if a variance existed, however, Munoz must
still prove that his substantial rights were violated. "The true
inquiry is not whether there has been a variance in proof, but
whether there has been such a variance as to `affect the
substantial rights' of the accused." Berger v. U.S., 295 U.S. 78,
82 (1935). Thus, in order to prevail, Munoz must prove (1) a
variance between the indictment and the proof at trial; and (2)
that the variance affected his "substantial rights."
i. Variance
To prove a conspiracy, the government must prove (1) the
existence of an agreement between two or more persons to violate
the narcotics laws; (2) that each conspirator knew of the
conspiracy and intended to join it; and (3) that each alleged
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conspirator participated in the conspiracy. U.S. v. Maseratti, 1
F.3d 330, 337 (5th Cir. 1993), cert. denied, -- U.S. --, 114 S. Ct.
1096 (1994). To determine whether a variance existed between the
indictment and the proof at trial, the number of conspiracies
proved at trial must be counted. The principal considerations in
counting conspiracies are (1) the existence of a common goal; (2)
the nature of the scheme; and (3) the overlapping of the
participants in the various dealings. U.S. v. Richerson, 833 F.2d
1147, 1153 (5th Cir. 1987). In examining these factors, "[w]e must
affirm the jury's finding that the government proved a single
conspiracy unless the evidence and all reasonable inferences,
examined in the light most favorable to the government, would
preclude reasonable jurors from finding a single conspiracy beyond
a reasonable doubt." U.S. v. DeVarona, 872 F.2d 114, 118 (5th Cir.
1989).
1. A common goal. Everyone alleged to be part of the same
single conspiracy must share a common goal. "Where the evidence
demonstrates that all of the alleged co-conspirators directed their
efforts towards the accomplishment of a single goal or common
purpose, then a single conspiracy exists." Id. The Fifth Circuit
has broadly defined this criterion and has adopted an expansive
notion of a "common purpose." For example, we have found a common
purpose with a plan to purchase cocaine involving various
participants over three years, U.S. v. Rodriguez, 509 F.2d 1342,
1348 (5th Cir. 1975), and in a series of staged automobile
accidents involving different participants, in different locations,
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and over an extended period of time, U.S. v. Perez, 489 F.2d 51,
62-63 (5th Cir. 1973), cert. denied, 417 U.S. 945, 94 S. Ct. 3067
(1974). In fact, one panel has remarked that "[g]iven these broad
`common goals' the common objective test may have become a mere
matter of semantics." Richerson, 833 F.2d at 1153.
In the instant case, the common goal is readily apparent. The
common goal of everyone involved, the suppliers, Costa, and the
purchasers, was to derive personal gain from the illicit business
of buying and selling cocaine. The sellers, such as Munoz, derived
profits from selling to the middleman, Costa, at a higher price
than for what they had bought. The purchasers, such as Willie
Morris, derived profits from selling at a higher price than for
what they had bought from Costa. Likewise, Costa derived profits
from selling to the purchasers at a higher price than for what he
had bought from the sellers. The overall objective or goal was for
everyone in the conspiracy to profit from the illicit purchase and
selling of cocaine.
2. The nature of the scheme. Although diagrams and charts of
conspiracies as either "wheels" or "chains" were once important in
analyzing this criterion,1 this court has moved away from a
1
See, e.g., U.S. v. Elliott, 571 F.2d 880, 900 (5th Cir.
1978) ("The essential element of a chain conspiracy--allowing
persons unknown to each other and never before in contact to be
jointly prosecuted as co-conspirators--is interdependence. The
scheme which is the object of the conspiracy must depend on the
successful operation of each link in the chain."), cert. denied,
439 U.S. 953, 99 S. Ct. 349 (1978); U.S. v. Levine, 546 F.2d 658,
663 (5th Cir. 1977) ("If there is not some interaction between
those conspirators who form the spokes of the wheel as to at
least one common illegal object, the `wheel' is incomplete, and
two conspiracies rather than one are charged.").
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structural and formal examination of the criminal enterprise.
Indeed, we have rejected an analysis of this factor based on
wheels, charts, or other modes.2 Instead, this court has moved to
a more functional and substantive analysis. In 1973, we determined
that, "[i]f [an] agreement contemplates bringing to pass a
continuous result that will not continue without the continuous
cooperation of the conspirators to keep it up, then such agreement
constitutes a single conspiracy." Perez, 489 F.2d at 62.
Similarly, in U.S. v. Elam, 678 F.2d 1234 (5th Cir. 1982), we
stated that the existence of a single conspiracy will be inferred
where the activities of one aspect of the scheme are necessary or
advantageous to the success of another aspect or to the overall
success of the venture, where there are several parts inherent in
a larger common plan, id. at 1246.
Thus, it can be said in the instant case that "[t]he success
of this conspiracy depended on the continued willingness of each
member to perform his function." Richerson, 833 F.2d at 1154. If
the sellers discontinued selling, there would be no cocaine for
Costa and the purchasers to buy. "The necessity of a steady
2
Finding that they impede rather than facilitate analysis of
the "single conspiracy-multiple conspiracy" issue, we eschew
utilization of figurative analogies such as "wheels," "rims" and
"hubs," which are often used to describe the nature of complex
conspiracies. We reiterate Judge Brown's comment in United
States v. Perez, 489 F.2d 51 (5th Cir. 1973), that
"[c]onspiracies are as complex as the versatility of human nature
and federal protection against them is not to be measured by
spokes, hubs, wheels, rims, chains or any one or all of today's
galaxy of mechanical molecular or atomic forms." 489 F.2d at 59,
n.11. The government is not required to attempt to squeeze
conspiracy into any particular mold.
