                                                               FILED
                                                   United States Court of Appeals
                     UNITED STATES COURT OF APPEALS        Tenth Circuit

                            FOR THE TENTH CIRCUIT                         March 3, 2014

                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

v.                                                         No. 13-7015
                                                (D.C. No. 6:11-CR-00048-JHP-13)
JIMMY RAY PETTIT, a/k/a Black,                             (E.D. Okla.)

             Defendant - Appellant.


                            ORDER AND JUDGMENT*


Before KELLY, ANDERSON, and MATHESON, Circuit Judges.



      Jimmy Ray Pettit appeals his jury conviction and 135-month sentence for

conspiracy to possess with intent to distribute 500 grams or more of a mixture or

substance containing a detectable amount of methamphetamine, in violation of

21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii), and 846. We exercise jurisdiction under

28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) and affirm.



*
      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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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
      Pettit and thirteen others were charged in a one-count conspiracy indictment.

The object of the conspiracy charged was to “knowingly and intentionally distribute

and possess with intent to distribute 500 grams or more of a mixture or substance

containing a detectable amount of methamphetamine, a Schedule II controlled

substance.” R. Vol. 1 at 12. The other defendants pleaded guilty; Pettit went to trial.

A jury convicted him of the conspiracy charge and returned a special verdict finding

the amount involved in the conspiracy to be in excess of 500 grams of a mixture

containing methamphetamine. Id. at 124.

      Viewing the trial evidence in the light most favorable to the government,

see United States v. Cornelius, 696 F.3d 1307, 1316 (10th Cir. 2012), the evidence

established that Patrick Springwater headed an organization for distributing

methamphetamine in northeastern Oklahoma. Springwater usually fronted the drugs

to his distributors who would pay him after they had sold the drugs.

      Springwater’s sole source of supply during 2010 (and, perhaps, during 2009),

and through the latter part of March 2011, was an Arkansas resident named Jose

Ramirez-Mendoza. To obtain supplies of methamphetamine from Ramirez-Mendoza,

members of Springwater’s organization, or Springwater himself, would drive to

Arkansas, usually twice a month, to pick up pound or kilogram amounts. However,

in December 2010, Springwater was stopped in Arkansas by government agents, who

seized one pound of methamphetamine from Springwater’s car. Then, toward the end

of March 2011, officers in Arkansas seized a kilogram of methamphetamine from a

                                         -2-
car driven by members of Springwater’s organization. At that point, Springwater felt

he could not immediately return to Ramirez-Mendoza for supply because

Ramirez-Mendoza had not been paid for the drugs that had been seized. Instead,

Springwater asked his distributors if they knew of any alternative source. One of

those distributors, Walter “Mick” Pettit, stated that his Uncle Jim (the defendant,

Jimmy Ray Pettit) might get a supply for him.

      In April 2011, Pettit supplied two half-pound deliveries of methamphetamine

to Springwater. Springwater paid Pettit $8,000 for the first delivery, and $7,000 for

the second. The first batch was “brown” methamphetamine, which did not sell well,

but the second batch was of better-quality “white” methamphetamine and it sold

better. Pettit and Springwater were planning a third delivery of one pound of

methamphetamine when Springwater was arrested. Springwater testified that he had

intended to return to Ramirez-Mendoza as his supplier, although he did not explain

what had changed relative to his unpaid debt to Ramirez-Mendoza that would permit

him to do so.

      II.       CONSPIRACY CONVICTION
      Pettit challenges the sufficiency of the evidence to sustain his conviction for

conspiracy. “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. Foy, 641 F.3d 455,

465 (10th Cir. 2011). Where, as here, a defendant is charged with a certain quantity

                                          -3-
of drugs, “that quantity of drugs becomes an element of the charged offense if the

quantity triggers a sentence beyond the maximum allowed for violation of the base

§ 841(a)(1) offense.” United States v. Montgomery, 468 F.3d 715, 719 (10th Cir.

2006). Pettit asserts that the evidence of interdependence and drug quantity was

insufficient to sustain his conviction.

      “We review the record de novo in sufficiency-of-the-evidence challenges to

criminal jury verdicts, asking 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.” Cornelius, 696 F.3d at 1316 (internal quotation marks omitted).

