                                                                              FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                     UNITED STATES COURT OF APPEALS                       May 24, 2011
                                                                      Elisabeth A. Shumaker
                                  TENTH CIRCUIT                           Clerk of Court



 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.                                               No. 09-3289
                                                 (D. Ct. No. 07-CR-20168-JWL-20)
 LATYSHA TEMPLE,                                              (D. Kan.)

                Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before O’BRIEN, Circuit Judge, and SEYMOUR and TACHA, Senior Circuit
Judges.



       In 2009, a jury found defendant-appellant Latysha Temple guilty of

conspiracy to possess with intent to distribute fifty grams or more of cocaine base

in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), (b)(1)(A)(iii), and 846. On

appeal, Ms. Temple challenges various aspects of her conviction and sentence.

We take jurisdiction under 28 U.S.C. § 1291 and AFFIRM.




       *
        This order and judgment is not binding precedent except under the doctrines of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.
                                I. BACKGROUND

      Ms. Temple’s conviction stems from her participation in a vast conspiracy

to distribute cocaine and cocaine base in and around Kansas City, Kansas and

Kansas City, Missouri from January 2006 to November 2007. The Drug

Enforcement Administration began investigating the conspiracy in 2006 at the

request of the Leavenworth, Kansas police department. After attempting various

traditional investigative techniques (e.g., surveillance, confidential informants,

and search warrants) and finding them to be ineffective means of uncovering the

size and scope of the conspiracy, federal law enforcement officers decided to seek

wiretaps.

      From August to October 2007, officers submitted applications for wiretaps

and for extensions of wiretaps on the phones of multiple suspected conspirators.

One of the phones ultimately tapped by the officers belonged to Monterial

Wesley, a man who was conducting a large-scale drug trafficking operation from

his home in Leavenworth, Kansas. Officers soon learned that Mr. Wesley and

Ms. Temple were engaged in a romantic relationship, and several calls intercepted

from Mr. Wesley’s phone suggested that Ms. Temple permitted him to store drugs

and money at her home. For example, in one intercepted conversation, Mr.

Wesley and a co-conspirator, Keith McDaniel, discussed how much cocaine Mr.

McDaniel had left from what he purchased “the other day over at Tysha’s house.”

In another intercepted conversation, co-conspirator Shevel Foy explained to Mr.

                                         -2-
Wesley that he gave Mr. Wesley’s “girl” “size 40 engines.” Officers believed this

was coded language meaning that Mr. Foy had given Ms. Temple $40,000 for two

kilograms of cocaine. And in yet another conversation, Ms. Temple asked Mr.

Wesley for money and he told her to take some out of what she took home the day

before.

         In addition, several intercepted calls suggested that Ms. Temple also

engaged in reconnaissance and counter-surveillance on behalf of the conspiracy.

For instance, officers intercepted a call in which Ms. Temple explained to Mr.

Wesley that she had obtained information regarding the identity of people who

had attempted to break into Mr. Foy’s home to steal drug profits. In a subsequent

intercepted call, Mr. Wesley and Ms. Temple expressed concern that Ms.

Temple’s home could be similarly burglarized, and Ms. Temple explained that she

had found a better place for Mr. Wesley to keep his “bag.” 1 And in another call,

Mr. Wesley explained to Ms. Temple that he had a firearm in his car and therefore

he wanted her to drive by another co-conspirator’s home to see if the police were

there.

         On November 27, 2007, officers arrested Mr. Wesley while he was

attempting to purchase five kilograms of cocaine at a car wash. During the arrest,

officers seized a firearm from Mr. Wesley’s vehicle.

         1
        Throughout the investigation, the officers intercepted multiple calls in which
various conspirators referred to “bags.” The officers concluded that “bags” was coded
language for large amounts of money.

                                          -3-
      On February 1, 2008, Ms. Temple was charged, along with twenty-three

other individuals, with conspiracy to possess with intent to distribute fifty grams

or more of cocaine base and five kilograms or more of cocaine. Prior to trial, a

number of Ms. Temple’s co-defendants filed motions to suppress the evidence

obtained from the wiretaps. Ms. Temple joined in several of these motions. The

district court denied the motions to suppress on February 18, 2009, concluding

that the wiretaps were lawful.

      At trial, several government witnesses testified regarding Ms. Temple’s

role in the conspiracy. First, Officer Eric Jones described the numerous phone

calls intercepted during the conspiracy investigation, including those implicating

Ms. Temple. As discussed above, these calls suggested that Ms. Temple’s

primary role in the conspiracy was to store Mr. Wesley’s drugs and money at her

home. Next, Mr. Wesley’s drug source, Thomas Humphrey, testified that Ms.

