United States of America v. Paul L. Williams

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PAUL L. WILLIAMS,
Defendant - Appellant.
No. 12-10012
D.C. No. 4:10-cr-00915-RCC-
CRP-4
MEMORANDUM*
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MIKADO NABOB THOMPSON,
Defendant - Appellant.
No. 12-10017
D.C. No. 4:10-cr-00915-RCC-
CRP-1
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, Chief District Judge, Presiding
Argued and Submitted December 8, 2014
San Francisco, California
FILED
JAN 06 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Before: TASHIMA and PAEZ, Circuit Judges, and QUIST, Senior District
Judge.**
Appellant Mikado Thompson was the leader of a multi-state marijuana
trafficking organization, and Appellant Paul Williams was a long time participant
in the organization. A jury convicted Thompson of running a continuing criminal
enterprise (“CCE”), and convicted Williams of conspiring to distribute marijuana.
Williams was sentenced to 121 months. Thompson challenges the validity of his
CCE conviction. Williams challenges his conviction and sentence.
Because the parties are familiar with the facts, we recite them only as
necessary to illuminate our disposition. We have jurisdiction under 28 U.S.C. §
1291, and we affirm.
A. Thompson
1. To convict on a CCE charge, the government must prove, among
other elements, that the defendant (1) engaged in a continuing series of narcotics
offenses and (2) organized, supervised, or managed five or more persons in the
course of the enterprise. See United States v. Fuchs, 218 F.3d 957, 962-63 (9th
Cir. 2000); United States v. Sterling, 742 F.2d 521, 525 (9th Cir. 1984).
** The Honorable Gordon J. Quist, Senior District Judge for the U.S.
District Court for the Western District of Michigan, sitting by designation.
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Thompson argues that the indictment charging him with the CCE violation was
constructively amended by the introduction of evidence at trial of uncharged
predicate offenses and supervisees who were not disclosed to the grand jury.
Thompson’s argument is foreclosed under our precedents because there is no
requirement that the government list in the indictment the continuing series of
predicates or name the supervisees. See id. at 526 (“[T]here is no legal
requirement that the violations which make up the continuing series be specifically
listed in the indictment.”); United States v. Zanzucchi, 892 F.2d 56, 58 (9th Cir.
1989) (“[T]here is no requirement that an indictment or a bill of particulars identify
the supervisees in a CCE case.”).
2. Thompson argues that the verdict must be set aside because the jury
may have based its verdict on predicate offenses that all occurred outside the five-
year limitations period. So long as the jury relied on one predicate offense that
occurred within the limitations period, Thompson’s CCE conviction is valid.
United States v. Baker, 10 F.3d 1374, 1410 (9th Cir. 1993), overruled in part on
other grounds by United States v. Nordby, 225 F.3d 1053, 1059 (9th Cir. 2000).
The district court instructed the jury that, in order to convict Thompson of
the CCE charge, it had to find (1) Thompson guilty of the conspiracy charge to
distribute marijuana, charged in count two of the second superseding indictment,
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and (2) that the conspiracy constituted one offense in the continuing series of
narcotics violations Thompson committed. The jury convicted Thompson of both
the CCE charge and the conspiracy charge. It is established law “that title 21
conspiracies may serve as predicate offenses under the CCE statute.” United States
v. Hernandez-Escarsega, 886 F.2d 1560, 1571 (9th Cir. 1989). This is so even
when, as here, the conspiracy charge is subsequently dismissed to protect a
defendant against double jeopardy. Id. at 1572, 1582 (affirming a CCE conviction
based upon the predicate conspiracy convictions the panel vacated). Having
reviewed the record, there is substantial evidence that the conspiracy lasted well
into the limitations period, whether measured by the date of the first indictment or
the second superseding indictment. Therefore, the statute of limitations does not
undermine Thompson’s CCE conviction.
