FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT April 12, 2013
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 11-3294
STEPHEN BLACKBURN, (D.C. No. 2:09-CR-20133-JWL-12)
(D. Kan.)
Defendant-Appellant.
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ORDER AND JUDGMENT*
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Before LUCERO, BALDOCK, and TYMKOVICH, Circuit Judges.
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A jury convicted Defendant Stephen Blackburn of one count of conspiracy to
possess with intent to distribute more than 1,000 kilograms of marijuana, in violation of
21 U.S.C. § 841(a)(1) and (b)(1)(A)(vii). Defendant now appeals, challenging venue and
the sufficiency of the evidence. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we
affirm.
I.
The Government presented the following facts at trial. The conspiracy in this case
had its roots in 1997 when Curtis Pitter (also known as Michael Francois) got in contact
with his boyhood friend Devon Thomas. Pitter would arrange for a source in Los
*
This order and judgment is not binding precedent except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Angeles, California, to ship five to ten pounds of marijuana to Thomas in Florida. This
arrangement was interrupted in 1998 and again in 2000 by Thomas and then Pitter
serving time in jail and Thomas twice being deported to Jamaica. Pitter and Thomas
resumed marijuana trafficking in earnest in 2004, this time with Thomas going to
Phoenix, Arizona, to obtain marijuana from Mexican sources. Thomas would pay the
sources with cash sent from Pitter and delivered by either Tamary Brown or Gladstone
McDowell. Pitter would then wrap the marijuana in plastic wrap, put grease over the
packages, box them (usually with an outer and inner box sealed by spray foam or glue),
and ship the boxes to Kansas City, Missouri, by UPS. The shipments started out at thirty
to forty pounds per week and increased to around 300 pounds per week. Dwight Rhone,
Pitter’s cousin, also helped ship the marijuana. The conspirators split the profits based on
set percentages, with Pitter receiving 40%, Gladstone McDowell 30%, Thomas 20%, and
Rhone 10%.
In 2006, police arrested Devon Thomas in Phoenix while he was dropping off
marijuana packages at a UPS store. After being released on bail, he fled to Florida,
where he continued to receive money from Pitter for his part of the marijuana profits.
Thomas testified that five men “work[ed] for us” in Phoenix packaging marijuana.
Record on Appeal (“ROA”), vol. VII at 303. These men were Rhone, Theodore
McDowell (Gladstone McDowell’s son), Samora McIntosh, Sheldon McIntosh, and
Ibrahima Kane. They became known at trial as the “Arizona Five.” Thomas testified
that Arizona Five had money invested in the marijuana business and each would receive a
certain percentage of the profits based on his contribution. He also testified that most of
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the people working in Phoenix were connected through Pitter, “but, I mean, it was just
one organization. One come [sic] and goes. I wasn’t directly involved with most of these
people, but there was a part of it through [Pitter].” ROA, vol. VII at 306–07. The
conspirators’ usual pattern of travel was to drive or take a bus from Kansas City to
Phoenix, and then to fly on one-way tickets back to Kansas City. They would also often
fly through Las Vegas, Nevada, in order to attract less suspicion if they were discovered
with large amounts of cash.
In May 2007, the organization suffered a setback when Pitter and the Arizona Five
were arrested at a house in Avondale, Arizona, a suburb of Phoenix. The police seized
630 pounds of marijuana and $223,000 in cash from the house. Defendant Blackburn
immediately flew to Arizona, where he attempted to get the men released on bail. Only
Pitter was released, and after taking a break for a month or two, the organization resumed
trafficking marijuana. Pitter sent Gladstone McDowell to Arizona to purchase and
package marijuana. But sometime in the summer of 2007, Pitter asked Thomas to return
to Arizona because Gladstone was not negotiating for a proper quality of marijuana.
Thomas said the organization was shipping between 200 and 300 pounds of marijuana
twice a month during the second half of 2007.
Thomas testified that Pitter asked him to send some marijuana to a person in
Tennessee named Yosiphat. Thomas believed this person was Defendant Blackburn, but
Tamary Brown identified “Yosiphat” as Denaud Egana. Egana himself said his name
was “Yehosaphat.” Egana testified that Defendant recruited him in 2007 to do legal
research regarding the Arizona Five because Egana was a paralegal. Defendant and
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Egana received powers of attorney in the names of each of the Arizona Five. Defendant
used these powers of attorney to inform Arizona law enforcement officials that
approximately $70,000 was missing from the Avondale house in addition to the $223,000
seized by police.
