                                                                          F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          NOV 16 1998
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee                     No. 97-2163
          v.                                          D. New Mexico
 ALFRED J. ELLICK                                (D.C. No. CR-96-220-JC)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before ANDERSON, MCKAY, and EBEL, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      Alfred J. Ellick appeals his conviction for conspiracy to possess

methamphetamine with intent to distribute and aiding and abetting, violations of



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3
21 U.S.C. § 846 and 18 U.S.C. § 2, for which he was sentenced to 151 months

imprisonment. He contends (1) that there was a prejudicial variance between the

indictment and the government’s proof at trial; (2) that hearsay and illegally

obtained evidence were improperly introduced; and (3) that his motion to sever

defendants was improperly denied. He also challenges his sentence, contesting

both the district court’s drug quantity calculation and its denial of his motion for

a downward departure. We reject each of Ellick’s claims, and affirm both his

conviction and his sentence.



                                I. BACKGROUND

      Ellick’s conviction stems from drug trafficking activities in California and

New Mexico. In Count I of a five-count indictment, he and ten codefendants

were charged with conspiring “together and with each other and with other

persons” to “[p]ossess[] with intent to distribute 1 kilogram and more” of a

substance containing methamphetamine. R. Vol. I, Tab 43. In this count the

indictment named Ellick, Christopher Lee, Ulysses Harper, Bryant Marshall,

Melanie Young, Ricardo Vera, Michael Clark, Joe Altamirano, Mary Sanchez,

Burch Woody McCoy, and Kenneth Brown. 1 Ellick, Harper, Marshall, McCoy,



      1
       Ellick was charged in Count II with possession of methamphetamine, but
this charge was later dismissed. He was not named in Counts III-V.

                                          -2-
and Altamirano were tried together. At trial, Clark, Young, and Brown testified

for the government pursuant to plea agreements. At the time of trial, Lee and

Sanchez were fugitives.

      We first summarize the evidence of a conspiracy to distribute

methamphetamine, and then review the evidence which specifically implicates

Ellick.



A. Evidence of Conspiracy

      At trial, evidence of drug trafficking focused on four episodes, each

involving a quantity of methamphetamine and various codefendants. Ellick was

not present at any of these events, but as we will subsequently explain, Ellick was

tied to them by other evidence.



      1. Five Pounds of Methamphetamine Confiscated in San Bernardino

      In late 1994 or early 1995, the Drug Enforcement Agency (DEA) began

receiving information about a possible methamphetamine distribution ring in

Roswell, New Mexico. Through a series of tips and cooperative law enforcement

efforts, Christopher Lee and Ulysses Harper were apprehended in San Bernardino,

California on June 14, 1995, as they prepared to take an Amtrak train to

Albuquerque. Lee and Harper identified themselves as Christopher Lee and


                                        -3-
Larris Slaton (one of Harper’s aliases). After initial questioning, officers

obtained Lee and Harper’s consent to search their persons and luggage.

       In their search of Harper and his luggage, officers discovered a gift-

wrapped package containing five pounds of methamphetamine. (Harper’s

fingerprint was later found on the package.) They also found a handgun, a

“pay/owe” accounting sheet, $4,800 in cash, and a black address book. The

address book listed Ellick’s phone number next to the initials “A.J.” In addition,

officers discovered that Lee and Harper were each carrying a small canister of

pepper spray. They were both arrested and were later released from custody.

       Further investigation revealed that on this trip Harper rented a hotel room

using an identification card issued to him with the address of 83 Holman in

Roswell, New Mexico–Ellick’s residence. Baxter Jones (under separate

indictment) testified under a plea agreement that both he and Ellick were to have

received a portion of the confiscated methamphetamine. Michael Clark testified

that Ricardo Vera told him about the loss of the drugs. Bryant Marshall testified

that he drove Lee and Harper to the train station in Albuquerque for the first leg

of the trip.




