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

                                  TENTH CIRCUIT                              April 12, 2013
                         ___________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
v.                                                             No. 11-3294
STEPHEN BLACKBURN,                                 (D.C. No. 2:09-CR-20133-JWL-12)
                                                                (D. Kan.)
          Defendant-Appellant.
                      ___________________________________
                              ORDER AND JUDGMENT*
                         ____________________________________

Before LUCERO, BALDOCK, and TYMKOVICH, Circuit Judges.
                ____________________________________

          A jury convicted Defendant Stephen Blackburn of one count of conspiracy to

possess with intent to distribute more than 1,000 kilograms of marijuana, in violation of

21 U.S.C. § 841(a)(1) and (b)(1)(A)(vii). Defendant now appeals, challenging venue and

the sufficiency of the evidence. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we

affirm.

                                              I.

          The Government presented the following facts at trial. The conspiracy in this case

had its roots in 1997 when Curtis Pitter (also known as Michael Francois) got in contact

with his boyhood friend Devon Thomas. Pitter would arrange for a source in Los


          *
         This order and judgment is not binding precedent except under the doctrines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.
Angeles, California, to ship five to ten pounds of marijuana to Thomas in Florida. This

arrangement was interrupted in 1998 and again in 2000 by Thomas and then Pitter

serving time in jail and Thomas twice being deported to Jamaica. Pitter and Thomas

resumed marijuana trafficking in earnest in 2004, this time with Thomas going to

Phoenix, Arizona, to obtain marijuana from Mexican sources. Thomas would pay the

sources with cash sent from Pitter and delivered by either Tamary Brown or Gladstone

McDowell. Pitter would then wrap the marijuana in plastic wrap, put grease over the

packages, box them (usually with an outer and inner box sealed by spray foam or glue),

and ship the boxes to Kansas City, Missouri, by UPS. The shipments started out at thirty

to forty pounds per week and increased to around 300 pounds per week. Dwight Rhone,

Pitter’s cousin, also helped ship the marijuana. The conspirators split the profits based on

set percentages, with Pitter receiving 40%, Gladstone McDowell 30%, Thomas 20%, and

Rhone 10%.

       In 2006, police arrested Devon Thomas in Phoenix while he was dropping off

marijuana packages at a UPS store. After being released on bail, he fled to Florida,

where he continued to receive money from Pitter for his part of the marijuana profits.

Thomas testified that five men “work[ed] for us” in Phoenix packaging marijuana.

Record on Appeal (“ROA”), vol. VII at 303.           These men were Rhone, Theodore

McDowell (Gladstone McDowell’s son), Samora McIntosh, Sheldon McIntosh, and

Ibrahima Kane. They became known at trial as the “Arizona Five.” Thomas testified

that Arizona Five had money invested in the marijuana business and each would receive a

certain percentage of the profits based on his contribution. He also testified that most of

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the people working in Phoenix were connected through Pitter, “but, I mean, it was just

one organization. One come [sic] and goes. I wasn’t directly involved with most of these

people, but there was a part of it through [Pitter].” ROA, vol. VII at 306–07. The

conspirators’ usual pattern of travel was to drive or take a bus from Kansas City to

Phoenix, and then to fly on one-way tickets back to Kansas City. They would also often

fly through Las Vegas, Nevada, in order to attract less suspicion if they were discovered

with large amounts of cash.

      In May 2007, the organization suffered a setback when Pitter and the Arizona Five

were arrested at a house in Avondale, Arizona, a suburb of Phoenix. The police seized

630 pounds of marijuana and $223,000 in cash from the house. Defendant Blackburn

immediately flew to Arizona, where he attempted to get the men released on bail. Only

Pitter was released, and after taking a break for a month or two, the organization resumed

trafficking marijuana.   Pitter sent Gladstone McDowell to Arizona to purchase and

package marijuana. But sometime in the summer of 2007, Pitter asked Thomas to return

to Arizona because Gladstone was not negotiating for a proper quality of marijuana.

Thomas said the organization was shipping between 200 and 300 pounds of marijuana

twice a month during the second half of 2007.

