United States of America v.  Ayande Yearwood

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 06-5128 
AYANDE YEARWOOD,
Defendant-Appellant. 
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Richard D. Bennett, District Judge.
(1:05-cr-00105-RDB)
Argued: December 7, 2007
Decided: March 6, 2008
Before WILKINSON and SHEDD, Circuit Judges, and
John Preston BAILEY, United States District Judge for the
Northern District of West Virginia, sitting by designation.
Affirmed by published opinion. Judge Wilkinson wrote the opinion,
in which Judge Shedd and Judge Bailey joined.
COUNSEL
ARGUED: Matthew McGavock Robinson, ROBINSON &
BRANDT, P.S.C., Cincinnati, Ohio, for Appellant. Charles Joseph
Peters, Sr., Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
ON BRIEF: Rod J. Rosenstein, United States Attorney, Baltimore,
Maryland, for Appellee.

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OPINION
WILKINSON, Circuit Judge:
Ayande Yearwood appeals his conviction for conspiracy to distrib-
ute and possess with intent to distribute 50 grams or more of cocaine
base, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (2000). Year-
wood was initially charged with this conspiracy offense and a second
count of distribution of 50 grams or more of cocaine base, in violation
of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (2000). A jury acquitted
Yearwood on the distribution count and hung on the conspiracy
offense, resulting in a mistrial on the conspiracy charge. In a second
trial, Yearwood was found guilty of conspiracy.
Yearwood claims on appeal that the Double Jeopardy Clause of the
Fifth Amendment barred his retrial for conspiracy, because the retrial
required relitigation of "an issue of ultimate fact" already determined
by the jury in his first trial for the substantive crime of distribution.
A substantive crime and conspiracy to commit that crime are "sepa-
rate offenses" for purposes of the Double Jeopardy Clause, however,
because an agreement to do an act is distinct from the act itself.
United States v. Felix, 503 U.S. 378, 390 (1992). Largely because the
two offenses are distinct, Yearwood’s second trial did not require reli-
tigation of "an issue of ultimate fact" that had already been deter-
mined in the first trial. See, e.g., Schiro v. Farley, 510 U.S. 222, 232
(1994). Because there was substantial evidence from which a rational
jury could find Yearwood guilty of conspiracy, we affirm Yearwood’s
conviction.
I.
The indictment charges that on or about July 25, 2002, Ayande
Yearwood knowingly conspired to distribute and possess with intent
to distribute 50 grams or more of cocaine base. The conspiracy was
an outgrowth of the relationship between Yearwood and two other
individuals, Maurice Malone and Kevon Isaac. Yearwood had a long-
standing social and business relationship with both men. Indeed, both
Malone and Isaac testified that they had known Yearwood since the
early 1990s. In 1992, Malone and Yearwood were charged and con-
victed together for possession with intent to distribute cocaine and
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conspiracy to distribute cocaine. Isaac also testified that between 1999
and 2001, he had purchased cocaine base from Yearwood on approxi-
mately twenty occasions.
In January 2002, Isaac was arrested by the FBI and charged with
distribution of cocaine base. He pled guilty to the charge, and in the
hopes of receiving a reduced sentence, he agreed to cooperate with
the FBI as an informant. Isaac testified that after his arrest, he was
unable to obtain drugs from Yearwood because Yearwood was afraid
that Isaac might be working with law enforcement. Since Isaac could
not contact Yearwood directly about obtaining drugs, the FBI
instructed Isaac to contact "lower level drug traffickers," such as
Malone, who could get in touch with Yearwood. Malone was neither
working with the FBI nor aware that Isaac was cooperating with it.
At the FBI’s direction, Isaac called Malone numerous times in July
2002 about arranging the purchase of a large amount of cocaine base
from Yearwood. According to both Isaac’s and Malone’s testimony,
during one particular call on July 22, Isaac asked Malone whether he
had spoken to "Meloton" or "Militan" (nicknames of Yearwood’s)
about the "food" (a code word for cocaine base). Malone said that he
had spoken with Yearwood, and that Yearwood had said he wanted
"49" ($4900.00) for "seven" (seven ounces of cocaine base).
Also during July 2002, the FBI installed a dialed number recorder
("DNR") on the landline telephone at Malone’s apartment which
allowed the FBI to see the numbers of incoming and outgoing calls
to Malone’s landline, as well as the dates and times of those calls.