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      2. One Pound of Methamphetamine Delivered to Young’s Residence

      In April 1996, Federal Express employees in Memphis, Tennessee

intercepted one pound of methamphetamine in a package addressed to Melanie

Young in Alamogordo, New Mexico. It had been mailed by “C.Y. Rodriquez”

from “Mail Plus” in Ontario, California. Vera lived in Ontario. On April 4,

1996, a DEA agent posing as a Federal Express employee delivered the package

while other agents surveilled the residence. Young signed for the package and the

undercover agent left. Then the other agents surrounded and searched the house

pursuant to a warrant. Lee and Marshall were also at the residence and

unsuccessfully tried to flee. Evidence recovered from the residence included the

package, a pistol, a book containing phone numbers for Marshall and Lee, a slip

of paper with the name “C.Y. Rodriquez” and the phone number of Vera, and

photographs of Harper and Lee. Officers also found two letters from Harper to

Young, sent from jail in Arizona, dated February and March 1996.



      3. Woodson’s Purchase of Methamphetamine from Vera via Clark

      After the events at Young’s residence, DEA agents interviewed Christopher

Lee. Lee cooperated with the agents and on May 1, 1996, he gave his pager to

Agent Steven Woodson. Later that day, Woodson received pages from Vera and

Altamirano. Woodson then began posing as one of Lee’s distributors. He spoke


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with Vera by telephone and arranged a methamphetamine purchase. DEA agents

wired over $2,000 to Vera and Clark, and Clark delivered six ounces of

methamphetamine to undercover DEA agents in Roswell, New Mexico on June 6,

1996.



    4. Woodson’s Purchase from Altamirano, McCoy, Sanchez, and
Brown

        After receiving Altamirano’s page, Agent Woodson called him to arrange

an undercover drug purchase. Altamirano asked agents to wire money to him (in

Burch Woody McCoy’s name) in Ontario, California, as a show of good faith.

They wired at least $900, and Altamirano confirmed receipt of the money,

promising a delivery in Albuquerque, where he claimed to have other distributors.

On June 14, 1996, Altamirano, Brown, Sanchez, and McCoy met with Woodson

and other DEA agents in Albuquerque, and delivered methamphetamine in

exchange for $2000. All four were then arrested.



B. Evidence Linking Ellick To Methamphetamine Distribution

        At trial, the government presented evidence linking Ellick to the drug

trafficking activities detailed above, including dealings with Lee, Vera,

Altamirano, Harper, and others. Michael Clark, testifying under a plea

agreement, stated that he knew Ellick as one of a number of people who had

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traveled to California and stayed at Vera’s home in Ontario, people to whom Vera

sold drugs, whom Vera called “big money.” Trial Transcript (Tr.) at 409. Clark

testified that these people included not only Ellick but Lee, Harper, and Marshall.

The government also presented receipts from various wire transfers, including one

from Ellick to Vera ($90, no date specified), one from Lee to Harper ($899, dated

December 1994), two from Marshall to Vera (both undated), and one from Vera to

Altamirano (dated January 1996).

      The most direct evidence against Ellick was the testimony of Agent

Woodson. According to Woodson, DEA agents and other law enforcement

officers executed a search warrant at Ellick’s residence on May 30, 1996. During

the search, Woodson and one other officer asked Ellick if they could talk to him.

Ellick stated that he had a doctor’s appointment; the officers told him he was free

to go to it. They informed Ellick that he was not under arrest and that he would

not be arrested that day. Ellick stated that he did not want to go to his doctor’s

appointment, and then walked the officers to his backyard and sat down with

them. Woodson further testified that the officers did not coerce or threaten Ellick

and that no guns were drawn.

      According to Woodson’s testimony, Ellick admitted to being involved with

Christopher Lee and others in the distribution of methamphetamine. Ellick told

the officers he had traveled four or five times between California and Roswell and


                                          -7-
had delivered a total of approximately 14 ounces of methamphetamine. He told

the officers that he had purchased cell phones for drug couriers and that he had

purchased a pager for Lee. He stated that he and Lee had stayed at Vera’s

residence in California. Woodson further testified that Ellick admitted to having

stolen scales from Lee. Ellick told the officers that Lee believed Ellick owed him

$1500 for previously distributed methamphetamine. The district court denied

Ellick’s pretrial motion to suppress Woodson’s testimony regarding these

statements.

      Officers executing the search warrant found physical evidence linking

Ellick to drug trafficking. They found a handwritten transaction record detailing

exchanges of “grams” placed in “bags” for dollar amounts, involving “Mr. E,”

“Mr. P,” and “Marshall.” (Christopher Lee used “Pimp” as a nickname.) For

example, “In California, Mr. E. gave Mr. P. $1,000 in $100 bills for the balance

of Monday, January 15, 1996, pickup of 12 grams.” Tr. at 355. One entry

denotes a $3,400 transfer from “Mr. E” to “Mr. P.” Id. Officers also found a

handgun. They obtained telephone records for Ellick’s residence documenting

phone calls to Ricardo Vera’s pager, as well as a $3,240 cellular telephone bill.

