                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

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



 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.                                               No. 09-3316
                                                 (D.C. No. 2:07-CR-20168-JWL-24)
 FRANKLIN GOODWIN, JR.,                                       (D. Kan.)

                Defendant - Appellant.


                             ORDER AND JUDGMENT *


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


       After examining the briefs and the appellate record, this three-judge panel

has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th

Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

       Defendant-appellant Franklin Goodwin, Jr., appeals from his convictions

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

base and five kilograms or more of cocaine in violation of 21 U.S.C. § 841(a)(1),


       *
        This order and judgment is not binding precedent except under the doctrines of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.
(b)(1)(A)(ii), (b)(1)(A)(iii), and § 846, and the use of a communication device to

facilitate a drug-trafficking crime in violation of 21 U.S.C. § 843(b). We take

jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM.



                                  I. BACKGROUND

      Mr. Goodwin’s convictions stem from his 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. Generally, the

conspiracy involved Monterial Wesley and Shevel Foy pooling their money

together to purchase large quantities of cocaine from Thomas Humphrey. Mr.

Wesley and Mr. Foy then sold the cocaine to mid-level dealers, including Henry

Grigsby, who sold it to street-level dealers like Mr. Goodwin.

      On February 1, 2008, Mr. Goodwin and twenty-three other individuals were

charged by superseding indictment with one count of conspiracy to possess more

than fifty grams of cocaine base and five kilograms of cocaine with intent to

distribute. Mr. Goodwin was also charged with using a cellular telephone in

furtherance of that conspiracy.

      At trial, several government witnesses testified regarding Mr. Goodwin’s

role in the conspiracy. First, Officer Eric Jones testified that he interviewed Mr.

Goodwin after his arrest, and that during the interview, Mr. Goodwin admitted to

purchasing between one and two ounces of cocaine from Mr. Grigsby on

                                        -2-
approximately six to eight occasions. Officer Jones noted that these amounts are

consistent with distribution as opposed to personal use. Officer Jones’s testimony

regarding the interview was later corroborated by the testimony of Officer

Timothy McCue, who was also present during the interview.

      Additionally, Officer Jones identified Mr. Goodwin’s voice on four phone

calls which were played for the jury. In the first call, Mr. Goodwin sought to

purchase 2 1/4 ounces of cocaine from Mr. Grigsby. In the second call, Mr.

Goodwin inquired whether Mr. Wesley had any cocaine and they discussed the

poor quality of cocaine Mr. Goodwin had previously purchased. In the third call,

Mr. Goodwin sought to purchase cocaine from Mr. Grigsby, Mr. Grigsby

informed Mr. Goodwin that he only had crack cocaine, and Mr. Goodwin

indicated that he might still be interested in making a purchase. In the final call,

Mr. Goodwin again sought to purchase 2 1/4 ounces of cocaine from Mr. Grigsby.

      Consistent with the testimony of Officers Jones and McCue, Mr. Grigsby

testified that he sold cocaine to Mr. Goodwin, although he indicated that the

amounts ranged from a half ounce to 2 1/4 ounces. Mr. Grigsby also testified that

while he did not care what Mr. Goodwin did with the drugs he purchased, based

on the quantities, he assumed Mr. Goodwin was selling them.

      Finally, Keenan Ringgold, another co-defendant, testified that on at least

four to five occasions, Mr. Goodwin purchased up to 3.5 grams of crack cocaine

from him.

                                         -3-
      Ultimately, the jury found Mr. Goodwin guilty on both the conspiracy and

communication-device counts. After the jury’s verdict, Mr. Goodwin filed a

motion for acquittal or, in the alternative, new trial, which the district court

denied. The district court sentenced Mr. Goodwin to a mandatory minimum

sentence of life imprisonment on the conspiracy count and forty-eight months’

imprisonment on the communication-device count to run concurrently. Mr.

Goodwin now appeals both his conviction and his sentence.

                                  II. DISCUSSION

A.    Conspiracy

      Mr. Goodwin first challenges the sufficiency of the evidence to support his

conviction for conspiracy. We review de novo whether the government presented

evidence sufficient to support a criminal conviction. United States v. Wardell,

591 F.3d 1279, 1286 (10th Cir. 2009). “Evidence is sufficient to support a

conviction if, viewing the evidence in the light most favorable to the government,

a reasonable jury could have found the defendant guilty beyond a reasonable

doubt.” United States v. Willis, 476 F.3d 1121, 1124 (10th Cir. 2007) (quotations

omitted). In conducting our analysis, we consider both direct and circumstantial

evidence, together with the reasonable inferences to be drawn therefrom, and

“[w]e will not weigh conflicting evidence or second-guess the fact-finding

decisions of the jury.” United States v. Sells, 477 F.3d 1226, 1235 (10th Cir.

