                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           DEC 6 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 98-1199
                                                    (D.C. No. 96-CR-444-N)
    ARNIE PORTER,                                          (D. Colo.)

                Defendant-Appellant.




                            ORDER AND JUDGMENT            *




Before TACHA , KELLY , and BRISCOE , 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)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the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.
       Defendant Arnie Porter appeals his convictions for conspiracy to distribute

cocaine/crack cocaine, mail fraud, distribution of cocaine, and two counts of

distribution of crack cocaine, for which he received concurrent life sentences.

His appointed attorney has filed a brief pursuant to   Anders v. California , 386 U.S.

738 (1967), and has moved for leave to withdraw from the case. We grant

counsel’s motion to withdraw and affirm defendant’s convictions and sentence.

       Under Anders , “if [appellate] counsel finds his [client’s] case to be wholly

frivolous, after a conscientious examination of it, he should so advise the court

and request permission to withdraw.”      Id. at 744. This request must “be

accompanied by a brief referring to anything in the record that might arguably

support the appeal.”   Id. In addition, “[a] copy of counsel’s brief should be

furnished the indigent and time allowed him to raise any points that he chooses.”

Id. The appellate court then “proceeds, after a full examination of all the

proceedings, to decide whether the case is wholly frivolous.”    Id.

       Here, defendant has filed a pro se supplemental brief and an addendum to

that brief raising the following issues: (1) the government violated 18 U.S.C.

§ 201(c)(2) by making promises to witnesses Washington and McDonald in

exchange for their testimony; (2) the government denied defendant due process by

knowingly eliciting perjured testimony from witnesses Washington and

McDonald; (3) the district court erred in relying on perjured testimony regarding


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the drug amounts and in assuming the cocaine was crack; (4) the district court

erred in enhancing his sentence for being an organizer or leader of the conspiracy

and for obstructing justice; (5) the district court erred in failing to reduce his

sentence for acceptance of responsibility; (6) the evidence was not sufficient to

convict him for mail fraud; (7) his Fifth and Sixth Amendment rights were

violated by the testimony of a fellow prisoner regarding statements made by

defendant; and (8) his due process rights were violated by his life sentence on the

conspiracy count because the quantity and type of cocaine were elements of the

offense which should have been determined by the jury beyond a reasonable

doubt, citing Jones v. United States , 119 S. Ct. 1215 (1999). Each of these issues

will be addressed.

      Defendant’s first issue is foreclosed by our en banc opinion in    United

States v. Singleton , 165 F.3d 1297, 1298 (10th Cir.),   cert. denied , 119 S. Ct. 2371

(1999), in which we held that 18 U.S.C. § 201(c)(2) “does not apply to the United

States or an Assistant United States Attorney functioning within the official scope

of the office.” This decision leaves no room for argument on the issue.

       Defendant’s argument regarding the government’s knowing use of perjured

testimony is frivolous. His only basis for showing that the testimony was false

and that the government knew of its falsity is that he could not have participated

in cocaine sales in Pueblo in April 1995 because he was attending school in


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Grand Junction during that period. Defendant’s school enrollment did not

foreclose his presence in Pueblo, however. In addition, witness McDonald only

approximated the time that the Pueblo sales took place, stating it was “around

April,” and explaining that even when defendant was enrolled in school, he came

home on weekends. R., Vol. 9 at 265, 297. There is no showing, therefore, that

the witnesses’ testimony was false or that the government knowingly presented

false testimony.

       The argument that the district court relied on perjured testimony to

determine the quantity of drugs distributed during the conspiracy is also

completely without merit. The court’s factual findings as to drug quantities are

reviewed for clear error.   See United States v. Wacker , 72 F.3d 1453, 1477

(10th Cir. 1996), as modified on denial of reh’g . Here, contrary to defendant’s

allegations, the district court did not simply rely on witness McDonald’s

testimony regarding his trip to Chicago for a kilogram of cocaine, but also upon

his testimony that defendant sold at least a half a kilogram of crack cocaine in

Pueblo, and upon testimony by federal agent Thomasson that his investigation and

interviews revealed that at least thirty-six kilograms of crack cocaine were

distributed through defendant’s network.     See R., Vol. 9 at 267-68 (witness

McDonald’s estimate of crack cocaine sold in Pueblo); Vol. 12 at 33-37 (agent

Thomasson’s testimony regarding thirty-six kilograms); Vol. 15 at 6-8 (district


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court’s finding beyond a reasonable doubt that defendant distributed more than

1.5 kilograms). Further, this testimony was corroborated in numerous respects, by

the length of the conspiracy, the number of individuals working for defendant

distributing crack cocaine, and the cross-corroborating witness interviews.

