United States v. Maynard

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
DEC 27 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 99-5094

JIMMY LEE MAYNARD,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. No. 98-CR-21-C)

R. Thomas Seymour (C. Robert Burton and F. Randolph Lynn with him on the brief), of
R. Thomas Seymour, Attorneys, Tulsa, Oklahoma, for Appellant.

Allen J. Litchfield, Assistant United States Attorney, Northern District of Oklahoma,
(Stephen C. Lewis, United States Attorney, with him on the brief), Tulsa, Oklahoma, for
Appellee.

Before TACHA, HOLLOWAY and BALDOCK, Circuit Judges.

HOLLOWAY, Circuit Judge.

Defendant/Appellant Jimmy Lee Maynard appeals his conviction for operating a

continuing criminal enterprise in violation of 21 U.S.C. § 848. The Second Superseding

indictment charged in Count One that beginning in or around 1988 in the Northern
District of Oklahoma and elsewhere, Maynard knowingly engaged in a continuing series

of felony violations which constituted a continuing criminal enterprise by committing

offenses of conspiracy to possess with intent to distribute and distribution of

methamphetamine, a Schedule II controlled substance, and to manufacture or attempt to

manufacture methamphetamine, in violation of 21 U.S.C. § 846, as set forth in Count

Two of the Indictment. The continuing violations were alleged to have been knowingly

and intentionally undertaken by Jimmy Maynard in concert with five or more persons,

with respect to whom Maynard occupied a position of organizer, supervisor, and other

positions of management. The indictment alleged that Maynard obtained from the

violations substantial income or resources, all in violation of 21 U.S.C. § 848 (a), (c) and

(d).

Count Two alleged that Jimmy Maynard and several other defendants knowingly

and intentionally conspired to commit offenses against the United States in violation of

21 U.S.C. § 841 (a)(1) and (d)(1)(A), namely possession with intent to distribute and

manufacture methamphetamine, all in violation of 21 U.S.C. § 846. Count Two of the

Second Superseding Indictment was vacated on April 19, 1999, as the judgment of April

29, 1999 reflects. I App. at 62.

At trial, Maynard testified in his defense. His defense was that although he had

used methamphetamine, he did not sell it, and that those who testified that he did were

lying. He testified that he never sold drugs and had never been involved in any drug

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conspiracy. IV App. at 776, 782, 787-88, 792, 795-97, 802. Following a lengthy jury

trial, Maynard was found guilty on Count One of the Second Superseding Indictment and

was sentenced on April 30, 1999 to incarceration for 360 months, a fine of $10,000, an

assessment of $100, and five years of supervised release. Maynard filed a notice of

appeal on April 30, 1999. We have jurisdiction under 28 U.S.C. §1291.

Maynard’s appeal presents two principal claims of error: (1) that prosecutorial

misconduct, which viewed as singular or cumulative error, denied him a fair trial under the

Due Process Clause of the Fifth Amendment; and (2) that there was insufficient evidence,

taken in the light most favorable to the government, to establish the elements of an offense

under 21 U.S.C. § 848.

I

PROSECUTORIAL MISCONDUCT

Maynard contends that he was denied due process by a pattern of egregious

prosecutorial misconduct. Specifically, Maynard alleges that the prosecutor, Assistant

United States Attorney Litchfield, engaged in the following acts of misconduct: (1)

deliberately and knowingly creating a false implication before the jury that Maynard

caused a murder; (2) creating the false impression that Maynard had threatened a witness

for testifying; (3) creating the false impression that a testifying witness was registered in a

motel under a false name to protect her from Maynard; and (4) eliciting improper

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testimony from a witness that Maynard had been in jail.

A

We turn first to Maynard’s most serious claim of prosecutorial misconduct, that the

prosecutor asked questions of a government witness in such a way as to intentionally and

falsely create the impression before the jury that Maynard had caused a murder. The

improper questioning occurred as follows.

The prosecutor called to testify Mr. Reginald Eugene Patterson, then serving a

twenty-seven year term in prison for manufacturing a controlled substance. II App. at 368

et seq. Patterson testified that he knew Maynard and identified him in court. Id. at 371.

During direct examination, the prosecutor asked Patterson about a conversation that took

place in Tulsa amongst himself (Patterson), Maynard, and Chris Henson (an associate of

Maynard). Patterson testified that in the course of the conversation Maynard became very

upset upon learning that Henson, unbeknownst to Maynard, had sent a “youngster,” a very

young man, on a drug run to California. Id. at 377.