DNR records indicated that between July 9 and July 31, 2002, numer-
ous calls were made to and from Malone’s telephone and a cell phone
listed under a third party name but which, according to the govern-
ment, actually belonged to Yearwood. Many of these calls occurred
on July 20, 21, 22, 23, and 25. One recorded call, made on July 23,
was a three-way call involving Yearwood, Malone, and Isaac. The
call began with just Isaac and Malone, but after Malone told Isaac that
he had not yet gotten the "food" from Yearwood, Isaac asked Malone
to connect Yearwood on a three-way call. After Yearwood was con-
nected, Isaac began speaking with him. Yearwood immediately recog-
nized Isaac’s voice. Isaac asked Yearwood whether he had a "CD
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player" or any "CDs" (also code words for cocaine base); Yearwood
said that he did not and immediately hung up.
Malone testified that shortly after the three-way call ended, Year-
wood called to complain about Isaac being put on the three-way call,
and to tell Malone that he did not want Isaac to know he was
Malone’s supplier. That same day, July 23, 2002, Malone and Isaac
continued to discuss Malone’s plan to obtain seven ounces of cocaine
base from Yearwood. Because Yearwood did not want to deal with
Isaac, the two agreed not to tell Yearwood that the cocaine was for
Isaac. Malone also told Isaac that Yearwood would want all the
money up front.
Based on these various conversations, the FBI instructed Isaac to
complete the cocaine purchase on July 25, 2002. On that day, FBI
agents set up surveillance at both Malone’s and Yearwood’s apart-
ments at 4:00 p.m. At around 6:10 p.m., Detective Glen Hester video-
taped Yearwood walking into Malone’s apartment. Malone testified
that Yearwood was carrying cocaine base in the waist area of his
pants. Yearwood was videotaped leaving Malone’s apartment about
three minutes later.
After Yearwood left, Malone called Isaac and told him to "come
now." Isaac was then videotaped going into Malone’s apartment.
While Isaac was in Malone’s apartment, their conversation was
recorded by a body recorder Isaac was wearing. During that conversa-
tion, Malone said that Yearwood had only brought five ounces of
cocaine base, and the two agreed that Isaac would pay $3500 for it.
After paying for the cocaine base, Isaac left Malone’s apartment to
meet with FBI agents and to turn over the drugs and the remaining
money. After analyzing the drugs, the FBI determined them to be
cocaine base.
Malone testified that he had arranged to give the money from the
drug sale to Yearwood at a later time. Between approximately 7:00
and 8:00 p.m., surveillance officers observed Yearwood’s car parked
at an auto repair shop about five miles from Malone’s Apartment.
Around 8:15 p.m., the FBI saw Malone leave his apartment on foot.
To avoid jeopardizing the ongoing investigation and to protect Isaac’s
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identity as an informant, surveillance discontinued at that point, and
no arrests were made that day.
In July 2004, Malone was arrested for distribution of cocaine base.
Malone pled guilty and agreed to testify for the government against
other drug dealers in hopes of obtaining a reduced sentence. In March
2005, likely based on evidence gathered against Yearwood by the FBI
and Malone’s statements that Yearwood was one of his sources for
the cocaine base he had sold in 2002, a federal grand jury returned
a two-count indictment against Yearwood. Yearwood was subse-
quently arrested in April 2005.
Count One of the indictment charged Yearwood with conspiracy to
distribute and possess with intent to distribute 50 grams or more of
cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Count
Two charged Yearwood with distribution as a principal or as an aider
and abettor of 50 grams or more of cocaine base, in violation of 21
U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
In the first trial, a jury found Yearwood not guilty on the distribu-
tion charge, and the court entered a judgment of acquittal as to that
count on December 5, 2005. However, the jury was unable to reach
a verdict as to the conspiracy charge, and the court declared a mistrial
as to that count. On April 28, 2006, after retrial on the conspiracy
charge, a second jury found Yearwood guilty of conspiracy. On May
5, 2006, Yearwood filed a Motion for Judgment of Acquittal, which
was denied on May 17, 2006.
Yearwood timely appealed.
II.
Yearwood first challenges the sufficiency of the evidence to sup-
port his conspiracy conviction. In order to prove conspiracy to distrib-
ute and possess cocaine base with intent to distribute, the government
was required to establish beyond a reasonable doubt that: "(1) an
agreement" to distribute and "possess cocaine with intent to distribute
existed between two or more persons; (2) the defendant knew of the
conspiracy; and (3) the defendant knowingly and voluntarily became
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a part of this conspiracy." United States v. Burgos, 94 F.3d 849, 857
(en banc) (4th Cir. 1996). The gravamen of the crime "is an agree-
ment to effectuate a criminal act." United States v. Laughman, 618
F.2d 1067, 1074 (4th Cir. 1980).
