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United States v. Ocean

United States Court of Appeals, First Circuit

September 11, 2018



          Merritt Schnipper, with whom Schnipper Hennessy was on brief, for appellant Ocean.

          Seth Kretzer, with whom Law Offices of Seth Kretzer was on brief for appellant Mitchell.

          Renee M. Bunker, Assistant United States Attorney, with whom Halsey B. Frank, United States Attorney, was on brief, for appellee.

          Before Howard, Chief Judge, Kayatta, Circuit Judge, and Torresen, [*] Chief U.S. District Judge.


         Following a joint jury trial, Akeen Ocean and Jermaine Mitchell were convicted of a conspiracy to distribute and possess with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a)(1). The district court sentenced Ocean to 120 months imprisonment with three years of supervised release and Mitchell to 260 months imprisonment with five years of supervised release. On appeal, Ocean claims that: (1) there was insufficient evidence to convict him of the charged conspiracy; (2) the admission of recorded jailhouse conversations he had with a girlfriend who cooperated with the Government violated his Sixth Amendment right to counsel; and (3) the sentencing judge erred in calculating his drug quantity. Mitchell argues that allowing two law enforcement witnesses to testify that a particular substance was crack cocaine was both evidentiary error and a violation of his Sixth Amendment right to confrontation. Finding no merit in any of the appellants' claims of error, we affirm both convictions and Ocean's sentence.

         I. Akeen Ocean

         A. Sufficiency of the Evidence

         Because Ocean raised his sufficiency objection in a Rule 29 motion, the standard of review is de novo. United States v. Ramírez-Rivera, 800 F.3d 1, 16 (1st Cir. 2015). In considering the totality of the direct and circumstantial evidence, we draw all inferences in favor of the government and consistent with the verdict, and "we will reverse only if the verdict is irrational." Id. (quoting United States v. Brandao, 539 F.3d 44, 50 (1st Cir. 2008)). Here, we recount the facts against Ocean on the conspiracy count in the light most favorable to the verdict. United States v. Rodriguez, 162 F.3d 135, 140 (1st Cir. 1998). We address the facts pertinent to other claims later in the opinion.

         Count One of the Indictment alleged that between January 1, 2010 and August 30, 2013 in the District of Maine, Defendants Mitchell and Ocean, along with Jeffrey Benton, Christian Turner, Willie Garvin, Torrence Benton, Jeremy Ingersoll-Meserve, Jacqueline Madore, David Chaisson, Burke Lamar, and Wendell White, conspired to distribute and possess with the intent to distribute 280 grams or more of cocaine base.

         1. Factual Background

         The evidence at trial established that Defendant Mitchell oversaw the distribution of crack cocaine that was being transported from New Haven, Connecticut to Bangor, Maine. Mitchell was assisted in the Bangor area by Christian Turner and a man named Rodrigo.

         The distribution of the crack in and around Bangor depended on a network of local addicts, including Defendant Ocean, his girlfriend Christie, and others. For every four or five grams of crack sold, each addict would earn a gram of crack for personal use. The going rate to the addicts was about $100 per gram of crack. By selling the crack to their friends and acquaintances, the addicts provided the customer base for the operation and were able to support their own habits.

         Mitchell operated out of Christie's apartment on Court Street in Bangor for two or three months in 2011. Mitchell then installed Rodrigo at the Court Street apartment so that Mitchell could tend to business elsewhere. Rodrigo assumed the role of doling out the crack to the addict-dealers and collecting the money from them. Mitchell came by frequently to collect the proceeds. During this period, Ocean was staying several nights a week at Christie's place.

         Ocean was not pleased when Rodrigo moved into Christie's apartment because he thought it would attract the attention of law enforcement. Despite his displeasure with the arrangement, Ocean continued to purchase crack from Rodrigo. Rodrigo testified that Ocean was "high all the time, but he . . . also brought me a lot of . . . clientele. He helped me out a lot." Because Ocean did not like people coming to the residence, he conducted his sales away from the Court Street apartment. By Christie's estimate, during the five or six months that Rodrigo was at her residence, Ocean purchased about 100 grams of crack from him. Three witnesses testified that they purchased crack from Ocean, with one witness estimating that he purchased approximately 40-50 grams of crack from Ocean between 2010 and 2013.