3. Thompson argues that his conviction must be vacated because of the
risk that the jury concluded that Thompson supervised five persons (out of 19
possible persons) whom Thompson claims were per se ineligible to be counted as
supervisees. We reject this argument because, viewing the evidence in the light
most favorable to the prosecution, a rational trier of fact could have found that
Santos-Granados, Pacheco, Sims, and LaRocca were managed by Thompson, as
that term is defined under our precedents. See United States v. Montgomery, 384
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F.3d 1050, 1062 (9th Cir. 2004) (standard of review); United States v. Delgado, 4
F.3d 780, 785 (9th Cir. 1993) (describing the management requirement). Contrary
to Thompson’s argument, the government did not suggest that Cogan was
Thompson’s supervisee, and there is no reason to believe the jury counted him as
such.
4. Thompson argues that it was plain error for the district court not to
instruct the jury that a person’s status as a conspirator in the marijuana trafficking
organization does not necessarily mean that Thompson organized, supervised, or
otherwise managed that person. Even assuming the clarification Thompson sought
is a correct statement of the law, the need for a sua sponte instruction on the issue
was not plain.
“An error is plain if it is clear or obvious under current law. An error cannot
be plain where there is no controlling authority on point and where the most
closely analogous precedent leads to conflicting results.” United States v. De La
Fuente, 353 F.3d 766, 769 (9th Cir. 2003) (internal citations omitted). In
Hernandez-Escarsega, we held that a district court does not generally have to
define for a jury the terms “organizer,” “supervisor,” or “manager” of a criminal
enterprise. 886 F.2d at 1571-72. While United States v. Jerome, 942 F.2d 1328,
1331 (9th Cir. 1991), requires a clarifying instruction on the management
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requirement when there is the potential for juror confusion, the default rule remains
that no instruction is necessary. Thus, it was not “clear or obvious under current
law” that a clarifying instruction had to be given. There was no plain error.
B. Williams
1. Williams argues the district court improperly denied him a Franks1
hearing to challenge the wiretap of his cellular phone. Reviewing de novo, United
States v. Ippolito, 774 F.2d 1482, 1484 (9th Cir. 1985), we conclude that the
wiretap affiant did not omit material information from the wiretap affidavit. First,
the affiant disclosed the raid on the Camino de Oeste house in the wiretap affidavit,
and he specifically disclosed the fact that Pacheco and the brown Impala had been
seen on multiple occasions at the Star Pass house. Thus, it does not seem that the
government omitted any information.
Second, even if the affiant could have disclosed more information regarding
the marijuana suppliers, that omission was immaterial because the purpose of the
wiretap was not limited to establishing the source of the marijuana. Viewing “[t]he
necessity for the wiretap . . . in light of the government’s need . . . to develop an
effective case against those involved in the conspiracy,” we conclude that the
“affidavit contains ‘reasonable detail’ and is sufficiently case-specific to pass
1See Franks v. Delaware, 438 U.S. 154 (1978).
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muster under [our] precedent[s].” United States v. Garcia-Villalba, 585 F.3d 1223,
1228, 1229 (9th Cir. 2009). Therefore, Williams was not entitled to a Franks
hearing.
2. The district court properly consolidated Williams’ and Thompson’s
trial. The jury’s individualized assignment of responsibility to Williams and
Thompson regarding drug quantities “is highly indicative of its ability to
compartmentalize the evidence” against them. See United States v. Stinson, 647
F.3d 1196, 1205 (9th Cir. 2011) (internal quotation marks omitted). Moreover, the
district court’s limiting instruction to consider the defendants separately “more
than sufficient[ly] guard[ed] against the possibility of prejudice to [Williams].”
United States v. Decoud, 456 F.3d 996, 1009 (9th Cir. 2006) (internal quotation
marks omitted).
3. The district court did not abuse its discretion by allowing the
government’s substitute Jamaican patois expert to testify at trial. Although
Williams did not receive the notice he was due under Federal Rule of Criminal
Procedure 16, he had in his possession before trial transcripts of the phone calls
that were materially identical to those authenticated by the substitute expert at trial.