      Other evidence found in Ellick’s residence linked Ellick with Harper.

Officers found a receipt in the name of Larris Slaton (one of Harper’s aliases), as

well as a photograph of Harper matching one found in Young’s residence. They


                                         -8-
found a handwritten letter from Ellick to a state judge on behalf of Harper, stating

“Ulysses has lived with me and my family for the last four years. He has been a

positive influence on us all.” Tr. at 352. Investigators had previously linked

Ellick to Harper when they found Ellick’s address on the ID card used by Harper

at Travelodge in San Bernardino, and Ellick’s phone number in Harper’s address

book.

        Prior to trial, the court held a competency hearing and determined that

Ellick was competent to stand trial. At trial Ellick was convicted of Count I, and

he was later sentenced to 151 months imprisonment.



                                 II. DISCUSSION

A. Variance

        Ellick argues that there was a variance between the indictment, which

alleged a single conspiracy, and the government’s proof at trial, which Ellick

claims showed multiple conspiracies. Where a single conspiracy is charged in the

indictment but the government proves only multiple conspiracies, a defendant

who is thereby substantially prejudiced is entitled to a reversal of his conviction.

See Kotteakos v. United States, 328 U.S. 750, 773-74 (1946); United States v.

Edwards, 69 F.3d 419, 432 (10th Cir. 1995). Where, as here, a jury determines




                                          -9-
that a single conspiracy was proven at trial, “we review the jury’s decision in a

light most favorable to the government.” Edwards, 69 F.3d at 432.

      Under this deferential standard, we conclude that the government proved a

single conspiracy. The evidence showed a large-scale operation run by Vera and

Altamirano. This operation utilized various distributors and retailers, and

included all the persons named in Count I of the indictment. Although not all

these participants knew each other, “[w]here large quantities of narcotics are

being distributed, each major buyer may be presumed to know that he is part of a

wide-ranging venture, the success of which depends on performance by others

whose identity he may not even know.” United States v. Watson, 594 F.2d 1330,

1340 (10th Cir. 1979). Ellick’s own statements and the physical evidence

gathered at his house overwhelmingly implicate Ellick in this conspiracy. Ellick’s

handling of large quantities of methamphetamine can reasonably be inferred from

the transaction record found at his house, as well as from the testimony of his

direct dealings with Lee, Harper, Vera, Clark, and Marshall. The jury could

reasonably infer that Ellick belonged to one branch of what he must have known

to be an extensive illegal operation with multiple branches.




                                         -10-
B. Ellick’s Statements to Officers at his Residence

      Ellick argues that his conversation with law enforcement officers at his

residence constituted custodial interrogation in violation of his Fifth Amendment

rights under Miranda v. Arizona, 384 U.S. 436 (1966). He further argues that his

statements were involuntary. Ellick made both of these arguments in a pretrial

suppression motion; it was denied by the district court after an evidentiary hearing

where the court heard testimony from Agent Woodson and Mr. Ellick. The court

determined that Woodson was credible and that Ellick was not credible. The

court held that Ellick was not “in custody” when he made the statements and that

therefore Miranda did not apply. The court made no specific finding as to

voluntariness. Ellick later renewed the motion and it was denied without further

findings.



      1. Miranda

      Whether Ellick was “in custody” for purposes of Miranda is a legal issue

which we review de novo, “with proper deference to the district court’s findings

of historical fact and credibility determinations.” United States v. Erving L., 147

F.3d 1240, 1246 (10th Cir. 1998). A person is “in custody” for purposes of

Miranda only if “a reasonable person in the suspect’s position would have

understood his situation as the functional equivalent of formal arrest.” Id. at


                                        -11-
1246-47 (quoting Berkemer v. McCarty, 468 U.S. 420, 442 (1984)) (internal

quotes and alterations omitted).