         Christie, who was not initially happy about Rodrigo living at her apartment, grew even more tired of him after he began to short her and deal directly to her customers. Rodrigo testified that at some point Christie stopped coming home because she owed him and other distributors money. Eventually, Rodrigo moved out of the apartment and set up shop at the homes of other conspirators. Ocean continued to help Rodrigo after he moved out. Rodrigo testified that Ocean also bought crack directly from Turner from time to time.[1]

         The New Haven police conducted a taped interview with Ocean in September of 2014. The recording was played at trial, and it corroborated much of the witnesses' testimony. In that interview, Ocean admitted that he had dealt with Rodrigo and Turner in Bangor for about eighteen months in 2010 and 2011. He told the detectives that his girlfriend introduced him to Rodrigo who was staying with her. He explained that he was a "middleman" "running to support my habit." He stated that the amounts he would buy from Rodrigo would vary anywhere from two to twenty grams in a day. Although he was not as familiar with Turner, Ocean acknowledged that he had met him and that he could call Turner if Rodrigo was out of product. Ocean described a falling-out with Rodrigo after Rodrigo stole from him. He admitted that he knew others who were involved from Bangor, including Madore and a woman named Fern. He claimed that he was not "in the loop" with Rodrigo and Turner, and he denied ever traveling to Connecticut to reup with them. He summed up his involvement like this: "I bought drugs from them and kept it moving."

         Finally, in recorded jailhouse conversations also admitted at trial, Ocean, apparently referring to his interview with the New Haven detectives, told Christie:

I said if that's what you call it, yeah I was a middleman. . . . I say yeah, I might have got some money out, I might have got a couple of dollars out of it, I might have got some crack, that's where I fucked up.

         2. Analysis

         In framing his sufficiency challenge, Ocean concedes that the evidence established a conspiracy to distribute cocaine base from New Haven to Bangor and that he participated in a branch of this venture. He claims that the government alleged a hub and spoke conspiracy around Mitchell and Benton and argues that because he had little interaction with either of them, there was insufficient evidence to support his conspiracy conviction. He argues that the evidence was insufficient to show that he joined the conspiracy or shared the conspirators' goals because he sold drugs only to feed his addiction, did not provide the type of support services that other coconspirators did, and was indifferent to the goals of the conspiracy and hostile to Rodrigo.

         Although he never uses the term "variance," Ocean's opening brief reads like a variance argument, i.e., that Ocean's activities were not part of the broader charged conspiracy but some other conspiracy. Ocean follows the typical analysis for a variance claim, addressing the factors of commonality, overlap, and interdependence. See United States v. Ortiz-Islas, 829 F.3d 19, 24 (1st Cir. 2016) (in determining whether evidence is sufficient to show a single conspiracy, rather than several, courts look to "(1) the existence of a common goal, (2) overlap among the activities' participants, and (3) interdependence among the participants" (quoting United States v. Paz-Alvarez, 799 F.3d 12, 30 (1st Cir. 2015))).

         Not surprisingly, the Government responds by arguing that there was no variance between the crime charged and the one proved at trial. The Government points out that the Indictment did not charge a broader "New Haven-to-Bangor" conspiracy but merely charged a conspiracy to distribute cocaine base in the District of Maine. Further, the Government counters, there was no allegation that this was a hub conspiracy centered on Mitchell and Benton, and in fact the charged conspiracy was either a hub with Rodrigo at its center or a chain conspiracy. Either way, the Government claims, it introduced sufficient evidence to convict Ocean of the charged conspiracy.

         In his reply brief, Ocean clarifies something that he had hinted at in his opening brief. His claim is not just that the evidence was insufficient to establish that he participated in the broader conspiracy involving Mitchell and sources in Connecticut. His claim is that because he did not share the goals of any of the conspirators, he therefore could not have been convicted of either the broader "New Haven-to-Bangor" conspiracy or the narrower conspiracy in Bangor.

         We agree with the Government that it was not required to prove that Ocean was a participant in a broader conspiracy to distribute drugs from Connecticut. That is not what the Indictment charged. Moreover, viewing the record in the light most favorable to the verdict, we find ample evidence that Ocean did participate in the charged conspiracy.

         To prove a conspiracy, the evidence must show:

(1) the existence of a conspiracy, (2) the defendant's knowledge of the conspiracy, and (3) the defendant's knowing and voluntary participation in the conspiracy. "Under the third element, the evidence must establish that the defendant both intended to join the conspiracy ...

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