Because a conspiracy is by nature "clandestine and covert," there
rarely is direct evidence of such an agreement. Burgos, 94 F.3d at
857. As such, a conspiracy is usually proven by circumstantial evi-
dence. See, e.g., Ianelli v. United States, 420 U.S. 770, 777 n.10
(1975); Burgos, 94 F.3d at 857. "Circumstantial evidence tending to
prove a conspiracy may consist of a defendant’s ‘relationship with
other members of the conspiracy, the length of this association, [the
defendant’s] attitude [and] conduct, and the nature of the conspir-
acy.’" Burgos, 94 F.3d at 858 (quoting United States v. Collazo, 732
F.2d 1200, 1205 (4th Cir. 1984)). Thus, a conspiracy "may be inferred
from a development and collocation of circumstances." Burgos, 94
F.3d at 858 (quotation omitted).
Addressing Yearwood’s objections to the government’s case, there
was plainly sufficient evidence to prove that Yearwood entered into
an agreement with Malone and Isaac to distribute cocaine base.
Malone’s testimony is ample evidence that Yearwood and Malone
were partners in this common enterprise. And while this court has
held that even the uncorroborated testimony of a co-conspirator may
be sufficient to support a guilty verdict for conspiracy, see United
States v. Baker, 985 F.2d 1248, 1255 (4th Cir. 1993), Malone’s testi-
mony is corroborated by Isaac’s testimony, the videotape of Year-
wood visiting Malone at his apartment, the recorded telephone calls
among Isaac, Malone, and Yearwood, and DNR records showing a
large number of phone calls logged between Yearwood’s cell and
Malone’s landline. See id. at 1255 (a large number of telephone calls
between two alleged co-conspirators "supports the view that the two
were partners").
Yearwood, however, contends that this evidence at most estab-
lishes that he and Malone had a buyer-seller relationship, and that
such a relationship "does not provide the grounds for finding a con-
spiracy." See United States v. Mills, 995 F.2d 480, 485 (4th Cir.
1993). However, "evidence of a buy-sell transaction is at least rele-
vant (i.e. probative) on the issue of whether a conspiratorial relation-
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ship exists." Id. at 485 n.1. Further, evidence of such a relationship,
when combined with evidence of a substantial quantity of drugs —
as here — "would support a reasonable inference that the parties were
coconspirators." Id. Moreover, the amount of cocaine base and money
that Malone testified he had discussed with Yearwood (seven ounces
for $4900), and the amount of cocaine base and money involved in
the July 25 transaction (five ounces for $3500) far exceeded the
amounts involved in a simple buyer-seller transaction, and supports
an inference that Malone and Yearwood were distributing drugs
together.
Further, Yearwood’s suggestion that he was only in the business of
distributing Caribbean music CDs is without merit. Isaac and Malone
each testified that they had purchased cocaine base, not music, from
Yearwood many times before. Moreover, FBI Special Agent
Sapilway testified that it is common for drug traffickers to use words
like "food" and "CDs" to mean drugs. Both Isaac and Malone testified
that "food," "CDs," and "CD Player" were code for cocaine base. This
was more than enough to support a rational jury finding that Year-
wood was deep into the drug trade, and that when Yearwood offered
Malone "seven" for "49" over the telephone, he was referring to
cocaine base and dollar amounts, not to actual "food" or "CDs."
Because a rational jury certainly could have found beyond a rea-
sonable doubt that Yearwood knowingly engaged in a conspiracy to
distribute and possess cocaine base with intent to distribute, we con-
clude that Yearwood’s conviction is supported by substantial evi-
dence.
III.
Yearwood contends that his retrial on the conspiracy count violated
his rights under the Double Jeopardy Clause of the Fifth Amendment
because he had earlier been acquitted of the substantive crime of dis-
tribution of cocaine base. Double jeopardy bars a second prosecution
for the same offense after acquittal or after conviction. See, e.g., Dep’t
of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 769 n.1 (1994).
Moreover, the collateral estoppel component of double jeopardy bars
the "relitigation of adjudicated issues whether they emerge in trials
for the same or distinct offenses." United States v. Ruhbayan, 325
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F.3d 197, 201 (4th Cir. 2003) (quotation omitted). We conclude that
double jeopardy poses no bar to Yearwood’s conviction.
A.
We must first determine whether the two offenses at issue here —
the substantive offense of distribution of cocaine base and conspiracy
to commit that offense — are the "same offense" such that retrial on
the conspiracy count was barred by the Double Jeopardy Clause. The
Supreme Court has long held that two offenses are the "same" for
Double Jeopardy purposes if they cannot survive the "same-elements"
test. See, e.g., United States v. Dixon, 509 U.S. 688, 696 (1993). The
"same-elements" test asks "whether each offense contains an element
not contained in the other; if not, they are the ‘same offence’ and dou-
ble jeopardy bars additional punishment and successive prosecution."