Temple had accompanied Mr. Wesley to several drug transactions. Finally,

Chauncey Anderson testified that he had seen Mr. Wesley hide cocaine in a closet

at Ms. Temple’s home.

      Ms. Temple testified in her own defense, claiming that she never knowingly

participated or assisted in any illegal activity. Specifically, Ms. Temple testified

that she was not aware that Mr. Wesley routinely kept illicit profits at her home

or that he was engaged in drug trafficking. She also stated that her conversation

with Mr. Wesley regarding “bags” actually pertained to bags of Mr. Wesley’s

                                         -4-
clothes. Finally, Ms. Temple testified that she never participated in any cocaine

transactions and that Mr. Wesley never stored cocaine at her home.

      At the conclusion of the evidence, Ms. Temple moved for a judgment of

acquittal, challenging both venue and the sufficiency of the government’s

evidence. The district court denied the motion and proceeded to instruct the jury

on the multiple charges against the various defendants. With respect to the

conspiracy charge, the district court instructed the jury that it could convict the

defendants as either principals or as aiders and abettors to the conspiracy. Ms.

Temple did not object to this or any other jury instruction.

      The jury ultimately found Ms. Temple guilty of conspiracy. The court then

sentenced her to 151 months’ imprisonment based in part on sentence

enhancements for possession of a firearm and obstruction of justice. This appeal

followed.

                                 II. DISCUSSION

A.    Legality of the Wiretaps

      On appeal, Ms. Temple first argues that the district court erred in refusing

to suppress the wiretap evidence because: (1) the officers failed to properly

establish authorization in their wiretap applications; and (2) the affidavits in

support of the wiretaps did not establish necessity. These wiretap challenges are

identical to those raised by Mr. Foy in Case No. 09-3314, United States v. Foy.

Furthermore, Ms. Temple’s arguments target the very same wiretap applications

                                         -5-
as those at issue in Foy. Accordingly, we adopt our analysis from Foy and affirm

the district court’s refusal to suppress the wiretap evidence for the reasons stated

in that opinion.

B.    Venue

      Ms. Temple next contends that the government failed to establish that

venue was proper in the District of Kansas for the conspiracy charge against her.

Specifically, Ms. Temple argues that there was no evidence that she ever

committed a criminal act in Kansas.

      Although Ms. Temple is correct that the government failed to produce

evidence that she ever committed a criminal act in Kansas, she incorrectly

suggests that the government was required to produce such evidence in order to

establish the District of Kansas as a proper venue for the conspiracy charge.

Indeed, we have long held that 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. Rinke, 778 F.2d 581, 584–85 (10th Cir. 1985)

(quotations and alterations omitted) (emphasis added).

      Here, the government produced ample evidence that various conspirators,

namely Mr. Wesley, committed acts in furtherance of the conspiracy in the

District of Kansas. Indeed, there is substantial evidence in the record, including

                                         -6-
Mr. Wesley’s guilty plea to the conspiracy charge, which demonstrates that Mr.

Wesley kept a residence in Kansas and that he coordinated numerous drug

transactions from that residence. Accordingly, venue was proper in the District of

Kansas with respect to the conspiracy charge against Ms. Temple.

C.    Aiding and Abetting Jury Instruction

      Ms. Temple next argues that the district court erred in instructing the jury

that she could be convicted of conspiracy either as a principal actor or as an aider

and abettor to the conspiracy. She does not, however, challenge the specific

instruction provided by the district court, nor does she challenge whether the

evidence presented by the government supported an aiding and abetting

instruction. Rather, she contends that as a general rule “[o]ne cannot aid and abet

a conspiracy.”

      Ms. Temple did not object to the aiding and abetting instruction below;

therefore, we review her argument on appeal for plain error. United States v.

Bedford, 536 F.3d 1148, 1153 (10th Cir. 2008). “Plain error exists only where (1)

there was error, (2) that is plain, (3) that affects substantial rights, and (4) that

seriously affects the fairness, integrity or public reputation of judicial

proceedings.” Id. (quotations omitted).

      We have held that aiding and abetting is not a separate criminal offense; it

is an alternative charge in every substantive count regardless of whether it is

alleged in the indictment. See United States v. Lewis, 594 F.3d 1270, 1286 (10th

                                           -7-
Cir. 2010). Furthermore, we have expressly upheld both a jury instruction

charging a defendant with aiding and abetting a conspiracy, United States v.