The prosecutor then asked Patterson “what happened when Mr. Jimmy Maynard

found that out?” In response, Patterson testified that “all kinds of crap broke loose.” Id. at

378. The questioning then proceeded as follows:

MR. LITCHFIELD: Were you present when he found out?

PATTERSON: Yes, sir, I was.

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 MR. LITCHFIELD: And what did he say, Mr. Patterson?

PATTERSON: You really want –

MR. LITCHFIELD: Yes, I want you to tell us what he said.

PATTERSON: I want the little son of a bitch dead. I want him dead. I
want him dead now.

MR. LITCHFIELD: And who said that?

PATTERSON: Jim Maynard. He threw a stereo receiver, if I remember
right, too.

MR. LITCHFIELD: The defendant?

PATTERSON: Yeah.

Id. at 378 (emphasis added).

After cross-examination by defense counsel, the prosecutor conducted a very brief

redirect examination, which concluded with the following exchange:

MR. LITCHFIELD: By the way, this boy that Chris Henson sent to
California, where is he now?

PATTERSON: He’s dead.

Id. at 387.

There was no immediate objection to this questioning or to the answers given.

However, immediately after this testimony defense counsel asked permission to approach

the bench, which was granted. Counsel then moved for a mistrial on the ground that

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“counsel’s last question is an evidentiary harpoon” intended “to show that somehow or

other Jimmy Maynard is responsible for that man’s death. . . .” Defense counsel

emphasized that “pre-jury discussion” had been held “to avoid that kind of thing.”1 II

App. at 387. The judge told the prosecutor that his questioning of Patterson implied that

the young man’s death was related to the prior threat and the judge said that unless the

prosecutor could “connect it up, it’s a very serious matter.” II App. at 389. When the

prosecutor said that he did not intend to follow the matter up further, the judge said he

would have to take the motion for a mistrial under advisement then. Id. at 389.2

After the bench conference, the trial resumed before the jury, and the judge issued a

curative instruction:

In the direct examination there was a matter testified to by Mr.
Patterson concerning a young man who lived across from the apartment that
made a trip to California and so forth, and there was testimony by Mr.
Patterson that Mr. Maynard had heard of that. You heard that testimony.
In the redirect a question was asked, where is that young man now?

1
After opening statements but before testimony, the judge warned counsel that “the thing I
want to emphasize is . . . I don’t want to be confronted with somebody trying to slip in things that
are not appropriate. Do you understand what I’m saying?” I R. at 78.
2
The record contains a statement by the prosecutor that defense counsel was in possession
of a DEA-6 report discussing the event Patterson talked about (concerning the death of the young
man who went to California); that defense counsel knew “that Mr. Patterson said it was Joe
Woodson who told him that the guy had been killed, and implicated himself in the murder”; thus
there was no “evidentiary harpoon” because if defense counsel wanted to follow that point up, he
had had an opportunity earlier to do so and did not take advantage of it.
Defense counsel argued in support of the mistrial motion that it was totally irrelevant to
bring up the point that the young man was dead and that this reference developed by the
government in the testimony from Patterson was calculated to “make Mr. Maynard look bad.” II
App. at 388.

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 And the answer you all heard. I want to instruct you that you must disregard
that question. There is absolutely no evidence whatsoever that that
gentleman’s demise was in any way associated with the defendant here on
trial, and I don’t want you to get the wrong impression and make an
assumption that is not supported in any way by any evidence. Can each of
you, and will each of you do that? You all indicate in the affirmative. Very
well. All right.

Id. at 392.

Later in comments before closing arguments and out of the presence of the jury, the

judge returned to the motion for a mistrial. IV App. at 841-43. The judge said he had

taken the motion for a mistrial under advisement; that the question (leading to the

statement that the young man was dead) was inappropriate; and that after a conference

with counsel, as requested the jury was directed to disregard the answer. Id. at 842. The

judge noted he went further and told the jury there was absolutely no association nor

evidence that Maynard was connected to the man’s demise. The judge said he watched the

jury very carefully and that it was apparent “every one of them fully understood that

instruction and clearly was going to disregard any inference or suggestion that could have

been otherwise taken from that evidence.” Id. at 842. The judge then said he considered

the evidence in this case to be “very strong” and when an error has occurred, it was his

responsibility to look at all the evidence to determine the possible or probable effect such

an instance might have. Id. at 842. He then overruled the motion for a mistrial, but added

that he expected a little more care to be followed in the manner evidence is brought before

a jury. Id. at 843.