Id.
The two offenses here are not the same. A substantive crime and
conspiracy to commit that crime are "separate offenses" for purposes
of the Double Jeopardy Clause, even if they are based on the same
underlying incidents. Felix, 503 U.S. at 389-90; see also United States
v. Banks, 10 F.3d 1044, 1050 (4th Cir. 1993). Indeed, "conspiracy is
a distinct offense from the completed object of the conspiracy." Gar-
rett v. United States, 471 U.S. 773, 778 (1985). This is because "the
agreement to do the act is distinct from the act itself." United States
v. Bayer, 331 U.S. 532, 542 (1947).
To prove distribution of cocaine base, the government had to show
that Yearwood, as a principal, (1) knowingly or intentionally (2) dis-
tributed (3) 50 grams of cocaine base, or that, as an aider and abettor,
he "knowingly associated himself with and participated in the crimi-
nal venture," here, distribution of cocaine base. 21 U.S.C. § 841(a)(1);
18 U.S.C. § 2; Burgos, 94 F.3d at 873. In contrast, to prove conspir-
acy to distribute and possess with intent to distribute 50 grams or
more of cocaine base, the government had to establish that "(1) an
agreement" to distribute and "possess cocaine with intent to distribute
existed between two or more persons; (2) the defendant knew of the
conspiracy; and (3) the defendant knowingly and voluntarily became
a part of this conspiracy." Burgos, 94 F.3d at 857.
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Yearwood suggests that an overlap exists between the "knowingly
associated himself with and participated in the criminal venture" ele-
ment of aiding and abetting the substantive offense and the "know-
ingly and voluntarily became a part of th[e] conspiracy" element of
conspiracy. But the two are separate: the former involves participation
in the criminal act itself; the latter involves participation in an agree-
ment to perform that act. See United States v. Shabani, 513 U.S. 10,
16 (1994) ("[T]he criminal agreement itself is the actus reus . . . .").
Felix makes clear that Yearwood’s retrial for conspiracy violates no
double jeopardy bar. 503 U.S. at 391.
B.
Although the conspiracy retrial did not run afoul of the "same-
elements" test, Yearwood contends that the collateral estoppel compo-
nent of the Double Jeopardy Clause barred retrial on the conspiracy
count because it "required relitigation of factual issues already
resolved at the first trial." See Dowling v. United States, 493 U.S. 342,
347 (1990).
Collateral estoppel "means simply that when an issue of ultimate
fact has once been determined by a valid and final judgment, the issue
cannot again be litigated between the same parties in any future law-
suit." Ashe v. Swenson, 397 U.S. 436, 443 (1970). The Fourth Circuit
has not spoken precedentially on the precise issue of whether a retrial
on a conspiracy count after an acquittal on the underlying substantive
count runs afoul of the doctrine of collateral estoppel. However, we
find two decisions of our sister circuits instructive. Both the Fifth and
the Eleventh Circuits have addressed whether the collateral estoppel
doctrine applies to subsequent conspiracy prosecutions after an
acquittal on the substantive crime of possession with intent to distrib-
ute. Both courts concluded that collateral estoppel prohibited neither
the subsequent trial on the conspiracy charge nor the admission of
evidence related both to the acquitted charge and to the charge of con-
spiracy. See United States v. Gil, 142 F.3d 1398, 1401-02 (11th Cir.
1998); United States v. Brackett, 113 F.3d 1396, 1400-1402 (5th Cir.
1997).
In Brackett, the Fifth Circuit reversed the district court’s decision
to suppress, at a trial for conspiracy, evidence related to a possession
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with intent to distribute offense for which the defendant was previ-
ously acquitted, on the grounds that "[a] general verdict of acquittal
merely indicates that the government has failed to convince the jury,
beyond a reasonable doubt, of at least one essential element of the
substantive offense; it does not ‘necessarily determine’ any facts at
issue in the conspiracy trial." 113 F.3d at 1400. And in Gil, the Elev-
enth Circuit also reversed the district court’s decision to suppress, in
a retrial for conspiracy, evidence related to the acquitted possession
with intent to distribute offense. The court noted that even if certain
facts are "necessarily determined" in the prior trial, if those facts do
not constitute "an essential element of the mistried count," that is,
they "do not constitute an ultimate issue regarding the mistried
count," then the government "not only may retry the mistried count
but also may introduce evidence relating to the acquitted count that
is relevant to the mistried count and otherwise satisfies the Federal
Rules of Evidence." 142 F.3d at 1401 (citing Dowling, 493 U.S. at
348-49 (permitting evidence related to a previously acquitted charge
when that evidence is admissible for a purpose that does not require
proof beyond a reasonable doubt)).