Williams thus had the tools to challenge the accuracy of the substitute expert’s
translations; he simply did not do so convincingly. See United States v. Mendoza,
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244 F.3d 1037, 1046-47 (9th Cir. 2001) (upholding a district court’s ruling to allow
a substitute expert to testify despite a Rule 16 violation where the defendant knew
the bases for both experts’ testimony prior to trial).
4. Nor did the district court abuse its discretion by qualifying the
substitute expert as an expert based on his experience speaking Jamaican patois.
See United States v. Abonce-Barrera, 257 F.3d 959, 964 (9th Cir. 2001). Federal
Rule of Evidence 702 explicitly allows an expert to be qualified on the basis of his
experience.
5. Williams argues it was error not to instruct the jury on multiple
conspiracies. This argument is meritless. The district court gave the requested
instruction.
6. It is undisputed that the district court violated Williams’ Fifth and
Sixth Amendment rights under Apprendi v. New Jersey, 530 U.S. 466 (2000),
when the court, and not a jury, determined the quantity of marijuana for which
Williams was responsible. Because the government raised the Apprendi violation
for the first time on appeal, we review for plain error, see United States v.
Gonzalez-Aparicio, 663 F.3d 419, 426-27 (9th Cir. 2011), and we find none.
Williams was sentenced to 121 months pursuant to 21 U.S.C. §
841(b)(1)(B)(vii). That clause provides for a sentence of five to forty years where
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the defendant conspires to possess with the intent to distribute “100 kilograms or
more of a mixture or substance containing a detectable amount of mari[j]uana.” §
841(b)(1)(B)(vii); see also 21 U.S.C. § 846. The record establishes beyond all
doubt that Williams was responsible for at least 100 kilograms of marijuana.
In his formal objections to the presentence investigation report, Williams
argued that “the evidence presented at trial and apparently believed by the jury”
showed that he was responsible for 100 to 400 kilograms of marijuana. This
concession is not unlike the concession made by defense counsel in United States
v. Buckland, which removed “all doubt that the Apprendi error . . . did not affect
the outcome of the proceedings.” 289 F.3d 558, 569-70 (9th Cir. 2002) (en banc).
Moreover, the testimony of Williams’ conspirators directly linked Williams
to more than 100 kilograms of marijuana. Pacheco testified he delivered
approximately 56.7 kilograms of marijuana to Williams on one occasion and later
delivered another 68.39 kilograms. Pacheco also sold approximately 113.8
kilograms of marijuana to Thompson, which he delivered to the Star Pass stash
house that Williams ran. In addition to these purchases, Williams and Pacheco
aided in the recovery and delivery of approximately 68 kilograms of marijuana that
had been locked in a Honda.
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Bruce Oliver was a truck driver who ran bulk loads of marijuana from
Tucson to central Florida. Oliver testified that he received three loads from
Williams. The combined weight of those three loads was at least 163 kilograms.
Whether we look to Williams’ counsel’s concession or to the evidence of
Williams’ direct involvement with marijuana transactions, we are convinced that
Williams was responsible for at least 100 kilograms of marijuana. That amount of
marijuana qualified Williams for a sentence in the range established by §
841(b)(1)(B)(vii).2 Therefore, because the Apprendi violation did not affect
Williams’ substantial rights, there was no plain error and Williams’ sentence is
affirmed. See Buckland, 289 F.3d at 569-70.
AFFIRMED.
2 We have evaluated the Apprendi violation in light of the sentencing clause
actually applied by the district court. However, as the government argues,
Williams’ sentence of 121 months fell within the range established by 21 U.S.C. §
841(b)(1)(C)--i.e., “a term of imprisonment of not more than 20 years”--as well. A
defendant is eligible for a sentence under that clause upon proof of 50 kilograms of
marijuana.
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