Egana also testified that in early 2007 Defendant had offered Egana some
marijuana for resale. Defendant told Egana that he received marijuana packages from
Pitter and Pitter’s “congregation” and that Defendant “survived” through the distribution
of marijuana. Egana declined the offer to distribute marijuana because he wanted to stay
out of trouble. In 2008, Egana helped Defendant draft a motion in defense of a young
man in Defendant’s congregation who was facing marijuana-related charges in
Tennessee. Defendant told Egana he had lost $10,000 of his own money in relation to the
case. Defendant also told Egana that if Pitter had shipped the marijuana to him, the
police would not have intercepted it in Tennessee.
Defendant’s IRS records showed that he did not file federal income tax returns in
2007, even though his bank account showed cash deposits of $42,698. The account
records also showed multiple withdrawals for rental vehicles and airline tickets. Egana
testified that Pitter had purchased a car for Defendant for $40,000.
In November 2007, a local narcotics enforcement officer stopped a SUV bearing
Missouri license plates in Goodwell, Oklahoma, after he observed it driving westbound
on the shoulder of Highway 54 without signaling. While the car was stopped, another
officer arrived with a drug dog, which alerted to the vehicle. A search yielded $139,980
in cash. Gladstone McDowell was a backseat passenger in the vehicle. He claimed the
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money, signing a receipt for it and writing “The money is mine alone.” An assistant
district attorney from Guymon, Oklahoma, testified that he filed a forfeiture action
against the currency. He mentioned that Guymon was in the Oklahoma panhandle. He
testified that five days after the seizure, Defendant came to the district attorney’s office in
Guymon and said the “moneys were church moneys” and asked that the money be given
back to him. ROA, vol. VII at 1152. The district attorney’s office declined.
In June 2009, a UPS store owner in Mesa, Arizona, notified the DEA that a person
matching the description of Curtis Pitter had dropped off sixteen boxes. The boxes were
addressed to two addresses in Missouri, one of which was associated with a former
housemate of Pitter’s. The DEA obtained a search warrant for the eight boxes being sent
to that address, and tracked the boxes to a UPS distribution facility in Kansas City,
Kansas. A search of those boxes yielded about 200 pounds of marijuana.
The marijuana trafficking organization finally unraveled in December 2009, when
agents arrested Curtis Pitter and Gladstone McDowell and searched both their residences
in Kansas City, Missouri. At Gladstone McDowell’s residence, the agents seized records
documenting marijuana transactions totaling 4,545.5 pounds. At Pitter’s residence on
Oldham Road, authorities found 67 pounds of marijuana, $98,256 in cash, and an
envelope containing power of attorney documents for the five defendants held in
Arizona. The Oldham Road residence had been purchased under Gladstone McDowell’s
name in 2005, although Pitter provided the money for the mortgage payments. Closing
for the house took place at a title company’s office in Leawood, Kansas. The down
payment was made up of cashier’s checks, several of which were obtained in Jamaica.
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A grand jury indicted Defendant and nineteen other persons on drug trafficking
and money laundering charges. The Superseding Indictment charged Defendant with
conspiring to distribute 1000 kilograms or more of marijuana in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(A)(vii). A jury convicted Defendant, and the district court
sentenced him to 151 months’ imprisonment. Defendant filed no fewer than nine post-
trial motions pro se, raising (among other things) the issues he now urges on appeal with
benefit of counsel—insufficient evidence and improper venue.
II.
“We review sufficiency-of-the-evidence challenges de novo, considering both
direct and circumstantial evidence, and all reasonable inferences therefrom, in the light
most favorable to the government.” United States v. Acosta-Gallardo, 656 F.3d 1109,
1123 (10th Cir. 2011) (internal quotation marks and brackets omitted). We will reverse
on sufficiency of the evidence grounds only if “no rational jury could have found each
element of the crime beyond a reasonable doubt.” United States v. Parada, 577 F.3d
1275, 1283 (10th Cir. 2009). To prove a defendant was part of a drug-trafficking
conspiracy under 18 U.S.C. § 841, the Government must show: “(1) two or more persons
agreed to violate the law; (2) the defendant knew the essential objectives of the
conspiracy; (3) the defendant knowingly and voluntarily participated in the conspiracy;
and (4) the alleged coconspirators were interdependent.” United States v. Yehling, 456
F.3d 1236, 1240 (10th Cir. 2006).