U.S. v. Elam, 678 F.2d 1234, 1246 (5th Cir. 1982).
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cocaine supply to feed a distribution effort is beyond question."
DeVarona, 872 F.2d at 199. Likewise, the distribution effort is
critical to the success of the suppliers. If the purchasers ceased
to buy, there would be no reason for Costa to buy from the sellers,
and hence no reason for the sellers to acquire the cocaine. Thus,
although the sellers and the purchasers may not have had a direct
relationship with each other, each was necessary for the continued
success of the venture.
Munoz suggests that an analysis of the conspiracy horizontally
among the suppliers and the purchasers, however, points to a
different conclusion. Munoz, for example, argues that his
organization could not have been in the same conspiracy as the
other suppliers, such as the Laredo Organization, which were
competitors. Munoz cites to the testimony of Costa in which he
stated that he initially approached the Laredo Organization for
cocaine after becoming unhappy with Munoz. Likewise, it is
suggested that the Morris Organization cannot be in the same
conspiracy as the other purchasers, such as the Fisher
Organization, which were their competitors.
We are not persuaded by this argument. We keep in mind that
the larger, common plan was the purchase and sale of drugs through
Costa for profit. Munoz is no less a part of this larger, common
plan because Costa also purchased from others. To illustrate, if
one manufactures parts to be used in producing automobiles and
indeed sells these parts to be used in the production of such
vehicles, one's activities in so producing and selling these parts
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and enabling the automobiles to be made may be seen as necessary to
the overall success of the production of the vehicles. The larger,
common plan has been advanced. Two larger, common plans are not
created if the auto maker buys some of a competitor's parts.
Indeed, such purchases may in fact be necessary from time to time
to keep the larger, common plan in existence. Similarly, we
believe that a separate conspiracy was not created because from
time to time Costa used other sellers or purchasers to keep the
scheme alive.
3. Overlapping of participants in the various dealings. This
final criterion examines the interrelationships among the various
participants in the conspiracy. The more interconnected the
various relationships are, the more likely there is a single
conspiracy. Munoz argues that there were no interrelationships, as
he did not know or deal with anyone in the conspiracy other than
Costa. However, "[t]here is no requirement that every member must
participate in every transaction to find a single conspiracy.
Parties who knowingly participate with core conspirators to achieve
a common goal may be members of an overall conspiracy." Richerson,
833 F.2d at 1154 (footnote omitted). This court continued:
A single conspiracy exists where a "key man" is
involved in and directs illegal activities, while various
combinations of other participants exert individual
efforts toward a common goal. Elam, 678 F.2d at 1246. .
. . The members of a conspiracy which functions through
a division of labor need not have an awareness of the
existence of the other members, or be privy to the
details of each aspect of the conspiracy. Elam, 678 F.2d
at 1246.
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Richerson, 833 F.2d at 1154. Here, the "key man" was Costa. The
government does not have to establish that the sellers and
purchasers knew each other or knew what each was doing. All that
the government needs to show is that the sellers and purchasers
were conspiring with Costa to transact illicit business in cocaine.
Such activities were amply demonstrated by the testimony and
evidence presented at trial. The bulk transfers of cocaine by
Munoz to Costa show obvious efforts on the part of Munoz to
facilitate the cocaine trafficking scheme. And the amounts
transferred themselves evince a knowledge that such cocaine would
be sold or delivered to other parties. In addition, evidence that
Munoz was involved in the decision rejecting a drop-off location
where 200 kilograms of cocaine were to be delivered because the
location was unfeasible and his involvement in suggestions for a
safe place at which Costa could receive and deliver 200 to 300
kilograms of cocaine show his awareness of the agreement to provide
cocaine so that Costa could deliver to other participants in the
conspiracy.
Accordingly, after considering the three factors, we find no
variance between the proof at trial and the indictment.3
3
Munoz cites U.S. v. Townsend, 924 F.2d 1385 (7th Cir.
1991), as a case with analogous facts to the instant one in which
the court held that a single conspiracy did not exist. Townsend
is not controlling in this circuit, and Munoz presents no
arguments or reasoning outside of the arguments advanced in
Townsend as to why we should reject established Fifth Circuit
precedent. We note, in addition, that the error found by the
Townsend court was not reversible error. Id. at 1410.
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ii. Prejudice to Substantial Rights
Even assuming a variance between the indictment and the proof
at trial, no reversible error occurs unless Munoz' substantial
rights were prejudiced. Richerson, 833 F.2d at 1155. Munoz argues
that testimony involving the other conspiracies in which he was not
involved in were allowed at trial and that this evidence prejudiced
him. Munoz cites to the testimony and evidence concerning the
Fisher Organization, Morris Organization, and Laredo Organization.
In particular, Munoz argues that, because the testimony on the
Fisher Organization involved crack cocaine, which the Munoz and
Morris Organizations did not deal in, the potent stigma related to
that form of cocaine was especially prejudicial.
The possible transference of guilt to Munoz from the evidence
concerning the Fisher and Laredo Organizations is a danger that the
variance doctrine was meant to protect against. "The most common
prejudice to a substantial right resulting from a variance is
transference of guilt. Courts have recognized their duty to
protect those tried en masse on a conspiracy count from possible
transference of guilt from other joint defendants." Richerson, 833
F.2d at 1155. Munoz specifically points to the introduction of
cocaine seized from Costa's couriers before Costa had even met
Munoz. Munoz also emphasizes the fact that the lower court gave an
instruction pursuant to Pinkerton v. U.S., 328 U.S. 640 (1946), in
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which the Court held that an act of one conspirator is attributable
to all in the conspiracy, id. at 647. At oral argument, Munoz
contended that the Pinkerton instruction increased the possibility
of guilt transference, as the jury may have attributed the acts of
the other conspiracies to him pursuant to this instruction. We
must reject this claim.
