                                                                             FILED
                                                                 United States Court of Appeals
                                      PUBLISH                            Tenth Circuit

                    UNITED STATES COURT OF APPEALS                     October 29, 2012

                                                                     Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                        Clerk of Court


UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

v.                                                          No. 11-3332

DARRYN FRIERSON, a/k/a DeDa,

             Defendant-Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF KANSAS
                   (D.C. No. 6:07-CR-10142-JTM-13)


Submitted on the briefs:*

John Jenab, Jenab & McCauley LLP, Olathe, Kansas, for Defendant-Appellant.

Barry R. Grissom, United States Attorney, James A. Brown, Assistant United States
Attorney, Topeka, Kansas, for Plaintiff-Appellee.


Before HARTZ, ANDERSON, and EBEL, Circuit Judges.


HARTZ, Circuit Judge.


*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
      Defendant Darryn Frierson and 19 codefendants were charged in a

multiple-count indictment with alleged criminal activities as members of the Crips

street gang. Following a lengthy jury trial of Defendant and five codefendants, he

was convicted of eight offenses: (1) conspiracy to participate in a Racketeering

Influenced and Corrupt Organization Act (RICO) enterprise, see 18 U.S.C. § 1962(d)

(Count 2); (2) distribution of more than five grams of cocaine, see 21 U.S.C.

§ 841(a)(1) (Count 7); (3) distribution of more than five grams of crack cocaine,

see 21 U.S.C. § 841(a) (Count 8); (4) possession with intent to distribute more than

five grams of crack cocaine, see 21 U.S.C. § 841(a) (Count 9); (5) maintaining a

place of drug distribution, see 21 U.S.C. § 856(a)(1) (Count 10); (6) conspiracy to

distribute and possess with intent to distribute crack cocaine, see 21 U.S.C. § 846

(Count 11); (7) possession with intent to distribute more than five grams of crack

cocaine, see 21 U.S.C. § 841(a)(1) (Count 12); and (8) conspiracy to distribute more

than 50 grams of crack cocaine, see 21 U.S.C. § 846(a) (Count 28). The jury

deadlocked on Count 1, which charged Defendant with racketeering, see 18 U.S.C.

§ 1962(c), and acquitted him on Count 29, which charged him with conspiracy to

distribute marijuana, see 21 U.S.C. § 846.

      The district court denied Defendant’s motion for judgment of acquittal or in

the alternative for a new trial, and it sentenced him to concurrent terms of

120 months’ imprisonment on each count. Defendant raises the following

contentions on appeal: (1) Counts 11 and 28 are multiplicitous; (2) there was
                                          -2-
insufficient evidence to support his conviction for conspiracy to commit a RICO

violation; (3) the district court erred by instructing the jury that it did not need to find

that an “enterprise” actually existed in order to convict him of a conspiracy to

commit a RICO violation; and (4) juror bias denied him the right to a fair trial. The

last three contentions are identical to ones rejected by this court on appeals by his

codefendants. See United States v. Cornelius, --- F.3d ---, Nos. 10-3125, 10-3142,

2012 WL 4075877, at *2-4, 7-8, 11-13 (10th Cir. Sept. 18, 2012) and United States v.

Smith, 454 F. App’x 686, 696-97 (10th Cir. 2012) We therefore address only his

claim of multiplicity. We hold that it is meritorious.

       Defendant concedes that he did not raise the issue of multiplicity in the district

court. Thus, “we review only for plain error.” United States v. McCullough,

457 F.3d 1150, 1162 (10th Cir. 2006) (internal quotation marks omitted). “Under the

plain error standard, [a defendant] must show clear or obvious error that affected his

substantial rights and seriously affected the integrity of the judicial proceedings.”

United States v. Battle, 289 F.3d 661, 669 (10th Cir. 2002).

       “Multiplicity refers to multiple counts of an indictment which cover the same

criminal behavior.” United States v. Barrett, 496 F.3d 1079, 1095 (10th Cir. 2007)

(internal quotation marks omitted). “[M]ultiplicity is not fatal to an indictment.” Id.

(internal quotation marks omitted). Indeed, “[t]he government may submit

multiplicitous charges to the jury.” United States v. Nickl, 427 F.3d 1286, 1301

(10th Cir. 2005). But “multiplicitous sentences violate the Double Jeopardy Clause,”


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McCullough, 457 F.3d at 1162 (internal quotation marks omitted), so “if a defendant

is convicted of both charges, the district court must vacate one of the convictions,”

Nickl, 427 F.3d at 1301.

      In this case Defendant was indicted on two counts charging a conspiracy to

distribute crack cocaine. Count 11 charged:

      Beginning on a date unknown to the Grand Jury, and continuing through
      March 30, 2007, in the District of Kansas, [Defendant] and Cortez
      Grayson . . . did unlawfully, knowingly combine, conspire, confederate
      and agree together with others, both known and unknown to the Grand
      Jury, to distribute and possess with intent to distribute a mixture and
      substance containing a detectable amount of cocaine base, a controlled
      substance, in violation of Title 21, United States Code, Section
      841(a)(1)[,] and [thus a] violation of Title 21, United States Code,
      Section 846.

R. Vol. 1 at 72-73. Count 28 incorporated several earlier paragraphs of the

indictment and then charged:

      Beginning on a date unknown to the Grand Jury, and continuing through
      the 27th day of June, 2007, in the District of Kansas, and elsewhere,
      [Defendant, Grayson, and 12 other Crips members] . . . did knowingly,
      willfully and unlawfully combine, conspire, confederate and agree with
      . . . other persons whose identities are both known and unknown to the
      Grand Jury, to distribute fifty (50) grams and more of a mixture and
      substance containing a detectable amount of cocaine base, a controlled
      substance[,] [i]n violation of Title 21, United States Code, Section 846
      and 841(a)(1).

Id. at 82. Defendant contends that “[t]he only substantive difference between the two

counts is that Count 28 specifies that the overall scope of the conspiracy was ’50

grams and more.’” Aplt. Opening Br. at 15.




                                         -4-
      To establish that the two conspiracies charged in Counts 11 and 28 were

distinct – that is, that the conspiracy convictions were not multiplicitous – the jury

had to find the “existe[nce] [of] more than one agreement to perform some illegal act

or acts.” United States v. Fleming, 19 F.3d 1325, 1330 (10th Cir. 1994) (internal

quotation marks omitted). To do so, the “jurors [had to be] adequately instructed that

they could not find [Defendant] guilty of more than one count of conspiracy unless

they were convinced beyond a reasonable doubt that he entered into two separate

agreements to violate the law.” United States v. Swingler, 758 F.2d 477, 492

(10th Cir. 1985).

      In this case the jury was not so instructed, and accordingly it did not find that

Defendant entered into two separate agreements to distribute crack cocaine. The

instruction to the jurors that they “separately consider each defendant and each

Count,” R. Vol. 1 at 243, did not alert them that they needed to find that the two

conspiracies involved distinct agreements. And there was nothing in the

government’s closing argument to suggest that the conspiracy alleged in Count 11

was anything other than part of the larger conspiracy alleged in Count 28, or that

Defendant had two separate agreements to distribute illegal drugs. Thus, the two

convictions on Counts 11 and 28 are plainly multiplicitous. The government

concedes in its brief that if the counts are multiplicitous, Defendant is entitled to

relief under plain-error review.




                                           -5-
      We REMAND with instructions to the district court to vacate Defendant’s

conviction and sentence on either Count 11 or Count 28. We AFFIRM the

convictions and sentences on the remaining counts.




                                       -6-