2007) (quotations omitted).

                                          -4-
       To obtain a conspiracy conviction, 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). “[I]nterdependence exists

where each co-conspirator’s activities constituted essential and integral steps

toward the realization of a common, illicit goal.” United States v. Edwards, 69

F.3d 419, 431 (10th Cir. 1995) (internal quotations omitted). The

interdependence element, however, does not require that the government prove

“the conspirators know the identities or details of each scheme or have

connections with all other members of the conspiracy.” Id. (quotations omitted).

       Mr. Goodwin argues that the government failed to demonstrate

interdependence between himself and the other conspirators because it established

only that he bought unremarkable quantities of drugs from members of the

conspiracy, some of which he resold. 1 In the same vein, Mr. Goodwin contends


       1
         Although Mr. Goodwin argued in his opening brief that he had, at most, a buyer-
seller relationship with the conspirators and thus was not a part of the conspiracy under
the “buyer-seller rule,” he appears to have abandoned that argument in his reply brief.
Indeed, Mr. Goodwin no longer seems to contest that he bought the drugs for resale.
Because the buyer-seller rule does not apply when the defendant purchases drugs for
resale, see United States v. Ivy, 83 F.3d 1266, 1285–86 (10th Cir. 1996) (“[T]he purpose
of the buyer-seller rule is to separate consumers, who do not plan to redistribute drugs for
profit, from street-level, mid-level, and other distributors, who do intend to redistribute
drugs for profit, thereby furthering the objective of the conspiracy.”), to the extent Mr.
Goodwin maintains his buyer-seller rule argument, it is plainly without merit.

                                            -5-
that he could not have been integral to the conspiracy because he easily could

have been replaced by another low-level dealer. More generally, Mr. Goodwin

argues that “something more than mere purchase for resale” is required before a

drug conspiracy conviction can properly lie.

      Viewed in the light most favorable to the government, the evidence in this

case shows that Mr. Goodwin purchased at least sixteen ounces of cocaine from

Mr. Grigsby and additional quantities from Mr. Ringgold, which he then resold.

Furthermore, Mr. Goodwin was familiar with several other members of the

conspiracy, and on at least one occasion, he sought to purchase cocaine directly

from Mr. Wesley, one of the leaders of the conspiracy. On that occasion, Mr.

Goodwin also complained to Mr. Wesley about the quality of a separate prior

purchase. Finally, although the evidence demonstrates that Mr. Goodwin handled

smaller drug quantities than some of the other conspirators, he could have

nevertheless been an integral part of the conspiracy, as the jury found. Indeed,

many drug conspiracies cannot succeed without street-level dealers like Mr.

Goodwin. See United States v. Dickey, 736 F.2d 571, 582 (10th Cir. 1984)

(“[W]here large quantities of drugs are being distributed, each major buyer may

be presumed to know that he is a part of a wide-ranging venture, the success of

which depends on performance by others whose identity he may not even know . .

. Even the remote members of the conspiracy [are] undeniably dependent on the

success of each transaction to ensure the continuing prosperity of the overall

                                        -6-
scheme.”); see also United States v. Ivy, 83 F.3d 1266, 1285–86 (10th Cir. 1996)

(noting that “street-level, mid-level, and other distributors, who [] intend to

redistribute drugs for profit . . . further[] the objective of the conspiracy.”).

      Based on this evidence, it was reasonable for the jury to conclude that Mr.

Goodwin, though a low-level participant, was nonetheless integral to the drug

conspiracy. Accordingly, we conclude that the evidence is sufficient to support

Mr. Goodwin’s conspiracy conviction.

B.    Co-Conspirator Statements

      Mr. Goodwin also argues that the telephone conversations were improperly

admitted as co-conspirator statements. “We review the district court’s decision to

admit statements of a co-conspirator for abuse of discretion.” United States v.

Eads, 191 F.3d 1206, 1210 (10th Cir. 1999).

      “Co-conspirator statements are not considered hearsay under Rule

801(d)(2)(E) and may properly be admitted if the court finds: 1) a conspiracy

existed; 2) both the declarant and the defendant against whom the declaration is

offered were members of the conspiracy; and 3) the statement was made in the

course of and in furtherance of the conspiracy.” Id. (quotations omitted).