We have held "that where the indictment alleges a single
conspiracy and the evidence established each defendant's
participation in at least one conspiracy a defendant's substantial
rights are affected only if the defendant can establish reversible
error under general principles of joinder and severance." U.S. v.
Jensen, No. 93-1126, slip op. 1526, 1538 (5th Cir. Dec. 20, 1994)
(quoting U.S. v. Faulkner, 17 F.3d 745, 762 (5th Cir.), cert.
denied, 115 S. Ct. 193 (1994)). Here, the evidence clearly
establishes every defendant's participation in at least one
conspiracy. Munoz has not demonstrated improper joinder and
severance, as the Fisher and Laredo Organizations were severed and
tried separately. Thus, Munoz' substantial rights have not been
violated.
Further, in U.S. v. Guerra-Marez, 928 F.2d 665 (5th Cir.),
cert. denied, 112 S. Ct. 322 (1991), a panel of this Circuit held
that the trial judge's instructions safeguarded against the
possibility of guilt transference, id. at 672. Here, the trial
court gave an instruction very similar to the one given in Guerra-
Marez. In Guerra-Marez, the trial judge stated:
If you find that a particular defendant is a member
of another conspiracy, not the one charged in the
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indictment, then you must acquit the defendant. In other
words, if you find the defendant guilty of the conspiracy
offense alleged in count 1, you must find that he or she
was a member of the conspiracy alleged in count 1 and not
some other, different conspiracy.
Id. at 672 n.7. Here, the lower court stated:
You must determine whether the conspiracy charged in
the indictment existed, and, if it did, whether the
defendant was a member of it. If you find that the
conspiracy charged does not exist, then you must return
a not guilty verdict, even though you find that some
other conspiracy existed. If you find that a defendant
was not a member of the conspiracy charged in the
indictment, then you must find that defendant not guilty,
even though that defendant may have been a member of some
other conspiracy.
In deciding that the instruction was sufficient protection
against guilt transference, the Guerra-Marez court emphasized the
fact that the risk of guilt transference was minimal because only
two conspiracies were proved at trial. Id. at 672. Here, assuming
that four conspiracies, as suggested by Munoz, were involved
(Munoz-Costa-Morris, Munoz-Costa-Fisher, Laredo-Costa-Morris,
Laredo-Costa-Fisher), only one of the combinations was the focus of
the trial because of the severance ordered by the trial court. In
Guerra-Marez, there was no such separation. Also, in the several
instances in which testimony on crack cocaine was allowed, the
trial court issued a cautionary instruction to the jury, stating
that the testimony was not to be considered for the guilt of the
defendants. Munoz' substantial rights were not prejudiced.
B. Should Munoz' proposed addition to the jury instruction
have been given?
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At trial, as part of his objection to the jury charge, Munoz
sought to have an addition to pattern jury instruction 1.19, the
"on or about" instruction. Jury instruction 1.19 states:
You will note that the indictment charges that the
offense was committed on or about a specified date. The
government does not have to prove that the crime was
committed on that exact date, so long as the government
proves beyond a reasonable doubt that the defendant
committed the crime on a date reasonably near ___________
[repeat date], the date stated in the indictment.
Munoz proposed the following addition:
This is not to say, however, that the testimony of a
witness cannot be evaluated or discredited by evidence
that an incident occurred on a date different from that
testified to by the witness, if it occurred at all.
Munoz argues that this additional instruction was necessary to
protect his rights. Munoz points to the fact that, at trial, there
were numerous instances in which there were discrepancies in dates
stated in the witnesses' testimony and hotel records. For example,
in testifying about the execution of one cocaine transaction, Costa
stated that one of Munoz' associates had checked into a hotel on
December 19, 1990, when the hotel records revealed that the
associate did not check in until December 20. Munoz argues that,
although Munoz attempted to highlight these discrepancies during
closing argument and cross-examination, because the proposed
addition was not read to the jury, the jury did not know that it
could consider the discrepancies when assessing the credibility of
the witnesses.
When a trial court refuses to give a requested instruction,
the appellate court must review the refusal under an abuse of
discretion standard. U.S. v. Sellers, 926 F.2d 410, 414 (5th Cir.
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1991). "The trial judge is given substantial latitude in tailoring
the instructions so long as they fairly and adequately cover the
issues presented." U.S. v. Pool, 660 F.2d 547, 558 (5th Cir.
1981). The refusal is reversible error only if the proposed
instruction (1) is substantively correct; (2) was not substantially
covered in the charge actually delivered to the jury; and (3)
concerns an important point in the trial so that the failure to
give it seriously impaired the defendant's ability to effectively
present a given defense. U.S. v. Grissom, 645 F.2d 461, 464 (5th
Cir. 1981).
Here, the second criterion has not been met. The trial judge
not only gave pattern jury instruction 1.09 (credibility of
witnesses), but also gave pattern jury instructions 1.15
(accomplice-informer-immunity) and 1.16 (accomplice-codefendant-
plea agreement), all of which touched upon the jury's ability to
assess the credibility of witnesses. The court's instruction
correctly informed and allowed the jury to take such discrepancies
into account.