      Thomas testified that Pitter asked him to send some marijuana to a person in

Tennessee named Yosiphat. Thomas believed this person was Defendant Blackburn, but

Tamary Brown identified “Yosiphat” as Denaud Egana. Egana himself said his name

was “Yehosaphat.” Egana testified that Defendant recruited him in 2007 to do legal

research regarding the Arizona Five because Egana was a paralegal. Defendant and

                                          -3-
Egana received powers of attorney in the names of each of the Arizona Five. Defendant

used these powers of attorney to inform Arizona law enforcement officials that

approximately $70,000 was missing from the Avondale house in addition to the $223,000

seized by police.

       Egana also testified that in early 2007 Defendant had offered Egana some

marijuana for resale. Defendant told Egana that he received marijuana packages from

Pitter and Pitter’s “congregation” and that Defendant “survived” through the distribution

of marijuana. Egana declined the offer to distribute marijuana because he wanted to stay

out of trouble. In 2008, Egana helped Defendant draft a motion in defense of a young

man in Defendant’s congregation who was facing marijuana-related charges in

Tennessee. Defendant told Egana he had lost $10,000 of his own money in relation to the

case. Defendant also told Egana that if Pitter had shipped the marijuana to him, the

police would not have intercepted it in Tennessee.

       Defendant’s IRS records showed that he did not file federal income tax returns in

2007, even though his bank account showed cash deposits of $42,698. The account

records also showed multiple withdrawals for rental vehicles and airline tickets. Egana

testified that Pitter had purchased a car for Defendant for $40,000.

       In November 2007, a local narcotics enforcement officer stopped a SUV bearing

Missouri license plates in Goodwell, Oklahoma, after he observed it driving westbound

on the shoulder of Highway 54 without signaling. While the car was stopped, another

officer arrived with a drug dog, which alerted to the vehicle. A search yielded $139,980

in cash. Gladstone McDowell was a backseat passenger in the vehicle. He claimed the

                                           -4-
money, signing a receipt for it and writing “The money is mine alone.” An assistant

district attorney from Guymon, Oklahoma, testified that he filed a forfeiture action

against the currency. He mentioned that Guymon was in the Oklahoma panhandle. He

testified that five days after the seizure, Defendant came to the district attorney’s office in

Guymon and said the “moneys were church moneys” and asked that the money be given

back to him. ROA, vol. VII at 1152. The district attorney’s office declined.

       In June 2009, a UPS store owner in Mesa, Arizona, notified the DEA that a person

matching the description of Curtis Pitter had dropped off sixteen boxes. The boxes were

addressed to two addresses in Missouri, one of which was associated with a former

housemate of Pitter’s. The DEA obtained a search warrant for the eight boxes being sent

to that address, and tracked the boxes to a UPS distribution facility in Kansas City,

Kansas. A search of those boxes yielded about 200 pounds of marijuana.

       The marijuana trafficking organization finally unraveled in December 2009, when

agents arrested Curtis Pitter and Gladstone McDowell and searched both their residences

in Kansas City, Missouri. At Gladstone McDowell’s residence, the agents seized records

documenting marijuana transactions totaling 4,545.5 pounds. At Pitter’s residence on

Oldham Road, authorities found 67 pounds of marijuana, $98,256 in cash, and an

envelope containing power of attorney documents for the five defendants held in

Arizona. The Oldham Road residence had been purchased under Gladstone McDowell’s

name in 2005, although Pitter provided the money for the mortgage payments. Closing

for the house took place at a title company’s office in Leawood, Kansas. The down

payment was made up of cashier’s checks, several of which were obtained in Jamaica.

                                             -5-
      A grand jury indicted Defendant and nineteen other persons on drug trafficking

and money laundering charges. The Superseding Indictment charged Defendant with

conspiring to distribute 1000 kilograms or more of marijuana in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(A)(vii).     A jury convicted Defendant, and the district court

sentenced him to 151 months’ imprisonment. Defendant filed no fewer than nine post-

trial motions pro se, raising (among other things) the issues he now urges on appeal with

benefit of counsel—insufficient evidence and improper venue.

                                           II.

      “We review sufficiency-of-the-evidence challenges de novo, considering 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 and brackets omitted). We will reverse

on sufficiency of the evidence grounds only if “no rational jury could have found each

element of the crime beyond a reasonable doubt.” United States v. Parada, 577 F.3d

1275, 1283 (10th Cir. 2009). To prove a defendant was part of a drug-trafficking

conspiracy under 18 U.S.C. § 841, the Government must show: “(1) two or more persons

agreed to violate the law; (2) the defendant knew the essential objectives of the

conspiracy; (3) the defendant knowingly and voluntarily participated in the conspiracy;

and (4) the alleged coconspirators were interdependent.” United States v. Yehling, 456

F.3d 1236, 1240 (10th Cir. 2006).