      Because the district court determined that only Agent Woodson was

credible, we refer to his testimony. Woodson testified that officers repeatedly

told Ellick that he could leave at any time and that he was not under arrest. They

recommended that he go to his doctor’s appointment if that was what he wanted

to do. No officers drew guns and none were in uniform. A reasonable person

might hesitate to leave when law officers are searching his house, but after being

told that he could leave and that he would not be arrested that day, he would not

perceive the situation as tantamount to formal arrest. Therefore Ellick was not

“in custody” and his statements were properly admitted.



      2. Voluntariness

      A determination of voluntariness is based on the totality of the

circumstances. See Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973); United

States v. Perdue, 8 F.3d 1455, 1466 (10th Cir. 1993). “We examine several

factors including the characteristics of the suspect, such as his age, intelligence,

and education, and the details of the interrogation, such as whether the suspect

was informed of his rights, the length of the detention and the interrogation, and

the use or threat of physical force.” United States v. Nguyen, 155 F.3d 1219,


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1222 (10th Cir. 1998). Because the district court did not make specific findings

on the issue of voluntariness, we must uphold its ruling “if there is any reasonable

view of the evidence to support it.” United States v. Morgan, 936 F.2d 1561,

1565 (10th Cir. 1991).

      We conclude that there is evidence to support the district court’s ruling.

While Ellick claims to be of “less than average intelligence,” Reply Br. at 3,

according to Woodson, Ellick gave detailed statements that were corroborated by

several other persons investigated. Although Ellick testified that he was taking

numerous medications at the time, Woodson stated that Ellick was “[c]oherent,

competent, [and] understood exactly what the questions were and the answers. He

would state certain things, and then other things he would hedge on.” Supp. Tr.

at 7. Woodson testified that although Ellick was never informed of his rights and

even though he spoke with Ellick for about an hour, there were no threats of

force. Under these circumstances Ellick’s statements can reasonably be viewed as

voluntary and we therefore refuse to disturb the district court’s ruling.



C. Hearsay Statements of Lee

      Ellick argues that the district court wrongly denied his motion in limine to

exclude statements made by Christopher Lee to interviewing officers, and that

these hearsay statements were improperly introduced at trial. This claim is


                                         -13-
without merit. Contrary to Ellick’s assertion in his opening brief, Agent Woodson

did not testify at trial to the details of his interviews with Lee. Ellick points to

only one hearsay statement by Lee which was admitted at trial: Lee’s

corroboration of Ellick’s statement about a supposed debt to Lee. 2 Ellick’s

attorney did not object to the admission of this statement and therefore we review

its admission only for plain error. See United States v. Cass, 127 F.3d 1218, 1225

(10th Cir. 1997).

      Ellick’s claim fails because he cannot show an obvious and substantial

error which deprived him of the right to a fair and impartial trial. See United

States v. Nieto, 60 F.3d 1464, 1467 (10th Cir. 1995). The challenged statement

was only a small piece of corroborating evidence presented in the context of




      2
          [United States’ Direct Examination of DEA Agent Woodson:]

      Q:       . . . [W]as there anything that Mr. Ellick told you that you
               found to be corroborated by other sources?

      A:       Yes, ma’am.

      Q:       Can you give us an example of that.

      A:       Well, his statement to us about being owed 150–or that Mr.
               Lee believed he owed $1500 was exactly what Mr. Lee had
               told us.

Tr. at 536.

                                          -14-
overwhelming evidence of guilt, including Ellick’s own admissions. It did not

affect the fairness of the trial in any substantial way.

      In his reply brief, Ellick appears to contest the admission of hearsay before

the grand jury. This argument was not raised in his opening brief and we

therefore will not consider it. See State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d

979, 984 n.7 (10th Cir. 1994).



D. Severance

      Ellick contests the district court’s denial of his motion to sever. Counsel

for Ellick filed three such pretrial motions, making distinct arguments in each.

All three were denied. Ellick does not specify which of the denials he is

appealing. However, from the arguments in his briefs we conclude it is only his

“Motion to Sever Defendants” filed January 15, 1997. Ellick argues that the

district court’s failure to sever deprived him of the opportunity to elicit

exculpatory testimony from Harper, and to confront Lee regarding Lee’s alleged

statements to Woodson.