Munoz also claims that the "on or about" jury instructions by
themselves lessened the burden of proof of the government as they
improperly led the jury to believe that it could automatically
excuse these discrepancies. We find no merit in such argument.
While the "on or about" instruction relieves the government from
absolute accuracy with respect to the dates in its pleadings, the
government must still prove beyond a reasonable doubt the
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commission of the crime on a date reasonably near the date stated
in the indictment.
C. Should Munoz' base offense level have been increased by three
levels for the purpose of sentencing?
At sentencing, the district court found Munoz to be a manager
or supervisor and accordingly ruled that a three-level increase for
an adjustment for role in the offense under § 3B1.1(b) of the 1992
United States Sentencing Guidelines ("Guidelines") was justified
for Munoz. Section 3B1.1(b) states: "If the defendant was a
manager or supervisor (but not an organizer or leader) and the
criminal activity involved five or more participants or was
otherwise extensive, increase by 3 levels." Munoz contends that
his relationship with Costa was only as a seller in a buy-sell
relationship.
In reviewing a trial court decision on sentencing, we will not
disturb the district court's findings on a sentencing factor unless
the findings are clearly erroneous. U.S. v. Whitlow, 979 F.2d
1008, 1011 (5th Cir. 1992). As long as it is plausible in light of
the record read as a whole, a factual finding is not clearly
erroneous. Id.
The trial court's findings are plausible in light of the
record as a whole. To illustrate, at trial Costa testified that,
during one of the times that cocaine was transferred to Costa from
Munoz, Munoz was the individual giving the orders on the place of
transfer and the method of transfer. Costa also testified that,
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when he was first introduced to Munoz, he was told that Munoz was
the man he would be contacting for his Texas business. Costa
testified that, when he became late on his payments, Munoz led the
group that threatened his life. And finally, when one of Munoz'
associates, Felix Machado, grabbed Costa as if he was going to
start a fight, Munoz told Machado that the place was not
appropriate for such action, and no fight ensued. The district
court's finding that Munoz was a manager or supervisor in the
conspiracy is supported by the record, plausible, and not clearly
erroneous.
II. Willie Hugh Morris
A. Did the district court err in rejecting Morris' motion to
suppress?
Willie Morris argues that certain evidence allowed by the
district court at trial was obtained as a result of an illegal
search and seizure in violation of the Fourth Amendment.
Specifically, he complains of the seizure at his residence by
federal agents of a business card of Costa bearing Costa's address.
The pertinent facts reveal that state police officers searched
Willie Morris' residence for a gun pursuant to a search warrant
that was obtained in connection to a murder investigation. In
conducting the search, the state officers came upon legal documents
concerning Willie Morris' ownership of several automobiles and real
property, travel tickets, and other financial records, including
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possibly ledgers, the existence of which they told federal
officers. The federal officers used this information to obtain a
search warrant for Willie Morris' residence.
Willie Morris argues that, because the state officers stepped
outside the bounds of the initial warrant in examining the pieces
of evidence, which were not related at all to the gun they were
searching for, the Fourth Amendment was violated. He contends
that, because the warrant that the federal officers used was based
on evidence obtained from an illegal search and seizure, this
second warrant cannot be valid.
But even assuming there was no probable cause for a search,
the evidence may still be admissible under the "good faith"
exception to the exclusionary rule, whereby the rule will not apply
when the evidence has been obtained by objectively reasonable
reliance on a subsequently invalidated search warrant. U.S. v.
Leon, 468 U.S. 897, 922-23 (1984). As we held in the previous
action on this issue, U.S. v. Kim Banks & Willie Hugh Morris, No.
91-7013 (Nov. 19, 1992), the warrant is not so lacking in probable
cause as to render official belief in the existence of probable
cause unreasonable because other information, not connected to the
state officers' illegal search, existed to justify the warrant.
For example, the affidavit contained information that Willie Morris
discussed drug transactions in his home and that he was involved in
the illicit cocaine business. Such information by itself would
make official belief in the existence of probable cause reasonable.
Because Willie Morris has not demonstrated any difference in the
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facts or law since this court last considered this matter, we again
reject his Fourth Amendment claim.
B. Did the use of certain evidence violate the double jeopardy
clause?
Willie Morris contends that, because 10,000 gelatin capsules
allegedly used to package cocaine had been introduced previously by
the government to obtain a prior conviction of Willie Morris, the
use of this same evidence in the instant trial violates the Double
Jeopardy Clause of the Fifth Amendment.
But Willie Morris does not contend that the previous offense
was the same offense, a lesser included offense, or that this
subsequent prosecution fails the Blockburger test. Blockburger v.
U.S., 284 U.S. 299, 304 (1932). And since the previous prosecution
resulted in a conviction, he cannot nor does he attempt to argue
that the previous decision predetermined in his favor an ultimate
and essential issue in the subsequent prosecution. See Ashe v.
Swenson, 397 U.S. 436, 443-46 (1970). Appellant's Double Jeopardy
claim is without merit. The Fifth Amendment bars a subsequent
prosecution and punishment for the same offense; it does not bar
admission of the same evidence.