Here, the jury heard the following evidence linking Defendant to the marijuana
trafficking conspiracy. In early 2007, he offered to Egana some marijuana to sell. He
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told Egana he received marijuana from Pitter’s “congregation” and that he survived by
distributing marijuana. Defendant told Egana he had lost $10,000 of his own money
when a member of Defendant’s “congregation” was found in possession of marijuana,
and he told Egana that the marijuana would not have been caught if Pitter had shipped it
to Defendant. Defendant flew from Tennessee to Phoenix the day after the Arizona Five
were arrested and tried to help them with their legal proceedings. He tried to claim the
$139,980 in cash seized from Gladstone McDowell in the Oklahoma panhandle, claiming
it was “church money.” And, finally, Pitter purchased a $40,000 car for Defendant.
From this evidence, a rational jury could easily conclude Defendant was a member of the
conspiracy.
Defendant makes several feeble attempts to undermine this evidence. First, he
says he “made no claim to the money” seized in Oklahoma. Appellant’s Br. at 21.
Likewise, he asserts in the fact section of his brief, “Further evidence presented at trial
confirmed that Stephen Blackburn never made a claim for the money seized in
Oklahoma.” Id. at 7. This flatly misstates the evidence. The part of the record
Defendant cites only establishes that he didn’t file any “legal documents stating that the
money was his.” ROA, vol. VII at 1873. But the assistant district attorney from
Guymon, Oklahoma, testified, “Later Mr. Blackburn then came to our office. He said
that those moneys were church moneys, and he asked if we would give those church
moneys back to him.” Id. at 1152. So Defendant did, in fact, make a claim to the money.
Next, Defendant claims Devon Thomas was a wholly unreliable witness based on
his mistaken belief that Defendant used the name Yosiphat or Yehosaphat, even though
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two other witnesses identified Egana as Yosiphat. Defendant also says Thomas initially
told federal agents that he shipped eight pounds of marijuana to Yosiphat, but then
testified at trial that he sent Yosiphat 300 to 400 pounds. But these attempts to
undermine Thomas’s credibility are futile on appeal. Weighing credibility is a job
delegated to the jury, not to us. United States v. Bowen, 527 F.3d 1065, 1076 (10th Cir.
2008).
Finally, Defendant tries to cast doubt on Egana’s testimony that Defendant offered
to front him marijuana. Defendant says, in a footnote, that Egana’s testimony was
“uncorroborated, came from a person admitted to have a history of convictions for truth
or veracity crimes and [who] was hoping for consideration for a reduction of his
sentence.” Apellant’s Br. at 22 n.5. He adds that even if this testimony were true, it
would be evidence of “a whole separate conspiracy” from the conspiracy charged in the
indictment. Id. In our circuit, “[a]rguments raised in a perfunctory manner, such as in a
footnote, are waived.” United States v. Hardman, 297 F.3d 1116, 1131 (10th Cir. 2002).
Yet even if we treated these arguments as properly raised, the first argument goes only to
Egana’s credibility, which is unreviewable on appeal. Bowen, 527 F.3d at 1076. The
second argument would be subject to plain error review because Defendant did not raise
it in any of his post-trial motions. See Fed. R. Crim. P. 52(b). And the evidence
connecting Defendant to the larger conspiracy demonstrates there was no error, much less
a plain one. So we cannot overturn the jury’s verdict.
III.
Article III of the Constitution requires the trial of all crimes to be held “in the State
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where the said Crimes shall have been committed.” U.S. Const. art. III, § 2, cl. 3. See
also U.S. Const. amend. VI. Echoing the constitutional command, Federal Rule of
Criminal Procedure 18 directs that venue is proper “in a district where the offense was
committed.” When the crime charged is conspiracy, “venue as to prosecution of all
members of the conspiracy lies either in the jurisdiction in which the conspiratorial
agreement was formed or in any jurisdiction in which an overt act in furtherance of the
conspiracy was committed by any of the conspirators.” United States v. Foy, 641 F.3d
455, 466 (10th Cir. 2011) (quoting United States v. Rinke, 778 F.2d 581, 584 (10th Cir.