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 Maynard now contends that the prosecutor’s conduct, and the trial judge’s subsequent

denial of his motion for a mistrial, denied him a fair trial in violation of the Due Process

Clause of the Fifth Amendment. We review a denial of a defendant’s motion for a mistrial

or a new trial for prosecutorial misconduct for an abuse of discretion. United States v.

Gordon, 173 F.3d 761, 769 (10th Cir. 1999) (“We review the district court's denial of a

motion for new trial based on prosecutorial misconduct for abuse of discretion.”); United

States v. Begay, 144 F.3d 1336, 1339 (10th Cir. 1998) (“Defendant next argues that the

government committed prosecutorial misconduct that denied him a fair trial. We review

the denial of a motion for mistrial on these grounds for abuse of discretion.”); United

States v. Villa-Chaparro, 115 F.3d 797, 803 (10th Cir. 1997); United States v. Gabaldon,

91 F.3d 91, 94 (10th Cir. 1996).

We agree with the trial judge that this incident is a “very serious matter.”3

The direct implication that the defendant was connected to the young man’s death was

gross. Moreover, it is inescapably clear that the prosecutor knew what Patterson would

say in the testimony which he developed, namely the fact of the young man’s demise.

Indeed, the government itself conceded in its brief that the “Patterson ‘dead’ statement was

improper,” Brief of Appellee at 42, and admitted during oral argument that the “question

3
For instance in United States v. McManaman, we emphatically held that “evidence that
defendants had threatened or attempted to kill government agents or informers” may “have too
great a prejudicial impact . . .” and thus require a new trial. United States v. McManaman, 606
F.2d 919, 926 (10th Cir. 1979) (citing United States v. Weir, 575 F.2d 668, 671-72 (8th Cir.
1978)).

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was improper.” In fact, during oral argument when we asked the prosecutor “what was the

justification” for his question, he conceded that “I have no good explanation for that.”

Moreover,the prosecutor knew full well that the young man was dead; yet, he proceeded

to ask Patterson “where is he now?” During oral argument, we asked the prosector: “You

knew he was dead?” He replied, “Yes.”

Prosecutorial misconduct may “so infec[t] the trial with unfairness as to make the

resulting conviction a denial of due process.” Greer v. Miller, 483 U.S. 756, 765 (1987)

(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)) (alternation in original).

To rise to the level of a due process violation, the prosecutorial misconduct at issue must

be “of sufficient significance to result in the denial of the defendant’s right to a fair trial.”

Id. at 765 (quoting United States v. Bagley, 473 U.S. 667, 676 (1985) (quoting United

States v. Agurs, 427 U.S. 97, 108 (1976))).

However, in examining claims of prosecutorial misconduct, we have held that

reversal is required “only if the improper conduct influenced the verdict.” Gordon, 173

F.3d at 769; United States v. Ivy, 83 F.3d 1266, 1288 (10th Cir. 1996) (“A prosecutor’s

improper statement to the jury is harmless unless there is reason to believe that it

influenced the jury’s verdict.”). Thus, “[a]bsent a showing of prejudice to the defendant,

prosecutorial misconduct alone will not support a finding that the trial court abused its

discretion.” United States v. Novak, 918 F.2d 107, 110 (10th Cir. 1990) (citing United

States v. Martinez-Nava, 838 F.2d 411 (10th Cir. 1988)). We have ruled that in

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determining “whether the misconduct had such an impact, we consider the trial as a

whole, including the curative acts of the district court, the extent of the misconduct, and

the role of the misconduct within the case.” Gabaldon, 91 F.3d at 94 (quoting Ivy, 83

F.3d at 1288). Although the prosecutor’s conduct was clearly improper and rightly

deserves disapproval, we believe that under this standard the trial judge’s quick response

and emphatic curative instruction to the jury that they disregard the prejudicial testimony

was, in light of the strong prosecution case, sufficient to save this case from reversal.

United States v. Sands, 899 F.2d 912, 915 (10th Cir. 1990) (“[A] cautionary instruction is

not sufficient to cure the error where the error is likely to make a sufficiently strong

impression on the jury that it will be unable to disregard it.”).