      Here, the jury heard the following evidence linking Defendant to the marijuana

trafficking conspiracy. In early 2007, he offered to Egana some marijuana to sell. He

                                          -6-
told Egana he received marijuana from Pitter’s “congregation” and that he survived by

distributing marijuana. Defendant told Egana he had lost $10,000 of his own money

when a member of Defendant’s “congregation” was found in possession of marijuana,

and he told Egana that the marijuana would not have been caught if Pitter had shipped it

to Defendant. Defendant flew from Tennessee to Phoenix the day after the Arizona Five

were arrested and tried to help them with their legal proceedings. He tried to claim the

$139,980 in cash seized from Gladstone McDowell in the Oklahoma panhandle, claiming

it was “church money.” And, finally, Pitter purchased a $40,000 car for Defendant.

From this evidence, a rational jury could easily conclude Defendant was a member of the

conspiracy.

      Defendant makes several feeble attempts to undermine this evidence. First, he

says he “made no claim to the money” seized in Oklahoma. Appellant’s Br. at 21.

Likewise, he asserts in the fact section of his brief, “Further evidence presented at trial

confirmed that Stephen Blackburn never made a claim for the money seized in

Oklahoma.”    Id. at 7.   This flatly misstates the evidence.     The part of the record

Defendant cites only establishes that he didn’t file any “legal documents stating that the

money was his.” ROA, vol. VII at 1873.           But the assistant district attorney from

Guymon, Oklahoma, testified, “Later Mr. Blackburn then came to our office. He said

that those moneys were church moneys, and he asked if we would give those church

moneys back to him.” Id. at 1152. So Defendant did, in fact, make a claim to the money.

      Next, Defendant claims Devon Thomas was a wholly unreliable witness based on

his mistaken belief that Defendant used the name Yosiphat or Yehosaphat, even though

                                           -7-
two other witnesses identified Egana as Yosiphat. Defendant also says Thomas initially

told federal agents that he shipped eight pounds of marijuana to Yosiphat, but then

testified at trial that he sent Yosiphat 300 to 400 pounds.              But these attempts to

undermine Thomas’s credibility are futile on appeal.            Weighing credibility is a job

delegated to the jury, not to us. United States v. Bowen, 527 F.3d 1065, 1076 (10th Cir.

2008).

         Finally, Defendant tries to cast doubt on Egana’s testimony that Defendant offered

to front him marijuana. Defendant says, in a footnote, that Egana’s testimony was

“uncorroborated, came from a person admitted to have a history of convictions for truth

or veracity crimes and [who] was hoping for consideration for a reduction of his

sentence.” Apellant’s Br. at 22 n.5. He adds that even if this testimony were true, it

would be evidence of “a whole separate conspiracy” from the conspiracy charged in the

indictment. Id. In our circuit, “[a]rguments raised in a perfunctory manner, such as in a

footnote, are waived.” United States v. Hardman, 297 F.3d 1116, 1131 (10th Cir. 2002).

Yet even if we treated these arguments as properly raised, the first argument goes only to

Egana’s credibility, which is unreviewable on appeal. Bowen, 527 F.3d at 1076. The

second argument would be subject to plain error review because Defendant did not raise

it in any of his post-trial motions. See Fed. R. Crim. P. 52(b). And the evidence

connecting Defendant to the larger conspiracy demonstrates there was no error, much less

a plain one. So we cannot overturn the jury’s verdict.

                                                III.

         Article III of the Constitution requires the trial of all crimes to be held “in the State

                                               -8-
where the said Crimes shall have been committed.” U.S. Const. art. III, § 2, cl. 3. See

also U.S. Const. amend. VI. Echoing the constitutional command, Federal Rule of

Criminal Procedure 18 directs that venue is proper “in a district where the offense was

committed.” When the crime charged is conspiracy, “venue as to prosecution of all

members of the conspiracy lies either in the jurisdiction in which the conspiratorial

agreement was formed or in any jurisdiction in which an overt act in furtherance of the

conspiracy was committed by any of the conspirators.” United States v. Foy, 641 F.3d

455, 466 (10th Cir. 2011) (quoting United States v. Rinke, 778 F.2d 581, 584 (10th Cir.