      Moreover, there was no error in determining the substance distributed by

defendant was crack cocaine rather than powder. With the exception of one sale

of cocaine powder, crack cocaine was the subject of all the controlled buys, the

testimony by witnesses McDonald and Washington, and the information gathered

by federal agents. The evidence was overwhelming that defendant distributed

crack cocaine, and his challenge to this finding is frivolous.

      So too, defendant’s challenges to the court’s findings that he was an

organizer or leader of the conspiracy, and that he obstructed justice, are specious.

The evidence shows that defendant was the governor of the Gangster Disciples, a

criminal organization through which he purchased and distributed cocaine, that he

financed the initial startup of the distribution network through a fraudulent

insurance claim, that he had at least ten people working for him cooking and

distributing crack cocaine, and that he received a portion of all the proceeds from

these sales. See id. ,Vol. 12 at 23-32 (Agent Thomasson); Vol. 14 at 141-42,

145-47 (Washington); see also Vol. 8 at 98-103, 105, 110-11, 114, 123-24

(Washington); Vol. 9 at 260-64, 268-70, 277, 285 (McDonald). The evidence of


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obstruction is equally as strong. Defendant was shown to have planned to kill

a police officer in retaliation for executing a search of a Colorado Springs

residence, including taking the concrete steps of obtaining a weapon and several

cameras for counter surveillance.    See id. , Vol. 14 at 52-58. He was shown to

have been involved in a second obstruction plot as well, soliciting a Pueblo

County jailmate to kill witness Washington.       See id. at 59-61, 84-85.

       There is no merit to defendant’s argument regarding the sufficiency of the

evidence to support his mail fraud conviction. A defendant claiming

insufficiency of the evidence faces “a high hurdle.”     United States v. Voss ,

82 F.3d 1521, 1524 (10th Cir. 1996). Such a claim is reviewed de novo, asking

“only whether, taking the evidence--both direct and circumstantial, together with

the reasonable inferences to be drawn therefrom--in the light most favorable to

the government, a reasonable jury could find the defendant guilty beyond a

reasonable doubt.”   Id. at 1524-25 (quotations omitted).

       Here, in addition to testimony that defendant admitted filing a fraudulent

insurance claim, there was evidence that the underlying accident was minor, that

defendant admitted he was unemployed at that time, that he misrepresented the

nature of an insurance form to the person he later alleged was his employer, and

that he submitted a false lost wages claim through the mails for more than five




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thousand dollars.    See R., Vol. 9 at 189-90, 213-19, 285; Vol. 12 at 30-31. This

is more than enough evidence to support the jury’s guilty verdict.

       Defendant’s argument that it was error to make him choose between

exercising his constitutional right to trial and receiving a two-point reduction for

acceptance of responsibility is also frivolous.      See United States v. Davis , 1 F.3d

1014, 1018 (10th Cir. 1993) (holding U.S. Sentencing Guideline § 3E1.1 did not

unconstitutionally penalize exercise of right to trial);    United States v. Trujillo ,

906 F.2d 1456, 1461 (10th Cir. 1990) (holding denial of sentence reduction under

§ 3E1.1 did not impermissibly penalize exercise of constitutional rights).

Although the commentary to § 3E1.1 states that the downward “adjustment is not

intended to apply to a defendant who puts the government to its burden of proof

at trial by denying the essential factual elements of guilt, is convicted, and only

then admits guilt and expresses remorse,” the commentary clarifies that “[i]n rare

situations a defendant may clearly demonstrate an acceptance of responsibility for

his criminal conduct even though he exercises his constitutional right to a trial.”

U.S. Sentencing Guidelines Manual § 3E1.1, commentary n.2. Thus defendant’s

exercise of his right to trial was not unconstitutionally penalized.

       Defendant also argues he should have been given the two-point reduction

based on his treatment for cocaine addiction. The district court’s determination

of acceptance of responsibility is a question of fact reviewed only for clear error.


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See United States v. Janus Indus. , 48 F.3d 1548, 1560 (10th Cir. 1995). The

guidelines caution that the sentencing judge’s determination on this issue “is

entitled to great deference.” U.S. Sentencing Guidelines Manual § 3E1.1,

commentary n.5. Here, defendant denied, and continues to deny, participating in

the large scale cocaine distribution conspiracy for which he was convicted. Even

now he refuses to admit his role in the distribution network, claiming instead that

the witnesses lied and the prosecution suppressed evidence of his innocence. Far

from admitting responsibility, defendant has taken extraordinary steps to impede

the government’s investigation and prosecution of these crimes, including two

different schemes to murder an investigating law enforcement officer and a

witness. There is no question, therefore, that the district court did not err in

refusing to grant the two-point reduction for acceptance of responsibility.