Willis, 890 F.2d 1099, 1104–05 (10th Cir. 1989), and a defendant’s actual

conviction for aiding and abetting a conspiracy. United States v. Langston, 970

F.2d 692, 708 (10th Cir. 1992) (“[T]he evidence concerning Langston’s

conviction on the charge of conspiracy to manufacture amphetamine is not strong.

Nevertheless, we feel it is sufficient to hold, as we do, that . . . it supports

Langston’s conviction as one who aided and abetted in the conspiracy.”). In light

of this precedent, we cannot say that the district court committed any error, let

alone plain error, in instructing the jury on aiding and abetting the conspiracy.

See also United States v. Oreto, 37 F.3d 739, 751 (1st Cir. 1994) (“[I]t appears

that most if not all courts to consider the issue have held that a defendant may be

convicted of aiding and abetting a conspiracy.”).

D.    Sufficiency of the Evidence

      Ms. Temple next argues that she should have been granted a judgment of

acquittal because the government failed to produce sufficient evidence to convict

her of conspiracy. We review the sufficiency of the evidence de novo. Lewis,

594 F.3d at 1274. The critical inquiry is whether, viewing the evidence in the

light most favorable to the government, any reasonable jury could have found the

defendant guilty beyond a reasonable doubt. Id. In conducting this inquiry, “we

may neither weigh conflicting evidence nor consider the credibility of witnesses.”

                                           -8-
United States v. Pappert, 112 F.3d 1073, 1077 (10th Cir. 1997) (quotations

omitted).

      In order to convict a defendant as a principal actor in a conspiracy, the

government must prove: (1) an agreement by two or more persons to violate the

law; (2) knowledge of the objectives of the conspiracy; (3) knowing and voluntary

involvement in the conspiracy; and (4) interdependence among co-conspirators.

United States v. Hutchinson, 573 F.3d 1011, 1035 (10th Cir. 2009). To obtain a

conviction for aiding and abetting a conspiracy, however, the government must

prove: (1) the existence of a conspiracy; (2) the defendant associated herself with

the conspiracy; and (3) the defendant acted with the intent to bring about the

success of the conspiracy. See Langston, 970 F.2d at 705. When, as is the case

here, the jury is instructed on both a principal and an aiding and abetting theory,

we must affirm the conviction if the government presented sufficient proof that

the defendant was either a principal or an aider and abettor. Id. at 706.

      Following our comprehensive review of the record, we are satisfied that the

government presented sufficient evidence to, at the very least, convict Ms.

Temple of aiding and abetting the conspiracy. First, it is not disputed that the

government established the existence of a conspiracy. Second, the government

produced significant evidence of Ms. Temple’s association with the conspiracy,

including evidence that Ms. Temple: (1) accompanied Mr. Wesley on drug

transactions; (2) stored drugs and drug profits at her home; (3) conducted at least

                                         -9-
one drug transaction on Mr. Wesley’s behalf; and (4) conducted reconnaissance

and counter-surveillance on behalf of the conspiracy. Third, despite Ms.

Temple’s testimony to the contrary, the jury could reasonably infer from this

evidence that Ms. Temple undertook these actions with the intent to bring about

the conspiracy’s success. Accordingly, we conclude that there was ample

evidence on which a reasonable jury could convict Ms. Temple of aiding and

abetting the conspiracy.

E.    Sentence

      Ms. Temple’s final arguments on appeal relate to her 151-month prison

sentence. Specifically, she contends that the district court erred in applying

enhancements for possession of a firearm and obstruction of justice. We review

the sentencing court’s legal conclusions de novo and its factual findings for clear

error. United States v. Cherry, 572 F.3d 829, 831 (10th Cir. 2009).

      1.     Firearm Enhancement

      Section 2D1.1(b)(1) of the Guidelines provides for a two-level

enhancement “[i]f a dangerous weapon (including a firearm) was possessed.” The

Application Notes explain that “[t]he enhancement should be applied if the

weapon was present, unless it is clearly improbable that the weapon was

connected with the offense.” U.S.S.G. § 2D1.1, cmt. n.3; see also United States

v. Heckard, 238 F.3d 1222, 1233 (10th Cir. 2001). The enhancement applies

when a co-defendant possessed a firearm, so long as possession was reasonably

                                        - 10 -
foreseeable to the defendant. See United States v. Underwood, 938 F.2d 1086,

1090 (10th Cir. 1991) (holding that under §§ 1B1.3(a)(1)(B) and 2D1.1(b)(1), a

defendant may be held accountable for reasonably foreseeable weapons

possession by a co-defendant). But see United States v. Goddard, 929 F.2d 546,

548 (10th Cir. 1991) (approving of “reasonably foreseeable” approach but

suggesting that foreseeablity is not required in conspiracy cases).