Here, Mr. Goodwin contends only that he was not a member of the conspiracy and

thus the statements were improperly admitted against him. We reject this

argument because, as we hold above, there was sufficient evidence to support Mr.

Goodwin’s conviction for conspiracy.

                                           -7-
      Mr. Goodwin also asks this court to require district courts to hold a James

hearing 2 prior to the admission of co-conspirator statements. We decline to do so.

Although we have repeatedly indicated our strong preference for James

proceedings when the government relies on co-conspirator statements, it remains

within the district court’s discretion to either hold such a hearing or, as the

district court did in this case, provisionally admit the evidence subject to the

eventual laying of a sufficient foundation. See United States v. Gonzalez-

Montoya, 161 F.3d 643, 648 (10th Cir. 1998); United States v. Owens, 70 F.3d

1118, 1123 (10th Cir. 1995).

C.    Jury Instruction

      Mr. Goodwin next argues that the district court erred in instructing the jury

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

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

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

evidence supported the instruction. Instead, Mr. Goodwin asks this court to

categorically “reject the notion that one can aid or abet a conspiracy.” Mr.

Goodwin’s argument is substantially similar to that of his co-defendant, Latysha

Temple, in Case No. 09-3289, United States v. Temple. Accordingly, we adopt

our analysis from Temple, and affirm the district court’s instruction to the jury for

the reasons stated in that opinion.

      2
          See United States v. James, 590 F.2d 575, 582 (5th Cir. 1979).

                                             -8-
D.    Motion for New Trial

      Mr. Goodwin also argues that the district court abused its discretion by

denying his motion for a new trial. He bases this argument on his contentions

that: (1) there was insufficient evidence to support his conspiracy conviction; and

(2) the aiding and abetting jury instruction was improper. Because we reject the

underlying arguments, we hold that the district court correctly denied Mr.

Goodwin’s motion for a new trial.

E.    Severance

      Mr. Goodwin also contends that the district court erred in failing to sever

his trial from that of his co-defendants. Because Mr. Goodwin failed to file a

motion to sever with the district court, we review this claim for plain error.

United States v. Iiland, 254 F.3d 1264, 1269 (10th Cir. 2001).

      The decision whether to grant a severance is within the discretion of the

district court. United States v. Olsen, 519 F.3d 1096, 1102 (10th Cir. 2008). The

Supreme Court has noted that “[t]here is a preference in the federal system for

joint trials of defendants who are indicted together.” Zafiro v. United States, 506

U.S. 534, 537 (1993). Indeed, “we recognize a presumption in a conspiracy trial

that coconspirators charged together should be tried together.” United States v.

Wardell, 591 F.3d 1279, 1300 (10th Cir. 2009). Accordingly, when challenging

the denial of severance, a defendant bears the heavy burden of demonstrating

actual prejudice which outweighs the expense and inconvenience of separate

                                         -9-
trials. United States v. Hutchinson, 573 F.3d 1011, 1025 (10th Cir. 2009).

      Here, Mr. Goodwin contends that the joint trial caused him prejudice

because of the disparity between the minimal incriminating evidence introduced

against him and the overwhelming incriminating evidence introduced against his

co-defendants which did not relate to him. This argument, without more, is

insufficient to satisfy Mr. Goodwin’s burden. Indeed, “the nearly insuperable

rule in this circuit is that a defendant cannot obtain severance simply by showing

that the evidence against a co-defendant is more damaging than the evidence

against [himself].” Wardell, 591 F.3d at 1300. Because Mr. Goodwin argues

only that he was prejudiced by the quantitative disparity between the evidence

presented against him and the evidence presented against his co-defendants, we

cannot say that the district court committed any error, let alone plain error, in

failing to grant him a severance. See United States v. Hack, 782 F.2d 862, 871

(10th Cir. 1986) (“[A] mere disparity in the evidence from a quantitative

standpoint against each defendant in a conspiracy case, without more, provides no

justification for severance.”).

F.    Lack of Venue

      Mr. Goodwin also contends that the government failed to adduce sufficient

evidence to establish venue in Kansas for the § 843(b) communication-device

count. Although venue is not a substantive element of a § 843(b) offense, it must

be proven in every criminal case. United States v. Kelly, 535 F.3d 1229, 1233

                                         - 10 -
(10th Cir. 2008). Unlike the other elements which must be proven beyond a

reasonable doubt, venue need only be proven by a preponderance of the evidence.