       Defendant’s argument that the government violated his constitutional rights

by placing witness Eddy in his jail living quarters is specious. Contrary to

defendant’s allegations, Agent Thomasson made it clear that although he was

unsure exactly when witness Eddy contacted the government with his information,

it was after Eddy and defendant had been placed in the same living quarters, and

that Eddy contacted the government regarding defendant’s plan to kill a witness

on his own initiative.   See R., Vol. 14 at 75-78. Eddy himself confirmed this,

explaining that he had been returned to jail for violating his probation in March


                                          -8-
1997, that there was no investigative purpose for his placement in defendant’s

living quarters, and that he initiated contact with the federal agents.       See id. at

81-86. There is no evidence that Eddy was placed in defendant’s living quarters

by the government to elicit incriminating statements from defendant.

       Similarly, the government’s request that Eddy record further details of the

plot to kill a witness did not violate defendant’s Sixth Amendment right to

counsel because Eddy was not a government agent. Both Eddy and Agent

Thomasson testified that no promises were made to Eddy to encourage his

conduct. See R., Vol. 14 at 60-61; 85-86. The later agreement to inform Eddy’s

probation officer of his cooperation if he testified truthfully had nothing to do

with his conversation with defendant while incarcerated.          See id. , Vol. 11 at 2-3.

In the absence of a quid pro quo relationship when the conversation occurred,

Eddy was not operating as a government agent, and defendant’s Sixth Amendment

rights were not implicated.     See United States v. Taylor , 800 F.2d 1012, 1016

(10th Cir. 1986) (holding in the absence of a quid pro quo relationship between

government and informant who shared cell with defendant, informant’s testimony

regarding defendant’s incriminating statements did not violate his constitutional

rights).

       Finally, defendant has not raised an arguable issue as to whether his

constitutional rights were violated by the failure to submit the issues of drug


                                              -9-
quantity and type to the jury for a determination beyond a reasonable doubt.

Because defendant did not make this argument to the district court, he must

demonstrate that it was plain error not to submit these issues to the jury.         See

United States v. Olano , 507 U.S. 725, 731-32 (1993). To meet this standard,

defendant must show that the district court committed (1) an error, (2) that was

clear or obvious, and (3) that affected his substantial rights.     See id. at 732, 734.

Such an error requires reversal only when it “seriously affects the fairness,

integrity, or public reputation of [the] judicial proceedings.”       Id. at 732

(quotations omitted).

       Based on our recent decision in      United States v. Jones , Nos. 97-1377 &

97-1463, 1999 WL 1029120, at *6-*7 (10th Cir. Nov. 12, 1999), defendant cannot

show that the district court committed an error, much less a clear or obvious error.

In Jones , we held that the Supreme Court’s decision did not require reexamination

of our prior cases holding that the penalty provisions of 21 U.S.C. § 841(b) are

not elements of the crime and thus need not be submitted to a jury.           See id. at *7.

Our position on this issue was summarized in        United States v. Silvers , 84 F.3d

1317 (10th Cir. 1996), as follows:

       Our cases make clear not only that the mandatory minima prescribed
       in 21 U.S.C. § 841(b)(1)(A) are not substantive offenses in
       themselves, but further that the quantity of the [drug] possessed by
       the defendant is not an element of the substantive offense as defined
       in 21 U.S.C. § 841(a). We have also held it is unnecessary for the
       government to allege drug quantity in the indictment, and that even

                                             -10-
       when the government does so, the quantity alleged does not dictate
       the mandatory minimum that the court is required to impose under
       21 U.S.C. § 841(b). Because drug quantity is not an element of the
       offense, the government is not bound to prove the quantity of drugs
       beyond a reasonable doubt in order to obtain a conviction under
       21 U.S.C. § 841(a); rather, the government is required only to prove
       the quantity of drugs attributable to the defendant by a preponderance
       of the evidence at sentencing in order to trigger the mandatory
       minimum sentences prescribed in 21 U.S.C. § 841(b), just as the
       government is required to prove such quantities by a preponderance
       of the evidence to establish the defendant’s base offense level under
       the Drug Quantity Table.

Id. at 1320 (quotations and citations omitted);   see also United States v. Easter ,

981 F.2d 1549, 1557 (10th Cir. 1992) (noting type of cocaine in § 841(b) is

simply penalty factor, and not an element of cocaine trafficking offense).

       Because the Supreme Court did not announce a new principle of

constitutional law, we adhered to the doctrine of stare decisis and declined to

reexamine the issue.   See Jones , 1999 WL 1029120, at *7. Defendant, therefore,

has not shown that the district court committed plain error in failing to submit the

§ 841(b) issues to the jury.

       After considering defendant’s brief and independently examining the

record, we conclude this appeal is in fact without merit. Accordingly, counsel’s

motion to withdraw is GRANTED, and defendant’s convictions and sentence are




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AFFIRMED. Defendant’s motion for release pending resolution of this appeal is

DENIED as moot. The mandate shall issue forthwith.



                                                Entered for the Court



                                                Paul J. Kelly, Jr.
                                                Circuit Judge




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