1985)). The Government need only prove venue by a preponderance of the evidence.
Acosta-Gallardo, 656 F.3d at 1118.
In this case, the properly-instructed jury found venue to lie in the United States
District Court for the District of Kansas. Defendant has not challenged the jury
instructions, but only the adequacy of the evidence supporting venue. In reviewing a
jury’s decision that venue lies in a particular district, we “view the evidence in the light
most favorable to the government and make all reasonable inferences and credibility
choices in favor of the finder of fact.” Id. (brackets omitted) (quoting United States v.
Kelly, 535 F.3d 1229, 1232 (10th Cir. 2008)).
The Government proposes several bases on which the jury could have rested its
venue finding. First, the Government argues the jury reasonably could have found venue
to lie in Kansas based on the seizure of eight boxes of marijuana in the UPS facility in
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Kansas City, Kansas.1 But although the conspirators certainly shipped the boxes through
Kansas, the mere presence of the boxes in Kansas is hardly an “overt act.” Pitter
committed an overt act in furtherance of the conspiracy when he shipped the packages
from a UPS store in Mesa, Arizona. But UPS’s transportation of the boxes through
Kansas, even if foreseeable, was not an act committed by any of the conspirators. If this
were a sufficient basis for venue, the Government could have brought the prosecution in
any judicial district through which the conspiracy’s marijuana shipments passed. For this
specific shipment, those districts might have included the District of New Mexico, the
Western and Northern Districts of Oklahoma, and the Northern District of Texas. The
boxes may have even traveled through a UPS hub in another district, such as the District
of Colorado. The record also shows the conspirators shipped marijuana from Arizona to
Florida and Tennessee. So under the Government’s theory, venue might lie in any
number of judicial districts in the southern United States simply because UPS shipments
traveled through those districts. The Government has not cited, nor have we found, any
authority for stretching the rules of venue so far.
The Government also argues the closing of the Oldham Road residence sale at a
title company in Kansas is sufficient to establish venue. The Oldham Road purchase was
relevant to the money laundering charges, but Defendant was only convicted for
conspiracy to possess marijuana with intent to distribute. Nothing in the record suggests
1
Defendant suggests UPS actually found these boxes in Missouri, but then
transported them to a secured facility in Kansas. This supposition is directly contradicted
by the record, which shows the boxes were “seized at the UPS hub in Kansas City,
Kansas.” ROA, vol. VII at 1115.
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that the purchase of the Oldham Road residence was an act in furtherance of the
marijuana-trafficking conspiracy.
Ultimately, we need not decide whether these first two theories are sufficient to
support the jury’s finding of venue. The jury heard other evidence from which it could
conclude by a preponderance of the evidence that the conspirators committed acts in
furtherance of the conspiracy in the District of Kansas. Tamary Brown testified that she,
Gladstone McDowell, and Marlon Forrester would drive or take a bus from Kansas City,
Missouri, to Arizona with the money to buy more marijuana. Furthermore, the jury heard
that police stopped a vehicle carrying Gladstone McDowell and nearly $140,000 in cash
on Highway 54 in the Oklahoma panhandle. The vehicle bore Missouri license plates
and was westbound. Jurors could easily conclude based on these pieces of evidence that
multiple members of the conspiracy drove through Kansas in order to return cash to
Arizona. Driving a vehicle and carrying cash are both overt acts. See United States v.
Record, 873 F.2d 1363, 1370 (10th Cir. 1989) (approving jury instruction that said an
overt act for venue purposes “may be as innocent as the act of a man walking across the
street, or driving an automobile, or using a telephone”). See also United States v. Bailon-
Santana, 429 F.3d 1258, 1262 (9th Cir. 2005) (driving a car); United States v. Fernandez,
559 F.3d 303, 327 (5th Cir. 2009) (loading cash into a truck). So the jury reasonably
could infer the conspirators committed overt acts in furtherance of the conspiracy in the
District of Kansas. Consequently, we cannot disturb its finding that venue was proper in
that district.
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AFFIRMED.
Entered for the Court,
Bobby R. Baldock
United States Circuit Judge
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