III. Brenda Pearl Owens
A. Was the evidence sufficient to support a conviction?
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Owens argues that her conspiracy conviction should be vacated
because of insufficient evidence. Owens claims that there was no
evidence that she knew of the essential nature of the conspiracy,
that she was a member of the Morris Organization, and that she knew
of anyone who was a part of the conspiracy. In conducting a review
of the sufficiency of the evidence, we consider the evidence in the
light most favorable to the government, with all reasonable
inferences and credibility choices made in support of the jury's
verdict. If a rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt, we must
affirm. U.S. v. Yamin, 868 F.2d 130, 133 (5th Cir.), cert. denied,
492 U.S. 924, 109 S. Ct. 3258 (1989).
In order to obtain a narcotics conspiracy conviction, the
government must prove beyond a reasonable doubt (1) that an
agreement to violate the narcotics laws existed between two or more
persons; (2) that each alleged conspirator knew of the conspiracy
and intended to join it; and (3) that each alleged conspirator
participated in the conspiracy. Maseratti, 1 F.3d at 337. An
overt act does not need to be shown. The "agreement between the
co-conspirators and the defendant need not be proved by direct
evidence, but may be inferred from concert of action." U.S. v.
Vergara, 687 F.2d 57, 60-61 (5th Cir. 1982). "Such action may be
inferred from the circumstances as a whole. Acts which are not per
se unlawful lose that character when cumulatively viewed as the
constituent elements of a criminal conspiracy." U.S. v. Medina,
887 F.2d 528, 530 (5th Cir. 1989) (citing U.S. v. Muller, 550 F.2d
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1375, 1380 (5th Cir.), cert. denied, 434 U.S. 971, 98 S. Ct. 522
(1977)).
The record reveals that Owens once brought the down payment
money for a cocaine distribution to Costa and that she had told
Costa that she was from Willie Morris. Further, when the plans for
a cocaine delivery were being arranged, Costa, Willie Morris, and
Owens were on a three-way line, and Owens herself was the person
who arrived to pick up the cocaine. Owens' house was also a place
of storage and capping for the cocaine. A rational jury could
easily find the elements of the conspiracy charge beyond a
reasonable doubt.
B. Was there a material variance between the indictment and the
government's proof at trial that harmed Owens?
Owens argues that she was prejudiced by a material variance
between the indictment and the government's proof at trial. She
adopts the argument advanced by Munoz. Owens was on the purchasing
side of Costa's cocaine dealing operation. For the same reasons as
set out in disposing of Munoz' argument, we likewise reject the
argument of Owens.
IV. Kenneth Leon Morris
A. Was the evidence sufficient to support a conviction?
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Kenneth Morris argues that there is insufficient evidence to
support his conspiracy conviction. According to Kenneth Morris,
there is no testimony or evidence that (1) any discussions relating
to narcotics deals was ever conducted in the presence of Kenneth
Morris; (2) that Kenneth Morris knew of the nature of the
conspiracy (that the money he was delivering was for cocaine
shipments, as opposed to money from gambling or prostitution or
some other form of illegal activity); and (3) that narcotics
activities, such as capping, occurred in the presence of Kenneth
Morris. He admits that he was present when money was given to
Costa, but points out that he was not present when the cocaine was
actually delivered to Willie Morris. We reject Kenneth Morris'
insufficiency claim.
The evidence reviewed in the light most favorable to the jury
verdict reveals that Kenneth Morris delivered large sums of money
to Costa on a number of occasions. For example, Costa testified
that, in May 1989, Kenneth Morris delivered a suitcase containing
around $110,000. On another occasion, Kenneth Morris handed a bag
to Costa containing $180,000. Costa testified that the money was
in payment of cocaine deliveries to the Morris Organization.
Further, DEA agents investigating Kenneth Morris' house discovered
bags of money located at various points throughout his residence.
Anderson testified that these bundles of cash were like the bundles
of cash that would be put together when Willie Morris was counting
drug proceeds. The agents also found an electric money counting
machine and a piece of paper with co-conspirator Charles Malone's
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nickname, "Tuna," and business telephone number printed on it. The
agents also found several pieces of paper with numbers and letters
broken into columns. A DEA agent testified that the numbers may
refer to dollar amounts and weight amounts of narcotics. Clearly,
Kenneth Morris knowingly possessed on more than one occasion large
quantities of cash which he delivered in payment for cocaine and
from which the jury could reasonably infer that he knew the object
of the conspiracy.
Kenneth Morris contends that, in cases where a challenge to
the sufficiency of evidence has been overruled, there was always
evidence of narcotics activity taking place in the presence of the
defendant. However, in U.S. v. Gallo, 927 F.2d 815 (5th Cir.
1991), we held that the defendant's "knowing possession of
[$300,000], which represented a necessary part of the conspiracy,"
made it "reasonable for the jury to conclude that [the defendant]
knew the object of the conspiracy". Id. at 821. In Gallo we
recognized that drug traffickers are unlikely to entrust a large
portion of the proceeds from their illicit trade to an outsider,
especially so when one entrusted with such proceeds is aware of the
valuable nature of the merchandise that he is transporting.
Because of the repeated payments of large amounts of cash for
cocaine and the clandestine nature of the exchanges that Kenneth
Morris was involved in, the jury could easily conclude that Kenneth
Morris acted as the "banker" for the conspiracy, just as the
defendant in Gallo.