Guided by these principles, we turn to Yearwood’s argument that
certain facts were "necessarily determined" in the first trial, and that
those facts constituted "ultimate issues" as to the mistried conspiracy
count. Specifically, Yearwood argues that because the jury in the first
trial determined that he did not commit, as a principal or as an aider
and abettor, the crime of distribution of cocaine base, the jury neces-
sarily determined that Yearwood did not supply cocaine base to
Malone on July 25, 2002. According to Yearwood, the only evidence
of Yearwood’s participation in the conspiracy was evidence that he
had supplied the drugs to Malone. Therefore, not only was the gov-
ernment collaterally estopped, under the Double Jeopardy Clause,
from introducing evidence that Yearwood supplied drugs to Malone,
but also the government was barred from retrying him on the conspir-
acy count, since it required relitigation of an "essential" or "ultimate"
fact already resolved in Yearwood’s favor by the first jury.
Yearwood, however, cannot meet his burden of establishing that
the first jury "necessarily determined" a factual issue "essential" to
proving an element of the conspiracy count. See Schiro, 510 U.S. at
232; Gil, 142 F.3d at 1401. To begin, discerning precisely what facts
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were "necessarily determined" in a general jury verdict is no easy
task, and as such, "[c]ourts have always resisted inquiring into a
jury’s thought processes." United States v. Powell, 469 U.S. 57, 67
(1984). Moreover, we need not attempt to divine the precise thoughts
of the first jury. Even if, as Yearwood contends, the first jury "neces-
sarily determined" that Yearwood did not actually supply cocaine
base to Malone on July 25, 2002, given that a substantive and conspir-
acy offense involve separate elements, it is quite unlikely that a fac-
tual finding with respect to any particular act is "essential" to proving
the elements of conspiracy.
This makes perfect sense. The Supreme Court has repeatedly
emphasized that, unless Congress expressly requires otherwise, a
finding of conspiracy does not hinge on the commission of any one
overt act, nor does it require commission of the object offense. See,
e.g., Whitfield v. United States, 543 U.S. 209, 211, 218 (2005); Sha-
bani, 513 U.S. at 11; see also 21 U.S.C. § 846. Indeed, a conspirato-
rial agreement is likely to be broader than one particular act. The
government presented substantial evidence to this effect — including
Malone’s testimony that he had agreed with Yearwood to obtain
drugs from Yearwood for distribution to others, and that he would
help Yearwood with his drug sales by negotiating with customers,
arranging the times and places for drug sales, and insulating Year-
wood from customers; Malone’s testimony, corroborated by Isaac’s
testimony, that Yearwood offered to sell the sizeable quantity of
seven ounces of cocaine for $4900; and FBI Agent Sapilway’s testi-
mony, corroborated by Malone’s and Isaac’s testimony, that the
words "CD" and "food" were code in the drug trade for cocaine base.
This evidence bears out the Supreme Court’s observation that the
crime of conspiracy involves a knowing agreement to conspire and
cannot be tied to any one act. While Yearwood claims the "offense
conduct" for both the substantive and conspiracy offenses was the
July 25 sale, a conspiracy most often signals a much broader enter-
prise than a single distributional event, and so it was here.
Because the issue of whether Yearwood actually supplied cocaine
base to Malone on July 25, 2005 was not an "ultimate issue" as to the
conspiracy count, the government was not barred from introducing
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evidence that was probative of the elements of conspiracy or from
retrying the conspiracy count.*
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
*Yearwood also argues that the district court abused its discretion by
admitting into evidence Yearwood’s 1992 conviction for possession with
intent to distribute cocaine and conspiracy to distribute cocaine. How-
ever, the contested piece of evidence was admitted not to prove Year-
wood’s criminal disposition, but rather to prove Yearwood’s knowledge
and intent. See Fed. R. Evid. 404(b). The defendant’s knowledge and
intent are elements the government must establish to prove a conspiracy
to violate 21 U.S.C. § 841(a)(1). See United States v. Mark, 943 F.2d
444, 448 (4th Cir. 1991). Yearwood put the question of his knowledge
and intent at issue at trial by arguing, among other things, that he was in
the legitimate business of selling CDs of Caribbean music, suggesting
that he did not have any intention of engaging in a conspiracy to distrib-
ute cocaine base. Finally, the district court did not abuse its discretion
under Federal Rule of Evidence 403 in admitting the evidence.
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