We consider “both direct and circumstantial evidence, and all reasonable inferences

therefrom, in the light most favorable to the government.” United States v.

Acosta-Gallardo, 656 F.3d 1109, 1123 (10th Cir. 2011) (internal quotation marks

omitted). “Under this standard, we will not reverse a conviction unless no rational

trier of fact could have reached the disputed verdict.” United States v.

Pulido-Jacobo, 377 F.3d 1124, 1129 (10th Cir. 2004) (brackets, ellipsis, and internal

quotation marks omitted). This court will not weigh the evidence or disturb the

jury’s credibility determinations. Acosta-Gallardo, 656 F.3d at 1123. “Because

secrecy and concealment are essential features of successful conspiracy, direct

evidence of conspiracy is often hard to come by. Therefore, conspiracy convictions

may be based on circumstantial evidence, and the jury may infer conspiracy from the

defendants’ conduct and other circumstantial evidence indicating coordination and



                                          -4-
concert of action.” United States v. Dazey, 403 F.3d 1147, 1159 (10th Cir. 2005)

(citation, brackets, and internal quotation marks omitted).

             A.     Interdependence
      “A defendant’s activities are interdependent if they facilitated the endeavors of

other alleged conspirators or facilitated the venture as a whole.” United States v. Ivy,

83 F.3d 1266, 1286 (10th Cir. 1996) (internal quotation marks omitted). The

government must submit “proof that the conspirators intended to act together for

their shared mutual benefit within the scope of the conspiracy charged.” United

States v. Hamilton, 587 F.3d 1199, 1208 (10th Cir. 2009) (internal quotation marks

omitted).

      Pettit argues that interdependence was not proved because the government

failed to show a common goal between him and his coconspirators. He contends

(1) the evidence demonstrated that he made only $20 on the sales of drugs worth

$15,000, so he was not motivated by profit; (2) the evidence did not show that he was

motivated to gain access to drugs or to accept drugs as payment; (3) the evidence did

not demonstrate that the conspiracy needed or depended on his participation to

survive; and (4) he was involved for only two sales, while the conspiracy spanned

two years, and his role was relatively minor given that he provided only a pound of

methamphetamine to an organization that generally sold two pounds a month.

      Even if Pettit had been a “financially selfless conspirator,” he would not be

“categorically exclude[d] from conspiracy liability.” Id. at 1210 n.6. But the

evidence demonstrated that Pettit did profit from the sales. He admits to receipt of

                                          -5-
$20, and Springwater testified that he paid Pettit with an “8-ball,” or 3.5 grams of

methamphetamine, worth $300.

      Moreover, a reasonable jury could have concluded that Pettit was motivated, at

least in part, to help his nephew, who personally introduced Springwater to Pettit and

who was present during the drug deliveries. See id. at 1210 & n.6 (rejecting

defendant’s claim that he did not personally profit financially from furthering his

brother’s illegal drug organization; stating assistance arising from “a familial sense

of loyalty and obligation,” did not immunize defendant from prosecution as a drug

conspirator).

      In addition, the evidence supported a jury finding that the conspiracy depended

on Pettit’s supply of drugs. It is undisputed that Springwater purchased drugs from

Pettit because he could not obtain a supply from Ramirez-Mendoza. “[T]his

evidence alone shows that [Pettit] facilitated the actions of the venture as a whole . . .

[and he] was plainly integral to the success of the operation.” United States v.

Hutchinson, 573 F.3d 1011, 1036 (10th Cir. 2009); see also Ivy, 83 F.3d at 1286-87

(holding interdependence was shown by fact that one coconspirator received the

majority of his supply from another coconspirator and held a prominent position in

the supplier’s organization).