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Aware of our decision in Gallo, Kenneth Morris seeks to
distinguish this case by arguing that there is evidence that Willie
Morris purposely did not include Kenneth Morris as part of the
conspiracy. For example, one government witness, Bobby Anderson,
testified that Willie Morris specifically told him not to discuss
narcotics around Kenneth Morris and not to mix the narcotics
business with his family, and that Willie Morris was very sensitive
about his family's knowledge of his drug activities. Further,
another government witness, Costa, testified that he was chided by
Willie Morris for once leaving a note for Willie Morris at Kenneth
Morris' house. Kenneth Morris contends that the evidence
establishes that Willie Morris did not want to involve Kenneth
Morris in the drug trade, but rather intended to use him as his
personal helper on money matters. Kenneth Morris continues by
arguing that, in Gallo, there was no evidence or testimony from
government witnesses that the defendant was actively being shielded
from the conspiracy. We reject this argument because the testimony
of the shielding given by Anderson and Costa could very well have
been disregarded by the jury. Moreover, it is also quite possible
that the jury interpreted the shielding as an attempt by Willie
Morris to shield his brother from prosecution or the money in his
brother's possession from seizure if the conspiracy were to be
discovered. The jury could have concluded that Willie Morris was
providing "cover" for his brother and that Kenneth Morris was in
fact the banker for the conspiracy.
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Finally, Kenneth Morris argues that, in Gallo, an inference of
knowledge was permissible because Gallo gave inconsistent
statements upon being arrested. However, the government in Gallo
proved knowledge of the contents of a box, money, that was
exchanged between Gallo and a drug dealer from reasonable
inferences stemming from the inconsistent statements, not knowledge
of the object of the conspiracy. Here, it is well-established in
the record that Kenneth Morris knew that he was giving money to
Costa.
B. Did the trial court err in basing Kenneth Morris'
sentence on 285 kilograms of cocaine?
The district court sentenced Kenneth Morris to a 264 month
term. Kenneth Morris argues that the district court erred in
basing his sentence on 285 kilograms of cocaine. District court
findings about the quantity of drugs on which a sentence should be
based are factual findings which are reviewed for clear error.
U.S. v. Mitchell, 964 F.2d 454, 457 (5th Cir. 1992).
Kenneth Morris first contends that Costa never testified to
the 285 figure, but was confined to testimony that involved only
around 105 kilograms. However, in making its determination of the
amount of cocaine to be attributed, the district court is not
limited to the quantity proved at trial; nor is it limited to
evidence admissible at trial. U.S.S.G. § 6A1.3(a), p.s. Kenneth
Morris next claims that the exchanges that he participated in
involved dollar amounts that could only account for 20 to 22
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kilograms. The district court, however, is not limited to the
amount of cocaine that Malone directly transacted in, but may also
consider other relevant conduct, which includes "conduct of others
in furtherance of the execution of the jointly-undertaken criminal
activity that was reasonably foreseeable by the defendant."
U.S.S.G. § 1B1.3, comment. (n.1).
Finally, Kenneth Morris argues that the district court never
made an individualized finding on the amount that he is liable for.
However, paragraph 19 of the presentence report, which was adopted
by the district court, stated: "The defendant knew, or reasonably
should have known, the entire scope of the conspiracy that he was
involved in due to his relationship with his brother, Willie
Morris, who was the organizer and leader of the Morris
Organization."4 We have held that a long-term drug relationship
between the individual defendant and his supplier can form the
basis for finding that a defendant could reasonably foresee the
entire scope of the enterprise. U.S. v. Devine, 934 F.2d 1325,
1338 (5th Cir.), cert. denied, 112 S. Ct. 349 (1991). Here,
Kenneth Morris handled the monetary exchanges for the Morris
Organization throughout its relationship with Costa. The record
reveals that, in May 1989, Kenneth Morris brought $100,000 to Costa
and Willie Morris. In September 1989, Kenneth Morris' residence
was used to store over $176,000 of Willie Morris' cash. In
November 1990, Kenneth Morris delivered $80,000 to Costa. In
4
The presentence report adopted by the district court
attributed 285 kilograms of cocaine to the Morris Organization.
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December 1990, Costa is taken to Kenneth Morris' residence to
receive $180,000. Further, Kenneth Morris' close and trusted
relationship with his brother, Willie Morris, the leader of the
Morris Organization, as the caretaker of the proceeds put him in a
position to both know and foresee the scope of the drug dealing.
We find that Kenneth Morris' relationship as the banker or money
keeper for his brother formed an adequate basis to conclude that
Kenneth Morris could reasonably foresee the entire scope of the
drug dealing by the Morris Organization which, as reflected in the
presentence report, had received 285 kilograms of cocaine from
Costa during the conspiracy.
C. Did the trial court err in considering amounts of cocaine not
testified to or disclosed to Morris prior to the sentencing
hearing?
Kenneth Morris next objects to the introduction at the
sentencing hearing by the government of two exhibits that detailed
debriefings of Costa around 14 months prior to trial. Kenneth
Morris argues that such a procedure deprives him of confronting the
witness and preparing for the information in violation of his
rights to confrontation and due process of law. We reject this
argument. Kenneth Morris never asked the court for a continuance
of the proceedings nor did he request that Costa, the probation
officer, or the interviewing agents testify at the sentencing
hearing. And as previously stated, the court may rely on evidence
not admissible at trial.
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V. Charles B. Malone
A. Was there a material variance between the indictment and the
government's proof at trial that harmed Malone?
Malone argues that he was prejudiced by a material variance
between the indictment and the government's proof at trial. We
reject this argument for the same reasons outlined above in
disposing of Munoz' argument.
B. Was there sufficient evidence to support a conviction for
money laundering?
In its indictment, the government alleged that Malone
delivered approximately $150,000 in partial payment for cocaine.