1985)). The Government need only prove venue by a preponderance of the evidence.

Acosta-Gallardo, 656 F.3d at 1118.

       In this case, the properly-instructed jury found venue to lie in the United States

District Court for the District of Kansas.       Defendant has not challenged the jury

instructions, but only the adequacy of the evidence supporting venue. In reviewing a

jury’s decision that venue lies in a particular district, we “view the evidence in the light

most favorable to the government and make all reasonable inferences and credibility

choices in favor of the finder of fact.” Id. (brackets omitted) (quoting United States v.

Kelly, 535 F.3d 1229, 1232 (10th Cir. 2008)).

       The Government proposes several bases on which the jury could have rested its

venue finding. First, the Government argues the jury reasonably could have found venue

to lie in Kansas based on the seizure of eight boxes of marijuana in the UPS facility in




                                           -9-
Kansas City, Kansas.1 But although the conspirators certainly shipped the boxes through

Kansas, the mere presence of the boxes in Kansas is hardly an “overt act.” Pitter

committed an overt act in furtherance of the conspiracy when he shipped the packages

from a UPS store in Mesa, Arizona. But UPS’s transportation of the boxes through

Kansas, even if foreseeable, was not an act committed by any of the conspirators. If this

were a sufficient basis for venue, the Government could have brought the prosecution in

any judicial district through which the conspiracy’s marijuana shipments passed. For this

specific shipment, those districts might have included the District of New Mexico, the

Western and Northern Districts of Oklahoma, and the Northern District of Texas. The

boxes may have even traveled through a UPS hub in another district, such as the District

of Colorado. The record also shows the conspirators shipped marijuana from Arizona to

Florida and Tennessee. So under the Government’s theory, venue might lie in any

number of judicial districts in the southern United States simply because UPS shipments

traveled through those districts. The Government has not cited, nor have we found, any

authority for stretching the rules of venue so far.

       The Government also argues the closing of the Oldham Road residence sale at a

title company in Kansas is sufficient to establish venue. The Oldham Road purchase was

relevant to the money laundering charges, but Defendant was only convicted for

conspiracy to possess marijuana with intent to distribute. Nothing in the record suggests


       1
         Defendant suggests UPS actually found these boxes in Missouri, but then
transported them to a secured facility in Kansas. This supposition is directly contradicted
by the record, which shows the boxes were “seized at the UPS hub in Kansas City,
Kansas.” ROA, vol. VII at 1115.
                                            - 10 -
that the purchase of the Oldham Road residence was an act in furtherance of the

marijuana-trafficking conspiracy.

        Ultimately, we need not decide whether these first two theories are sufficient to

support the jury’s finding of venue. The jury heard other evidence from which it could

conclude by a preponderance of the evidence that the conspirators committed acts in

furtherance of the conspiracy in the District of Kansas. Tamary Brown testified that she,

Gladstone McDowell, and Marlon Forrester would drive or take a bus from Kansas City,

Missouri, to Arizona with the money to buy more marijuana. Furthermore, the jury heard

that police stopped a vehicle carrying Gladstone McDowell and nearly $140,000 in cash

on Highway 54 in the Oklahoma panhandle. The vehicle bore Missouri license plates

and was westbound. Jurors could easily conclude based on these pieces of evidence that

multiple members of the conspiracy drove through Kansas in order to return cash to

Arizona. Driving a vehicle and carrying cash are both overt acts. See United States v.

Record, 873 F.2d 1363, 1370 (10th Cir. 1989) (approving jury instruction that said an

overt act for venue purposes “may be as innocent as the act of a man walking across the

street, or driving an automobile, or using a telephone”). See also United States v. Bailon-

Santana, 429 F.3d 1258, 1262 (9th Cir. 2005) (driving a car); United States v. Fernandez,

559 F.3d 303, 327 (5th Cir. 2009) (loading cash into a truck). So the jury reasonably

could infer the conspirators committed overt acts in furtherance of the conspiracy in the

District of Kansas. Consequently, we cannot disturb its finding that venue was proper in

that district.



                                          - 11 -
AFFIRMED.

            Entered for the Court,



            Bobby R. Baldock
            United States Circuit Judge




            - 12 -
