United States of America v. Odin D. Payne

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3458
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ODIN D. PAYNE,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 98 CR 103--Rudolph T. Randa, Judge.
Argued April 14, 2000--Decided September 1, 2000
Before POSNER, RIPPLE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. On June 16, 1998, a grand
jury indicted Odin D. Payne and three others on
charges of conspiracy to manufacture and
distribute marijuana and money laundering. The
other defendants, Chad Nelson, Mike Salinas and
Eli Colon-Rivera, pled guilty to some of the
charges. Payne proceeded to trial, and was
convicted of the drug conspiracy count under 21
U.S.C. sec.sec. 841(a)(1) & 846, but acquitted on
the money laundering counts. He appeals his drug
conspiracy conviction, alleging that the evidence
demonstrated the possibility of multiple
conspiracies and the court failed to provide a
proper instruction, and that the court erred in
calculating his sentence.
The trial testimony established an extensive
conspiracy to acquire and distribute marijuana.
Payne used various other persons during the
conspiracy to obtain, store, and distribute
marijuana in the Milwaukee area at his direction.
To maximize profits, Payne sought alternately to
obtain marijuana at lower prices and to obtain
higher-quality marijuana that would command a
higher resale price. He thus traveled, or sent
others, to Texas and California to obtain
marijuana at lower prices, and also obtained
higher-quality marijuana from sources in
Minnesota. The "home-grown" marijuana from
Minnesota proved so profitable that Payne decided

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to establish his own growing operation in an
attempt to duplicate the quality. Nelson was the
appointed horticulturist. He initially had
established a growing operation in an attic, but
later Payne with others located a warehouse which
they leased to begin a larger scale marijuana
crop. They purchased 2000 pots for cultivating
marijuana plants, and began construction of the
growing lights and other requirements of a
successful operation. The government raided the
site before the actual plants were introduced.
I.
Payne asserts that the evidence at trial
established multiple conspiracies rather than the
one charged in the indictment, and therefore
caused a prejudicial variance between the
allegations in the indictment and the proof at
trial. He further contends that the district
court erred in refusing his multiple conspiracy
jury instruction. We review first his claim that
the court erred in refusing to give his proffered
jury instruction.
A defendant is entitled to an instruction on
his theory of defense only if: (1) the proffered
instruction is a correct statement of the law;
(2) the defendant’s theory is supported by the
evidence; (3) the asserted defense theory is not
already part of the charge; and (4) the failure
to include the instruction on the defendant’s
theory would deny him a fair trial. United States
v. Wilson, 134 F.3d 855, 864 (7th Cir. 1998).
Payne’s proposed instruction fails the first
prong in that it was not a correct statement of
the law. The instruction required the jury to
acquit if it found that the conspiracy to which
Payne was a party varied from the conspiracy
charged in the indictment:
If you find that a particular defendant was a
member of a separate conspiracy other than the
conspiracy charged in the indictment and do not
find beyond a reasonable doubt that such
defendant was a member of the conspiracy charged
in the indictment, then you must acquit the
defendant.
In other words, to find a defendant guilty of the
conspiracy charge, you must find beyond a
reasonable doubt that he was a member of the
conspiracy charged in the indictment, not some
other conspiracy.
In Wilson, we held that a nearly identical
instruction was erroneous and should not be
given. Id. at 864-65. As in Wilson, Payne’s
instruction would require the jury to acquit if
it found that the conspiracy proven varied from
the conspiracy charged in the indictment. That

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ignores the established principle that a
prosecutor may elect to proceed on a subset of
the allegations in an indictment and prove a
conspiracy smaller than the one alleged. Id. at
865; United States v. Duff, 76 F.3d 122, 126 (7th
Cir. 1996). Where a subset of the charged
conspiracy is proven, the variance between the
indictment and the conspiracy proven is not fatal
because the indictment would have adequately
notified the defendant of the government’s
accusations. Wilson, 134 F.3d at 865. Because the
proposed instruction suggests that a variance
will always be fatal, "the proposed instruction[
] always will be incorrect." Id. Accordingly,
Payne was not entitled to the submission of his
proposed instruction because it was not a correct
statement of the law.
Moreover, we note that the district court in
fact instructed the jury that the government had
to prove that Payne was part of the conspiracy
charged:
To sustain the charge of conspiracy to distribute
or manufacture marijuana, the Government must
prove first that the conspiracy as charged in
Count 1 existed. And second, that the Defendant
knowingly became a member of the conspiracy with
intention to further the conspiracy. And third,
that an overt act was committed by at least one
conspirator in furtherance of the conspiracy.
Transcript Vol. 4, p. 802 (emphasis added). We
have held that similar instructions eliminated
any prejudice from the failure to give a multiple
conspiracy instruction. United States v.
Thornton, 197 F.3d 241, 255 (7th Cir. 1999);
United States v. Katalinich, 113 F.3d 1475, 1482-
83 (7th Cir. 1997).
Payne contends, however, that there was a
prejudicial variance between the allegations in
the indictment and the proof at trial because the
evidence established multiple conspiracies rather
than the single conspiracy charged in the
indictment. Specifically, Payne asserts that the
evidence at trial established four separate
conspiracies, which are characterized by the
different suppliers of marijuana to Payne and his
conspirators. We have repeatedly held that a
claim of a variance based upon multiple
conspiracies amounts to a challenge to the
sufficiency of the evidence supporting the jury’s
finding that the conspiracy charged in the
indictment was proven. United States v.
Polichemi, ___ F.3d ___, 2000 WL 898693 *4 (7th
Cir. Jul 05, 2000). Therefore, Payne can succeed
on his variance claim only if he can establish
that the evidence at trial was insufficient to
support the jury’s finding of a single conspiracy