In order to obtain a conviction for money laundering, the
government must prove that Malone (1) knowingly conducted a
financial transaction; (2) which involved the proceeds of an
unlawful activity; and (3) with the intent to promote or further
that unlawful activity. 18 U.S.C. § 1956(a)(1)(A)(i). At trial,
the government relied on the eye-witness identification given by
Michael Monkada and Sean Weber, who testified that they saw Malone
place a bag in the back seat of Monkada's car. Malone argues that
this testimony was "quite suspect" and also points to the fact
that, under cross-examination, Weber stated that he could not
identify Malone "without reservation."
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Malone, however, does not state why the testimony of the two
individuals was "quite suspect." Further, although Weber may have
qualified his identification of Malone, Monkada did not. Viewing
the evidence in the light most favorable to the government, it
would be reasonable for a jury to credit the testimony of Monkada
in identifying Malone as the individual who delivered the bag of
money.
Malone also argues that there was no evidence presented at
trial which suggested that he knew that the bag contained the
proceeds of an illegal transaction or that he possessed the intent
to further the transaction. The jury, however, heard testimony
that Malone was involved in distributing cocaine and in counting
the proceeds. There was evidence at trial that Malone capped
cocaine and that he returned Costa's phone calls to Willie Morris.
Further, regarding the specific instance when Malone delivered the
bag of money to Monkada and Weber, the evidence indicates that
Costa contacted Morris in delivering the money and that the
location was set by Costa and Willie Morris. A jury could
reasonably conclude beyond a reasonable doubt that Malone knew that
he was furthering Willie Morris' cocaine business when he delivered
the money. The evidence is sufficient to support Malone's money
laundering conviction.
C. Did the district court err in basing Malone's sentence
on 285 kilograms?
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The district court sentenced Malone to a 235 month term.
Malone argues that, although Malone's conspiracy sentence was based
on a finding in the presentence report that the Morris Organization
was involved in a conspiracy to distribute 285 kilograms of
cocaine, the evidence clearly establishes that no more than 120
kilograms were ever delivered to the Morris Organization. Further,
Malone claims that, of this 120 kilograms, the Morris Organization
sold only 75 kilograms, while the government only linked Malone to
a partial payment for a delivery of 45 kilograms.
1. Foreseeability. Malone argues that the district court did
not attempt to make a finding on whether the drug quantity listed
in the presentence report was reasonably foreseeable to Malone.
However, in the November 18, 1992 Addendum to the Presentence
Report, the Probation Officer's Response states that "the
defendant's position within the organization put him in a position
to be well aware of the size and scope of the drug trafficking
network. Therefore, the base offense level . . . should be based
on the total drug amounts involved in the Morris conspiracy," id.
at 3. The district court adopted this finding.
Malone next argues that the presentence report does not
present sufficient evidence to establish foreseeability. However,
an examination of the presentence report proves the contrary. The
presentence report states that "Charles Bernard Malone was
considered to be Willie Hugh Morris' right hand man. Malone
transported cocaine in the Ft. Worth area, picked up money and
counted money for Morris. Malone served as a lieutenant in the
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Morris' Organization and was viewed as a major participant."
Presentence Investigation Report, October 28, 1992, at 6. It is
not unreasonable to find that an individual so thoroughly involved
in an organization would know the scope and reach of the
organization. We hold that the district court was not clearly
erroneous in finding foreseeability from such facts.
Malone's reply brief cites U.S. v. Mitchell, 964 F.2d 454 (5th
Cir. 1992), arguing that the court in Mitchell focused on the
transaction in which the defendant directly participated, id. at
460. But the Mitchell court refused to infer a larger amount
because there was no other evidence to support a larger involvement
with drugs. Here, Malone delivered cocaine, collected money, and
counted money for the Morris Organization, was heavily involved in
the conspiracy, and was shown to be Willie Morris' right hand man.
Unlike the defendant in Mitchell, it is reasonable to infer that
Malone knew that the conspiracy involved more than the drugs that
he directly delivered.
Malone next points to the fact that the district court found
that Malone did not have a managerial or supervisory role in the
conspiracy in denying a three-level increase in his sentence.
Citing United States v. Carreon, 11 F.3d 1225 (5th Cir. 1994),
Malone then argues that the district court's emphasis on Malone's
position within the conspiracy in finding foreseeability
contradicts its finding that he was not a manager or supervisor.
In Carreon, the district court explicitly found that the
defendant was a key man in finding foreseeability, but rejected the
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finding that the defendant was a leader or organizer in increasing
his sentence level. Id. at 1231. The Carreon court then held that
these two decisions contradicted each other to such an extent that
a reversal of the sentencing was necessary to allow the district
court the opportunity to clarify and explain its reasoning. Id.
We believe that the instant case is distinguishable from Carreon.
There were no independent, additional findings with respect to
foreseeability other than the district court's findings that the
defendant was a key man. Thus, the key man finding contradicted
the rejection of the leader/organizer role. In the instant case,
the trial court found consistent with the evidence and as suggested
by the presentence report that Malone transported cocaine, picked
up money, and counted money for the Morris Organization. In
addition, there was evidence that he capped cocaine and was the one
who returned phone calls to Costa for Willie Morris. Thus, even if
Malone was not a manager or supervisor, he was nonetheless in a
position as Willie Morris' right hand man (as found by the court)
to be aware of and a part of the Morris Organization's overall
involvement with Costa in the illicit drug scene. Accordingly,
Carreon does not control the disposition of Malone's foreseeability
argument.
2. Quantity of Cocaine. The district court relied on the
presentence report in arriving at 285 kilograms of cocaine. The
amount in the presentence report is based on the statements made by
Costa to investigative agents. In the November 18, 1992 Addendum
to the Presentence Report, the Probation Officer's Response states:
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Investigative agents in this case provided information
regarding the amount of cocaine that Victor Costa
delivered to the Morris Organization between 1989 and
1990. Costa gave them detailed information regarding the
quantities of cocaine he delivered to the Morris
organization. According to agents and the Assistant U.S.