      We review the denial of a motion to sever for abuse of discretion. United

States v. Lopez, 100 F.3d 113, 119 (10th Cir. 1996). Ellick bears the “heavy

burden” of showing “actual prejudice” from the failure to sever. Id.; see also

Zafiro v. United States, 506 U.S. 534, 539 (1993) (discussing examples of


                                          -15-
prejudice). More specifically, “when the accused’s asserted reason for severance

is the need for the testimony of a codefendant, he must show that he would call

the codefendant at a severed trial, that the codefendant would in fact testify, and

that the testimony would be favorable to the moving defendant.” United States v.

Dickey, 736 F.2d 571, 590 (10th Cir. 1984).

      Ellick has offered only his bare assertions that Harper and Lee would have

testified in his favor at a severed trial. We cannot so easily conclude they would

have waived their Fifth Amendment privileges. Furthermore, Lee was a fugitive

at the time of trial, and Ellick has not told us how he would have secured Lee’s

testimony in his favor. Ellick’s hopeful, unsupported assertions fall short of

establishing “actual prejudice.”



E. Amount of Methamphetamine Attributed to Ellick at Sentencing

      Ellick argues that he was improperly sentenced for the five pounds of

methamphetamine seized from Harper and Lee as well as the one pound seized at

Young’s residence. The sentencing judge calculated Ellick’s sentence based on a

quantity of “at least 2.704 net kilograms of methamphetamine,” Sent. Tr. at 7, or

approximately six pounds. This was the same quantity indicated in the

presentence report.




                                         -16-
      We review a district court’s drug quantity calculation for clear error.

“[W]e will not disturb it unless it has no support in the record, or unless after

reviewing all the evidence we are firmly convinced that an error has been made.”

United States v. Edwards, 69 F.3d 419, 438 (10th Cir. 1991). In a drug

conspiracy case, a district court calculates a defendant’s base sentence level using

not only the quantity with which he personally dealt, but also any amounts “which

he reasonably foresaw or which fell within the scope of his particular agreement

with the conspirators.” United States v. Ivy, 83 F.3d 1266, 1289 (10th Cir. 1996).

The government bears the burden of showing this quantity by a preponderance of

the evidence, using evidence with at least a “minimum indicia of reliability.”

United States v. Cruz Camacho, 137 F.3d 1220, 1225 (10th Cir. 1998).

      The evidence supports Ellick’s sentence. Baxter Jones testified at trial that

Ellick was to have received part of the methamphetamine seized from Harper and

Lee. In addition, there was extensive evidence that Ellick had distributed drugs

obtained from Lee, including Ellick’s own statements. The presentence report

indicates that Ellick provided money for both packages of seized drugs. It also

indicates that shortly after the arrests at Young’s residence, Young telephoned

Ellick’s residence and spoke with his wife about the pound of methamphetamine

seized. Ellick offered no witnesses or evidence at sentencing, and he has given us




                                          -17-
no reason to conclude that the government’s evidence was not sufficiently reliable.



F. Downward Departure

      Ellick argues that the district court improperly denied his motion for a

downward departure. We will not review the denial of a downward departure

“unless the judge’s language unambiguously states that the judge does not believe

he has authority to downward depart.” United States v. Rodriguez, 30 F.3d 1318,

1319 (10th Cir. 1994). Prior to sentencing, Ellick submitted a written motion

requesting a downward departure. At sentencing, the judge stated, “I have read

your Motion for Downward Departure and find it to be without merit.” Sent. Tr.

at 3. As we read it, this statement implies that the judge believed he had authority

to grant the motion, but chose to deny it after considering the merits. Never did

the judge unambiguously indicate that he believed he lacked authority to grant the

motion. Therefore we will not review his decision.



G. Competency and Ineffective Assistance of Counsel

      Ellick’s supplemental brief appears to argue both that he was incompetent

to stand trial and that he was denied the effective assistance of counsel. As to the

competency issue, we have reviewed the transcript of the competency hearing and

find that the court’s determination that Ellick was competent to stand trial was not


                                        -18-
clearly erroneous or arbitrary. See United States v. Crews, 781 F.2d 826, 833

(10th Cir. 1986) (citing Wolcott v. United States, 407 F.2d 1149, 1150 (10th Cir.

1969)). As for Ellick’s claim of ineffective assistance of counsel, we decline to

review it on direct appeal. See United States v. Galloway, 56 F.3d 1239, 1240

(10th Cir. 1995).

      For the foregoing reasons, we AFFIRM.

                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge




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