      The government bears the initial burden of showing possession by a

preponderance of the evidence. Heckard, 238 F.3d at 1233. “The government’s

initial burden is met when it shows that a weapon was located near the general

location where at least part of a drug transaction occurred.” Id. (quotations

omitted). If the government meets its initial burden, the defendant must

demonstrate that it is clearly improbable that the weapon was connected with the

offense. Id.

      In this case, it is undisputed that Mr. Wesley was arrested as he attempted

to purchase five kilograms of cocaine and that officers seized a firearm from Mr.

Wesley’s vehicle at the time of his arrest. Thus, the government met its initial

burden of establishing possession by a preponderance of the evidence. Ms.

Temple, however, does not point to anything in the record which would suggest

that it was clearly improbable that the firearm discovered in Mr. Wesley’s vehicle

was connected with the drug trafficking conspiracy. Rather, Ms. Temple argues

that she did not actually know that he possessed them in connection with drug

                                        - 11 -
trafficking. Ms. Temple’s subjective knowledge (or lack thereof) is insufficient

to meet her burden of “clear improbability.” Indeed, we have observed that “guns

are ‘tools of the trade’ in the distribution of illegal drugs,” and we have noted that

“it is highly unlikely the presence of [a] handgun in a car containing a large

amount of crack cocaine was merely coincidental.” United States v. McKissick,

204 F.3d 1282, 1293 (10th Cir. 2000).

      Moreover, Ms. Temple concedes that she was aware Mr. Wesley sometimes

possessed firearms; thus, as a matter of law, she may be held accountable at

sentencing for Mr. Wesley’s firearm possession. See Underwood, 938 F.2d at

1090. Accordingly, we conclude that the district court did not err in enhancing

Ms. Temple’s sentence pursuant to § 2D1.1(b)(1).

      2.     Obstruction Enhancement

      Section 3C1.1 of the Guidelines provides for a two-level enhancement of a

defendant’s offense level when “the defendant willfully obstructed or impeded, or

attempted to obstruct or impede, the administration of justice with respect to the

investigation, prosecution, or sentencing of the instant offense of conviction, and

[] the obstructive conduct related to [] the defendant’s offense of conviction . . . .”

This enhancement accounts for perjured testimony offered by a defendant at trial,

which we have defined as “false testimony concerning a material matter with the

willful intent to provide false testimony.” United States v. Anderson, 189 F.3d

1201, 1213 (10th Cir. 1999) (quotations omitted).

                                         - 12 -
       “The mere fact that a defendant testifies to his or her innocence and is later

found guilty by the jury does not automatically warrant a finding of perjury.”

United States v. Markum, 4 F.3d 891, 897 (10th Cir. 1993). Rather, “in order to

apply the § 3C1.1 enhancement, it is well-settled that a sentencing court must

make a specific finding—that is, one which is independent of the jury verdict—

that the defendant has perjured herself.” Anderson, 189 F.3d at 1213 (quotations

omitted). In other words, “the trial court must specify which portion of the

defendant’s testimony it considers to be false.” Markum, 4 F.3d at 897.

      Here, in applying the obstruction enhancement, the sentencing court stated:

      I believe that Ms. Temple perjured herself at trial, that she
      intentionally testified falsely on material matters in order to affect
      the outcome of the case. Ms. Temple denied that . . . she knew that
      Mr. Wesley was involved in drug dealing and [testified] that she
      didn’t help him in any way with his drug dealing. I believe that was
      false when she said it at trial . . . I’m satisfied that Ms. Temple was
      well aware of what Mr. Wesley was doing and that she was
      participating in it herself by way of assisting him by driving him to
      transactions, loaning a car, or storing things at her house . . . .

Given the significant amount of evidence against Ms. Temple, which is

summarized above, we cannot say that the district court clearly erred in finding

that Ms. Temple committed perjury by testifying that she was completely

oblivious to Mr. Wesley’s drug trafficking activities. Accordingly, we affirm the

district court’s application of § 3C1.1.




                                           - 13 -
                            III. CONCLUSION

      For the foregoing reasons, we AFFIRM Ms. Temple’s conviction and

sentence.



                                   ENTERED FOR THE COURT,



                                   Deanell Reece Tacha
                                   Circuit Judge




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