      Pettit cites no authority to support his argument that his relatively short

involvement with the conspiracy precluded a finding of interdependence. We also

reject his claim that his relationship with Springwater was merely that of a buyer and

seller, not of coconspirators. He relies on United States v. McIntyre, 836 F.2d 467,

                                           -6-
471 (10th Cir. 1987), for the proposition that “proof of the existence of a buyer-seller

relationship, without more, is inadequate to tie the buyer to a larger conspiracy.” But

the buyer-seller rule does not apply where “each co-conspirator’s activities

constituted essential and integral steps toward the realization of a common, illicit

goal.” United States v. Fox, 902 F.2d 1508, 1514 (10th Cir. 1990) (internal quotation

marks omitted). Here, the evidence was sufficient for a reasonable jury to find that

Pettit provided large quantities of methamphetamine to be distributed by

Springwater’s organization. Thus, the evidence supports a conclusion that Pettit “did

knowingly join and participate in the [methamphetamine] conspiracy.” Id. at 1516.

We therefore conclude that the evidence was sufficient to prove interdependence.

             B.     Drug Quantity
      We turn to Pettit’s claim that the evidence was insufficient to prove that he

was involved with more than 500 grams of a substance containing methamphetamine.

He contends that only the two drug sales to Springwater can be counted, conceding

that the two completed drug sales to Springwater involved 426.5 grams. It is

undisputed that including the additional pound of methamphetamine contemplated in

the third sale put the total attributable to Pettit well over the 500 grams for which he

was convicted. He argues that the planned third sale for an additional pound of

methamphetamine could not be included in the amount of drugs attributable to him

because it was not an order, Springwater did not intend to buy from him again, there

was no agreement to buy more, and Springwater stated that Pettit would not be

involved further in the conspiracy.

                                          -7-
      “Conspiracy is an inchoate offense, the essence of which is an agreement to

commit an unlawful act.” United States v. Shabani, 513 U.S. 10, 16 (1994) (internal

quotation marks omitted). It is well-established that the inchoate crime of conspiracy

punishes the agreement to commit an unlawful act, rather than the completed

criminal act. See United States v. Jimenez Recio, 537 U.S. 270, 274 (2003).

Therefore, the crime of conspiracy “may exist and be punished whether or not the

substantive crime ensues.” Id. (internal quotation marks omitted). And even

“[w]here police have frustrated a conspiracy’s specific objective but conspirators . . .

have neither abandoned the conspiracy nor withdrawn, the[] special conspiracy-

related dangers remain, [as does] the essence of the conspiracy—the agreement to

commit the crime.” Id. at 275. Pettit was convicted of violating 21 U.S.C. § 846,

which provides that any person who “conspires to commit any offense defined in [the

subchapter addressing controlled substances] shall be subject to the same penalties as

those prescribed for the offense” that was the object of the conspiracy.

      Springwater testified that he probably would have purchased the additional

pound of methamphetamine from Pettit “if the quality was good.” R. Vol. 2 at

180-81. He further stated that if he had not been arrested, he would have continued

to sell drugs. Id. at 181. Pettit points to no evidence that he would have been

unwilling or unable to provide the additional pound. And although he argues on

appeal that Springwater would have gone back to his previous supplier instead of

buying the additional pound from him, Pettit offers no evidence that this was a



                                          -8-
realistic alternative for Springwater, given that the debt to the supplier preventing his

return had apparently not been paid.

      “The fact that [Pettit] previously dealt drugs with [Springwater] helps establish

the basis of the relationship between them and his intent to do the same.” United

States v. Brooks, 736 F.3d 921, 940 (10th Cir. 2013) (discussing evidence of

defendant’s prior bad acts), petition for cert. filed (U.S. Jan. 27, 2014) (No. 13-8505).

Based on the evidence adduced at trial, a reasonable jury could have concluded that

Pettit was ready to supply the additional pound and that Springwater could not have

obtained a supply of drugs from his previous supplier. This evidence, added to

Springwater’s testimony concerning his intention to purchase the additional pound of

methamphetamine from Pettit, was sufficient to permit a reasonable jury to find

beyond a reasonable doubt that Pettit and Springwater had agreed to further violate

the law by distributing an additional one pound of methamphetamine. As a result,

the drug-quantity element of the offense of conviction was established.