We review below in detail the strength of the government’s case when we address

Maynard’s insufficiency of the evidence argument, but for present purposes it suffices to

say that there was an overwhelming body of evidence developed against the defendant.4

Moreover, the trial judge promptly gave an extremely strong curative instruction to the

4

Title 21 U.S.C. § 848(c)(2)(A) requires that the defendant have acted in concert with five or more
other persons with respect to whom he occupied a position of organizer, a supervisory position, or
any other position of management. Maynard thus argues that misleading testimony suggesting
that he caused a murder was particularly prejudicial since it augmented what he considers to be
weak and ambiguous evidence of his leadership role, in that it indicated that he was the “boss” of
a drug ring. Opening Brief of Appellant at 7, 12-13. We find this argument unpersuasive; as
detailed below, the prosecution presented a great deal of evidence showing that Maynard
functioned in a leadership capacity in organizing and directing the procurement and sale of
methamphetamine. Specifically, there was evidence that Maynard directed six “mules” (Marty
Sanders, Terri Kaiser, Chery Rathbun, Phllis Henson, Joe Woodson, and Glen Bartley), three
“cooks” (Reginald Patterson, Charles Bowen, and Jim Schorrenberg), and two “distributors”
(Carol Watts and Donna Gatewood), See, e.g., III R. at 621-22.

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jury immediately after the bench conference following Mr. Peterson’s testimony, directing

that the jury “must disregard that question.” The judge was also convinced that each

would not “make an assumption that is not supported in any way by any evidence.” II R.

at 392. Further, the judge himself instructed the jury that there was “absolutely no

evidence whatsoever that that gentleman’s demise was in any way associated with the

defendant here on trial.” Id.

Accordingly, under the standard to be applied and this record, we conclude that it

was not an abuse of discretion by the trial judge to deny the motion for a mistrial.5

B

Maynard also claims that he was denied due process because of prosecutorial

misconduct in that the prosecutor developed testimony falsely implying that Maynard had

threatened a witness, based on the following exchange with government witness Cheryl

Rathbun:

MR. LITCHFIELD: Are you nervous today?

MS. RATHBUN: Yes.

5
We do not find persuasive Maynard’s reliance on United States v. McDermott, 64 F.3d
1448 (10th Cir. 1995). In that case, we ordered a new trial specifically because the defendant’s
“Sixth Amendment right to self-representation was violated.” Id. at 1457. However we also held
that it was error to admit evidence of a threat by McDermott to a witness because its probative
value was substantially outweighed by its potential for unfair prejudice. Id. Nevertheless we
find McDermott unpersuasive because it does not reveal a record with the other factors present
here which do not favor a new trial – a firm curative instruction and questioning of the jury as to
its ability to disregard the damaging evidence.

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 MR. LITCHFIELD: Why?

MS. RATHBUN: I don’t know.

MR. LITCHFIELD: Has anybody forced you to testify here today?

MS. RATHBUN: No, sir.

MR. LITCHFIELD: Have you been threatened, ma’am?

MS. RATHBUN: Not to my face.

II App. at 329 (emphasis added).

Maynard contends that the prosecutor developed this line of questioning although he

knew there was no evidence such a threat had been made by Maynard. Indeed, Maynard

further argues that testimony developed outside the presence of the jury made it clear that

the threat had not come from him. Id. at 322. Ms. Rathbun was asked whether Maynard

had a “hit out on” her. She answered: “Not that Jimmy [Maynard] did, but the hit was

coming from the Maynards, from being up here to testify for Maynard, not that he directly

done it.” Id. at 332.

Maynard made a motion for a mistrial, but it was overruled by the judge. Although

Maynard contends that a request for a curative instruction was denied, the record indicates

that after a bench conference on this matter, the trial judge gave the jury the following

instruction:

Ladies and gentlemen, I instruct you to disregard the statement made, the last
statement made by the witness concerning why she might be nervous. I instruct
you to disregard that entirely. You may continue.

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Id. at 335.

In light of this curative instruction, we conclude that the judge did not abuse his

discretion in his handling of this incident which does not require a new trial.

C

Maynard next argues that the prosecutor developed testimony which falsely implied

that another witness, Donna Gatwood, was not registered under her own name in a motel

because she felt threatened by Maynard. In his examination of Ms. Gatwood, the

prosecutor brought out the fact that Ms. Gatwood was staying at a motel. He then asked:

“Ms. Gatwood, you are not on the register of that motel, are you?. . .” Ms. Gatwood

answered: “No, sir.” III App. at 503. Maynard objected on the ground that it was “highly

prejudicial” to “imply that she is being protected from Mr. Maynard, Maynard made

threats, or she is afraid. . . .” Id. at 504.