Attorney assigned to the case, Victor Costa testified
that he distributed over 500 kilograms of cocaine to the
Ft. Worth area. . . . Therefore, the use of 285 kilograms
for the offense level calculations for the Morris
Organization is considered to be a conservative estimate
of the drug amounts actually distributed during the
conspiracy.
Id. at 2. Malone argues that Costa never again made any statements
indicating that 285 kilograms were delivered to the Morris
Organization and that no other evidence supports this figure.
In making its determination of the amount of cocaine to be
attributed to an organization, the district court is not limited to
the quantity proved at trial nor is it limited to evidence
admissible at trial. U.S.S.G. § 6A1.3(a), p.s. The district court
may rely on the information in the presentence report if the
information has "some minimum indicium of reliability." U.S. v.
Vela, 927 F.2d 197, 201 (5th Cir.), cert. denied, 502 U.S. 875, 112
S. Ct. 214 (1991).
Malone claims that the information relied upon by the district
court to reach the 285 kilogram figure is unreliable. Malone
argues that Costa's testimony is not only uncorroborated, it is
also a self-serving confession.5 Malone claims that Costa had the
incentive to implicate others and to reveal high amounts of cocaine
5
Costa had been arrested in February 1991 on an indictment
out of the Southern District of Mississippi after one of his
cocaine shipments was intercepted. Costa entered into a plea
agreement with the Government in which he agreed to testify.
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in order to shorten his own potential sentence. Malone also argues
that the evidence at trial only proved that the Morris Organization
received 120 kilograms, less than half of the amount the sentence
was based upon.
The government cites U.S. v. Cuellar-Flores, 891 F.2d 92 (5th
Cir. 1989), for the holding that, in sentencing, a district court
may rely on uncorroborated hearsay testimony, id. at 93. In
Cuellar-Flores, the hearsay declarant was the investigating case
agent, a law enforcement officer. Id. Here, the hearsay came from
Costa, the unindicted co-conspirator. The government also cites
United States v. Rodriguez, 897 F.2d 1324 (5th Cir.), cert. denied,
498 U.S. 857, 111 S. Ct. 158 (1990). In Rodriguez, however,
corroborating evidence was present. Id. at 1328. Nonetheless, we
believe that the 285 kilogram amount was sufficiently corroborated
and possessed a sufficient indicium of reliability.
Generally, presentence reports are presumed reliable, Gardner
v. Florida, 97 S. Ct. 1197, 1205 (1977); U.S. v. Vontsteen, 910
F.2d 187, 190 (5th Cir. 1990), cert. denied, 498 U.S. 1074, 111 S.
Ct. 801 (1991), because "trained probation officers employ various
investigative procedures for verifying information used in their
reports," Vontsteen, 910 F.2d at 190. Here, the verification took
the form of the investigation and discovery of Costa's statements
under oath at the Fisher trial. Costa's admission to the agents
that he delivered approximately 285 kilograms of cocaine to the
Morris Organization is corroborated by his sworn testimony in the
Fisher trial that he delivered between 300 and 500 kilograms of
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cocaine to organizations in the Fort Worth area. The 285 kilograms
of cocaine reported in the presentence report was sufficiently
corroborated. Further, the district court judge heard Costa's
testimony at trial and thereby was able to make an assessment of
Costa's demeanor and credibility and to view the out-of-court
statement in light of his own assessment of Costa and the facts of
the conspiracy trial over which he presided. The trial court was
thus capable of judging the truthfulness of Costa's out-of-court
statements to the investigative agents.
D. Was Malone a minor participant?
At sentencing, Malone argued for a two-level decrease in his
sentence for minor participant status pursuant to U.S.S.G. §
3B1.1(b), which provides that "a minor participant means any
participant who is less culpable than most other participants, but
whose role could not be described as minimal." The district court
denied this request.
Malone first argues that the evidence clearly establishes that
he was less involved than Costa, Willie Morris, and Owens.
However, "[t]he fact that some participants may be more culpable
than [Malone] does not entitle [Malone] to classification as a
minor participant." Molano-Garza v. U.S. Parole Comm'n, 965 F.2d
20, 24 (5th Cir. 1992), cert. denied, 113 S. Ct. 1009 (1993).
Malone next argues that Molano-Garza requires that a defendant
not be convicted of more serious charges and not receive longer
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sentences than the other defendants in order to be found a minor
participant. Malone, however, misinterprets Molano-Garza. In
rejecting Molano-Garza's claim that he was a minor participant, the
court emphasized the fact that "Molano-Garza was convicted of more
serious charges than other participants and received a longer
sentence than other participants." Id. at 23-24. But the court
did not hold that these facts must always be present in order to
arrive at this conclusion.
Here, the trial court found that Malone was the right hand man
of Willie Morris and was very active in the conspiracy.
Accordingly, the trial court did not err in finding that Malone was
not a minor participant.6
CONCLUSION
For the foregoing reasons, we AFFIRM the defendants'
convictions and sentences.
6
Malone also argues that his Sixth Amendment Right to
Confrontation and his Fifth Amendment Right to Due Process were
violated because he could not cross-examine Costa, whose
statements to investigative agents formed the basis for the 285
kilograms figure in the presentence report. Malone made no
objections in the district court to preserve these arguments. We
decline to initially address them on appeal.
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