      III.   EVIDENTIARY HARPOON
      Next, Pettit alleges prosecutorial misconduct in the form of an “evidentiary

harpoon.” This is “a metaphorical term used to describe an attempt by a government

witness to deliberately offer inadmissible testimony for the purpose of prejudicing

the defendant.” United States v. Cavely, 318 F.3d 987, 996 n.2 (10th Cir. 2003). He

asserts that the prosecutor improperly elicited from Matthew Niles, a special agent

for the Drug Enforcement Agency, the fact that Pettit was at the probation and parole

office when he was administered the Miranda warnings. Pettit’s counsel

                                          -9-
immediately objected. The district court then took a recess and addressed the

objection outside the presence of the jury. Defense counsel explained that he

objected to informing the jury that Pettit was on probation at the time he was

interviewed for this case. Counsel also moved for a mistrial for violating Pettit’s

right not to have his criminal history revealed to the jury. The prosecutor stated that

Agent Niles’s answer was not what he expected. After reviewing a transcript of the

challenged testimony, the court observed that the testimony did not register with the

jury and that to give an admonition would compound the problem. Hence, the court

overruled the objection.

       We evaluate a claim of prosecutorial misconduct using a two-step process:

(1) whether the conduct was improper, and (2) if so, whether it warrants reversal of

the conviction. Ivy, 83 F.3d at 1288. “[A]n allegation of prosecutorial misconduct

for which there was a contemporaneous objection presents a mixed question of fact

and law that we review de novo.” United States v. Caballero, 277 F.3d 1235, 1242

(10th Cir. 2002). Prosecutorial misconduct “is harmless unless there is reason to

believe that it influenced the jury’s verdict, . . . consider[ing] the trial as a whole.”

Ivy, 83 F.3d at 1288 (internal quotation marks omitted).

       In this case, Agent Niles’s statement about where the interview took place did

not unambiguously convey the information that Pettit was on probation.

Nevertheless, assuming the comment was improper, we conclude that it was harmless

in the context of the trial as a whole. Any misconduct was “merely singular and

isolated,” rather than “flagrant enough to influence the jury to convict on grounds

                                           - 10 -
other than the evidence presented.” Id. (internal quotation marks omitted). For the

same reason, we conclude that the district court did not abuse its discretion in

denying the request for a mistrial. See United States v. Tolliver, 730 F.3d 1216, 1226

(10th Cir. 2013) (reviewing denial of mistrial for abuse of discretion). As discussed

above, there was ample evidence to support Pettit’s conviction and this single,

ambiguous statement did not undermine the jury’s verdict.

      IV.    SENTENCE
      The sentencing range for Pettit’s conviction was dependent, among other

factors, on the quantity of drugs for which he was held responsible. See 21 U.S.C.

§ 841(b)(1)(A)(viii); USSG § 2D1.1 (2011). The statutory minimum and maximum

sentences were 10 years to life in prison. Pettit’s sentence under the United States

Sentencing Guidelines, based on a drug quantity of at least 500 grams but less than

1.5 kilograms of a substance containing methamphetamine, see USSG § 2D1.1(a)(5)

and (c)(4); id. note (A) (base offense level of 32), considering his criminal history

category of II, was 135 to 168 months, see R. Vol. 3, at 11, 17. Pettit was sentenced

to 135 months.

      Pettit argues that the district court erred in sentencing him based on the

amount of methamphetamine trafficked by his coconspirators without making

particularized findings to support the attribution of his coconspirators’ actions to him

as relevant conduct. The district court adopted the jury’s finding that Pettit had

conspired to distribute in excess of 500 grams of a substance containing

methamphetamine and sentenced him based on that amount. No relevant conduct by

                                         - 11 -
coconspirators was included to increase the drug amount. And contrary to Pettit’s

claim, there is no indication that he was held responsible for drug amounts trafficked

by the conspiracy before he joined. Therefore, the district court was not required to

make particularized findings of the coconspirators’ relevant conduct. Cf. United

States v. Figueroa-Labrada, 720 F.3d 1258, 1264 (10th Cir. 2013) (“A sentencing

court must make particularized findings to support the attribution of a coconspirator’s

actions to the defendant as relevant conduct, whether or not the defendant asks it to

do so or disputes the attribution.”).

       V.     CONCLUSION

       Pettit’s conviction and sentence are affirmed.


                                                  Entered for the Court


                                                  Stephen H. Anderson
                                                  Circuit Judge




                                         - 12 -