The trial judge was troubled by the fact that the prosecutor’s questioning suggested

that a “security” reason lay behind the witness’s name not appearing on the motel register.

The judge, however, noted that he did not think defense counsel wanted any more

questions to be asked of the witness, to which defense counsel replied: “It’s so broad.”

Id. at 507. The prosecutor then stated that the subject was a “quagmire.” Id. The judge

then told counsel: “Just drop it, but do not ask any more questions that have that

implication [that a witness felt insecure and needed concealment of her name]. It is

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inappropriate evidence in the case.” Id. The subject was dropped by counsel.

From our examination of the record, we conclude that no reversible error is apparent

in the actions taken by the judge with respect to this matter.

D

Lastly, Maynard argues he was denied a fair trial because of a statement by

government witness Carol Ann Watts, who testified that Maynard had been in jail. The

prosecutor asked Ms. Watts whether Maynard had ever talked with her about a time when

his car had been stopped. There was an objection by defense counsel as to leading the

witness with a suggestive question. That objection was overruled and the witness said:

“That was when he had got stopped and went to jail.” I App. at 125.

There is no showing in the record that the government intentionally sought to

interject the statement about the “jail,” and the event was not prominent in the trial. There

was no contemporaneous objection made to this statement about the traffic stop and

Maynard’s going to jail thereafter. Examination of the record fails to show any

prejudicial error from the incident.

In sum, we conclude that the incidents complained of do not demonstrate reversible

error, either singly or cumulatively. As noted earlier, the incident about the young man’s

being sent to California, Maynard’s statement that he wanted him dead, and then a later

question and answer showing that the young man was in fact dead, raise substantial

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concerns. Nevertheless, the incidents were handled carefully by the trial judge, and this

incident and the others discussed above do not demonstrate reversible error or an abuse of

discretion by the trial judge in denying the mistrial motions.

In concluding this analysis, we are moved to recall these instructive comments by the

Supreme Court:

The United States Attorney is the representative not of an ordinary party to a
controversy, but of a sovereignty whose obligation to govern impartially is as
compelling as its obligation to govern at all; and whose interest, therefore, in a
criminal prosecution is not that it shall win a case, but that justice shall be done.
. . . [The prosecutor] may prosecute with earnestness and vigor – indeed, he
should do so. But, while he may strike hard blows, he is not at liberty to strike
foul ones. It is as much his duty to refrain from improper methods calculated to
produce a wrongful conviction as it is to use every legitimate means to bring
about a just one.

Berger v. United States, 295 U.S. 78, 88 (1935); see also Gabaldon, 91 F.3d at 94-95.

II

SUFFICIENCY OF THE EVIDENCE

Maynard next challenges the sufficiency of the evidence to support his conviction

under 21 U.S.C. § 848. Maynard stresses his argument that the prosecution failed to

prove beyond a reasonable doubt that he derived “substantial income or resources” from

his drug dealing, as required by 21 U.S.C. § 848 (c)(2)(B). Opening Brief of Appellant at

1, 15. We review the evidence in the light most favorable to the government to determine

whether “any rational trier of fact could have found the essential elements of the crime

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beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in

original).

The record does not support the defendant’s position. Title 21 U.S.C. § 848 (c)

defines a continuing criminal enterprise (CCE):

[A] person is engaged in a continuing criminal enterprise if–

(1) he violates any provision of this subchapter or subchapter II of this chapter
the punishment for which is a felony, and
(2) such violation is a part of a continuing series of violations of this subchapter
or subchapter II of this chapter–
(A) which are undertaken by such person in concert with five or more other
persons with respect to whom such person occupies a position of organizer,
a supervisory position, or any other position of management, and
(B) from which such person obtains substantial income or resources.

Thus, a CCE conviction must be supported, inter alia, by proof that the defendant

obtained “substantial income or resources” from trafficking in narcotics. 21 U.S.C. § 848

(c)(2)(B). A precise definition has not been developed as to “substantial income or

resources,” and the practical meaning of the term is normally a question for the trier of

fact. However, the government “need not prove a definite amount of net profit -- it is

sufficient to show substantial gross receipts, gross income or gross expenditures for

resources.” United States v. Dickey, 736 F.2d 571, 588 (10th Cir. 1984); see also United

States v. Hahn, 17 F.3d 502, 507 (1st Cir. 1994) (“The government need only prove

revenue, not profit.”); United States v. Church, 955 F.2d 688, 697 (11th Cir. 1992)

(holding that the government “need only prove revenue, not profit”).