United States v. Miller, 111 F.3d 747, 749–50 (10th Cir. 1997). “Whether the

government presented sufficient evidence to support a jury’s finding on venue is a

question of law,” which we review de novo. Kelly, 535 F.3d at 1232; see also

United States v. Hamilton, 587 F.3d 1199, 1205 n. 3 (10th Cir. 2009). “In

reviewing whether venue lies in a particular district . . . [we] view[] the evidence

in the light most favorable to the government and mak[e] all reasonable

inferences and credibility choices in favor of the finder of fact.” Kelly, 535 F.3d

at 1232–33.

      To obtain a conviction under 21 U.S.C. § 843(b), the government must

prove that the defendant: (1) knowingly or intentionally (2) used a telephone or

other communications facility (3) to commit, cause or facilitate the commission of

a drug felony. United States v. Milton, 62 F.3d 1292, 1294–95 (10th Cir. 1995).

For § 843(b) offenses, venue is appropriate in both the district where the call was

made and in the district where it was received. See, e.g., Andrews v. United

States, 817 F.2d 1277, 1279 (7th Cir. 1987) (holding that for purposes of §

843(b), “the crime is committed both where the call originates and where it is

received”); United States v. Barnes, 681 F.2d 717, 724 (11th Cir. 1982) (same).

      In its order denying Mr. Goodwin’s motion for judgment of acquittal, the

district court summarized the evidence which supported venue in this case:

                                        - 11 -
      Mr. Goodwin, Mr. Trinkle, and Mr. Grigsby all lived in
      Leavenworth, Kansas. As to Mr. Goodwin and Mr. Trinkle, no
      evidence was ever presented that they left Leavenworth to transact
      business . . . In the phone call that forms the basis for Count 11, Mr.
      Goodwin asked Mr. Grigsby for a two-way soft. Mr. Grigsby then
      explained that he would call Mr. Goodwin back as soon as he got in
      town, and Mr. Goodwin asked what the ticket or price was so he
      could have it ready when Mr. Grigsby arrived. From this
      conversation, the jury could have inferred that the town Mr. Grigsby
      referred to was Leavenworth, and consequently, Mr. Goodwin, at the
      very least, was in Kansas when the call was made.

United States v. Wesley, 649 F. Supp. 2d 1232, 1247 (D. Kan. 2009) (citation

omitted).

      Mr. Goodwin does not dispute the district court’s summary of the evidence

or its interpretation of the phone call. Instead, Mr. Goodwin argues that the

government could have had Mr. Grigsby testify concerning either his or Mr.

Goodwin’s location at the time of the call or offered telephone records identifying

Mr. Goodwin’s location at the time of the call. In the absence of such evidence,

Mr. Goodwin argues, the jury was left “to rely on assumptions and conjecture to

fill the government’s evidentiary gap.” This argument is unavailing.

      As we have repeatedly held, the government is not required to introduce

direct evidence concerning venue. Kelly, 535 F.3d at 1235. Rather, “[t]he

government may prove [venue] by a preponderance of direct or circumstantial

evidence.” Id. (emphasis in original) (citing 2 Charles Alan Wright, Federal

Practice & Procedure § 307, at 347 (3d ed. 2000) (“[l]ike any other fact, venue

may be proved by circumstantial evidence.”)). Having reviewed the record, we

                                        - 12 -
are satisfied that the evidence, as set forth by the district court, was sufficient for

a reasonable jury to infer that Mr. Goodwin was in Kansas at the time he made or

received the phone call in question. Accordingly, venue was appropriate in

Kansas for the § 843(b) count.

G.    Life Sentence

      Finally, Mr. Goodwin argues that his life sentence for a first violation of 21

U.S.C. § 841 constitutes cruel and unusual punishment. As Mr. Goodwin

acknowledges, however, we are bound by our precedent which holds that the

imposition of a life sentence for a first-time felony conviction of possession with

intent to distribute fifty grams or more of cocaine does not violate the Eighth

Amendment. See United States v. Williams, 576 F.3d 1149, 1165 (10th Cir. 2009)

(citing Harmelin v. Michigan, 501 U.S. 957, 961 (1991); United States v.

McKneely, 69 F.3d 1067, 1080–81 (10th Cir. 1995)).

                                 III. CONCLUSION

      For the foregoing reasons, we AFFIRM.



                                         ENTERED FOR THE COURT,



                                         Deanell Reece Tacha
                                         Circuit Judge




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