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and that he was prejudiced by the variance.
Wilson, 134 F.3d at 865.
The evidence in this case was more than
sufficient to support the finding of a single
conspiracy. The indictment in this case charged
a conspiracy to manufacture and distribute
marijuana and included the allegation that Payne
would direct couriers to California and/or Texas
for the purpose of acquiring marijuana to
distribute in Wisconsin, and that he made
preparations to establish an indoor marijuana
grow operation. Payne grounds his claim of
multiple conspiracies on the existence of
different suppliers of marijuana. The existence
of multiple suppliers in a conspiracy to
distribute marijuana in one geographic area, here
the Milwaukee area, does not equate with multiple
conspiracies. In fact, the indictment itself
identifies three different potential sources for
the marijuana: Texas, California, and a potential
indoor marijuana grow operation. Payne
nevertheless attempts to parse out multiple
conspiracies based upon the nature of the
supplier. Thus, according to Payne, the first
conspiracy involves suppliers located in
California and Texas, the second conspiracy
involves suppliers in Minnesota, the third
involves suppliers in the Milwaukee area, and the
fourth was the conspiracy named in the
indictment. The first obvious defect in this
argument is that the indictment in fact
identifies the sources in Texas and California,
so his first and fourth conspiracies are
virtually indistinguishable. More fundamentally,
the trial testimony is clear that all of the
transactions identified as separate conspiracies
by Payne were actually part of the same
conspiracy to obtain and distribute marijuana in
the Milwaukee area. There was significant overlap
in the individuals involved in the Minnesota,
Texas, California, and Milwaukee area
transactions, as well as substantial interaction
among those individuals that was unrelated to
those transactions but related to the
distribution scheme as a whole. Thus, the
individuals who participated in the transactions
with those sources did not limit their
involvement in the conspiracy to those
transactions alone, but rather were involved in
a number of ways in other aspects of the
distribution scheme in Milwaukee. The use of
different sources was simply a reflection of the
consistent effort to maximize profits for the
single distribution scheme-- whether by
increasing quality and thus raising resale price
(which motivated the Minnesota transaction and
the indoor grow operation) or by decreasing cost
and thus increasing profit on resale (which
sparked the California and Texas acquisitions).

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Therefore, the employment of diverse suppliers
did not evidence "separate agreements to
effectuate distinct purposes" that are the
hallmarks of multiple conspiracies. Katalinich,
113 F.3d at 1482. There was ample evidence here
for a jury to find a single conspiracy.
II.
Payne also raises a number of challenges to the
court’s determination of relevant conduct in
sentencing him. First, Payne argues that the
court erred in considering acts alleged to have
occurred in 1997 and 1998. His sole argument
against inclusion of those years in calculating
drug weights is that those acts were beyond the
scope of the indictment which was limited to the
years 1993 to 1996. Relevant conduct, however, by
definition can be broader than the conduct
underlying the offense of conviction. In
determining drug weight, the term "relevant
conduct" includes "all acts and omissions that
were part of the same course of conduct or common
scheme or plan as the offense of conviction."
U.S.S.G. sec. 1B1.3(a)(2). Payne raises no
argument to this court that the conduct in 1997
and 1998 was not part of the same course of
conduct (and he would probably have fared poorly
had he made such an argument.) His contention
that relevant conduct cannot include acts
occurring beyond the time frame of the indictment
is unsupported by law.
Payne next asserts that the relevant conduct
determination is defective because the court
erred by including the 2000 empty pots intended
for the warehouse grow operation in its drug
weight calculations. The court calculated that
Payne was responsible for 570 kilograms of
marijuana. In reaching that figure, the court
accepted the government’s figures that break down
as follows:
1993 April 199440 kilograms
April 1994 July 1998285 kilograms
Chad Nelson attic grow operation 5 kilograms
Minnesota transactions 40 kilograms
2000 pots = 2000 plants x 100 grams 200 kilograms
TOTAL RELEVANT CONDUCT 570 kilograms
Thus, the total figure included 200 kilograms
that were attributable to the warehouse grow
operation. That figure was reached by equating
the 2000 empty pots with an intention to
cultivate 2000 marijuana plants. The 2000
marijuana plants are converted under the
guidelines to 200 kilograms of marijuana.
U.S.S.G. sec. 2D1.1 Background. All parties agree
that no actual marijuana plants had yet been