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 Our review of the record leads us to conclude that the prosecution satisfied its

burden. Testimony of government witness Carol Watts covered a conversation in 1991

when a Roy Rogers called and talked with Maynard. I App. at 131. She heard Maynard’s

part of the conversation. He talked about how to go to California and bring back

quantities of methamphetamine. Maynard mentioned the cost involved as being $20,000.

Id. at 132.

There was also government testimony from a witness, Phyllis Christine Henson, who

testified she bought methamphetamine from Maynard and paid him about $1,200 per

ounce. Id. at 250. Moreover, Ms. Henson testified she would buy drugs from a man

named Randy in California. II App. at 251-52. Henson was to bring back two and a

quarter pounds of drugs, and Maynard gave her the cash for the drugs. This took place in

about January of 1992. Id. at 252-53. Henson took a plane to California. Maynard gave

her expense money usually of $1,000. Maynard gave Henson a beeper number to call

Randy. Id. at 253. Henson believed she flew three times and brought two and a quarter

pounds each time. Each pound cost an amount that Henson said she would average at

about $10,000. Id. at 255. Ms. Henson also testified that Maynard gave her money to pay

Randy. II App. at 256. Henson recalled three flights, about three car trips, and about

three train trips on which she brought methamphetamine back from California, about two

and a quarter pounds each time. Id. at 265. Ms. Henson testified that as to money for

those trips, “[s]ome of those were from Jimmy.” Id. at 265. She gave the money to

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Randy, approximately $21,000 on each trip. Id. Some trips Henson made to California

were for herself, not all were for Maynard. Id. at 269.

Witness Glen Bartley also testified as a government witness. II App. at 278.

Bartley testified that Dolind Ward, also known as Randy Ward, was a source of

methamphetamine. Id. at 283-84. Twice Bartley got four pounds of methamphetamine.

Id. at 284. Before the first trip he got $8,000 from Maynard and he believed two pounds

of the drug was for Maynard. Both trips were to recover some methamphetamine for

Maynard. On the second trip to California Maynard gave Bartley $11,000 and Bartley

brought back one pound of the drug for Maynard. Id. at 285-86. The remaining three

pounds of the drug were sold by Bartley. Id. at 286. Bartley got $4,000 from Maynard

for the drug delivered to Maynard. Id. at 287. Similarly, witness Patterson testified that

Maynard gave him over $4,000 to obtain glassware and chemicals. Id. at 375. Moreover,

Officer Jackson testified that based on his training and experience with methamphetamine

organizations he believed that Maynard was the head of this organization. III App. at

648-49.

Accordingly, we conclude that there was ample evidence presented at trial to sustain

the government’s burden of proving beyond a reasonable doubt that Maynard obtained

substantial income or resources from his drug trafficking. Hahn, 17 F.3d at 507 (“The

‘substantial income’ requirement may be met either by direct evidence of the revenues

realized and resources accumulated by the defendant, or by such circumstantial evidence

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as the defendant’s position in the criminal organization and the volume of drugs handled

by the organization.”); United States v. Medina, 941 F.2d 1247, 1252 (9th Cir. 1991)

(holding evidence of $50,000 income from drug deals during three-month period and

circumstantial evidence that drug dealing was defendant’s full time occupation is

sufficient to establish “substantial income or resources”); United States v. Jones, 801 F.2d

304, 310 (8th Cir. 1986) (rejecting suggestion that the CCE statute was intended only to

reach “Mafia-type Godfathers” and not “Arkansas residents living in rented houses and

riding old motorcycles”).

III

CONCLUSION

In sum, the evidence in this record appears sufficient to support findings, beyond a

reasonable doubt, for a conviction on Count One. It showed continuing violations of the

drug laws by the methamphetamine operation; that Defendant Jimmy Lee Maynard was an

organizer and supervisor in managing the drug operation; and that Defendant Maynard

obtained substantial resources or income from the drug operation, all in violation of 21

U.S.C. § 848 (a), (c) and (d). There was no reversible error in the conduct of the trial with

respect to the serious prosecutorial misconduct we have considered. Accordingly, we

AFFIRM the judgment of the district court.

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