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grown at that location. Nevertheless, sec. 2X1.1
of the guidelines instructs the court to apply
the base offense level "for the substantive
offense, plus any adjustments from such guideline
for any intended offense conduct that can be
established with reasonable certainty." That
section directs the court to sec. 2D1.1 for the
calculation of the offense level. Under sec.
2D1.1, the court was required to determine the
amount of marijuana for which Payne was
responsible under the relevant conduct provisions
of sec.sec. 1B1.3 and 2D1.1. Application Note 12
of sec. 2D1.1 provides that
[w]here . . . the amount seized does not reflect
the scale of the offense, the court shall
approximate the quantity of the controlled
substance. In making this determination, the
court may consider, for example, . . . similar
transactions in controlled substances by the
defendant, and the size or capability of any
laboratory involved.
If the offense involved both a substantive drug
offense and an attempt or conspiracy . . . the
total quantity involved shall be aggregated to
determine the scale of the offense.
Therefore, the court could properly examine the
size and capability of the warehouse grow
operation in calculating the relevant conduct.
The focus is on whether the defendant had the
intent to provide the amount of drugs at issue,
and whether the defendant was reasonably capable
of providing them. See, e.g., United States v.
Bertrand, 926 F.2d 838, 845-47 (9th Cir. 1991)
(under same guideline provision, court included
"potential" methamphetamine production of a lab
in calculating drug weight even though one
essential ingredient was not present). An
examination of the facts reveals that Payne
intended to grow a significant amount of
marijuana at that location, and had taken
substantial steps towards realizing that
intention. The government raid on the warehouse
revealed preparations for an extensive grow
operation there. Construction had begun to
transform the area into a space suitable for
growing marijuana, including building a wall and
assembling light racks and a shelving system with
8 foot fluorescent lights attached. The
conspirators had acquired growing lights, a
regulator which regulates CO-2 for indoor growing
operations, a chemical additive for paint that
would reduce the penetration of heat through the
walls, as well as the 2000 empty pots that were
intended to hold marijuana plants. The existence
of that equipment supported a finding that Payne
intended to establish a grow operation there of
a substantial size. Moreover, Payne had

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demonstrated his ability to coordinate a
successful grow operation with the success of the
attic grow operation undertaken by co-conspirator
Nelson at Payne’s direction. Nelson was involved
in the preparations at the warehouse as well.
Therefore, we have here evidence that Payne
intended to grow marijuana plants at the
warehouse, that he had the physical space and the
equipment necessary to begin that operation, and
that he possessed the know-how, through Nelson,
to accomplish that task. Those facts support a
finding to a reasonable certainty that Payne
intended to grow marijuana plants there and was
reasonably capable of doing so.
We need not consider whether the court, in
determining relevant conduct, could properly
include all 2000 pots as representing 2000
marijuana plants (and thus 200 kilograms). Payne
falls within the sentencing range of 121-151
months if he is responsible for 400 to 700
kilograms of marijuana. U.S.S.G. sec. 2D1.1(c).
It is undisputed that 370 of the total kilograms
were attributable to sources other than the
intended warehouse operation. The only question,
then, is whether the court could properly
attribute 30 kilograms to that warehouse
operation. We find no error in such a conclusion.
If even 15%, or 300, of the 2000 empty pots were
to be used, then the 30 kilogram figure is met.
The equipment found at the warehouse as well as
the past experience in growing marijuana allowed
the court to find that Payne intended to grow at
least 300 marijuana plants at that location, and
that he had the capability to do so. Accordingly,
the court did not err in determining the
guideline range for sentencing and in sentencing
Payne to the low end of that range, 121 months.
Because Payne was sentenced to 121 months under
the guidelines, we need not consider Payne’s
objections to the 10-year mandatory minimum
sentence held applicable to him under 21 U.S.C.
sec. 841(b). Because his guideline range was
greater than the mandatory minimum, that
provision was not applied to him and did not
affect his sentence in any way.
Finally, Payne also complains that the court
erred in increasing his offense level by four
levels pursuant to U.S.S.G. sec. 3B1.1(a) based
upon its determination that he maintained a
supervisory and leadership role in the
conspiracy. This argument is without merit. We
would have to reject the testimony of virtually
every other participant in this conspiracy in
order to reject the court’s conclusion that he
acted in a leadership and supervisory role. The
consistent testimony is that Payne was directing
the actions of others in the acquisition and

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distribution of drugs and in the collection of
the proceeds. The court’s finding is well-
supported by the testimony in this case, and we
find no clear error. See United States v.
Hardemon, 188 F.3d 843, 851 (7th Cir. 1999)
(decision to apply an adjustment for role in the
offense is reviewed for clear error).
For the above reasons, we find no reversible
error in the conviction or sentence. The decision
of the district court is affirmed.

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