F I L E D

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

United States Court of Appeals

Tenth Circuit

DEC 6 1999

PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
No. 98-1199
(D.C. No. 96-CR-444-N)
(D. Colo.)

v.
ARNIE PORTER,
Defendant-Appellant.

ORDER AND JUDGMENT

Before TACHA , KELLY , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.

This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

Defendant Arnie Porter appeals his convictions for conspiracy to distribute

cocaine/crack cocaine, mail fraud, distribution of cocaine, and two counts of
distribution of crack cocaine, for which he received concurrent life sentences.
His appointed attorney has filed a brief pursuant to

Anders v. California , 386 U.S.

738 (1967), and has moved for leave to withdraw from the case. We grant
counsels motion to withdraw and affirm defendants convictions and sentence.
Under Anders , if [appellate] counsel finds his [clients] case to be wholly
frivolous, after a conscientious examination of it, he should so advise the court
and request permission to withdraw.

Id. at 744. This request must be

accompanied by a brief referring to anything in the record that might arguably

support the appeal.

Id. In addition, [a] copy of counsels brief should be

furnished the indigent and time allowed him to raise any points that he chooses.
Id. The appellate court then proceeds, after a full examination of all the
proceedings, to decide whether the case is wholly frivolous.

Id.

Here, defendant has filed a pro se supplemental brief and an addendum to

that brief raising the following issues: (1) the government violated 18 U.S.C.
201(c)(2) by making promises to witnesses Washington and McDonald in
exchange for their testimony; (2) the government denied defendant due process by
knowingly eliciting perjured testimony from witnesses Washington and
McDonald; (3) the district court erred in relying on perjured testimony regarding
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the drug amounts and in assuming the cocaine was crack; (4) the district court
erred in enhancing his sentence for being an organizer or leader of the conspiracy
and for obstructing justice; (5) the district court erred in failing to reduce his
sentence for acceptance of responsibility; (6) the evidence was not sufficient to
convict him for mail fraud; (7) his Fifth and Sixth Amendment rights were
violated by the testimony of a fellow prisoner regarding statements made by
defendant; and (8) his due process rights were violated by his life sentence on the
conspiracy count because the quantity and type of cocaine were elements of the
offense which should have been determined by the jury beyond a reasonable
doubt, citing Jones v. United States , 119 S. Ct. 1215 (1999). Each of these issues
will be addressed.
Defendants first issue is foreclosed by our en banc opinion in
States v. Singleton , 165 F.3d 1297, 1298 (10th Cir.),

United

cert. denied , 119 S. Ct. 2371

(1999), in which we held that 18 U.S.C. 201(c)(2) does not apply to the United
States or an Assistant United States Attorney functioning within the official scope
of the office. This decision leaves no room for argument on the issue.
Defendants argument regarding the governments knowing use of perjured
testimony is frivolous. His only basis for showing that the testimony was false
and that the government knew of its falsity is that he could not have participated
in cocaine sales in Pueblo in April 1995 because he was attending school in
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Grand Junction during that period. Defendants school enrollment did not
foreclose his presence in Pueblo, however. In addition, witness McDonald only
approximated the time that the Pueblo sales took place, stating it was around
April, and explaining that even when defendant was enrolled in school, he came
home on weekends. R., Vol. 9 at 265, 297. There is no showing, therefore, that
the witnesses testimony was false or that the government knowingly presented
false testimony.
The argument that the district court relied on perjured testimony to
determine the quantity of drugs distributed during the conspiracy is also
completely without merit. The courts factual findings as to drug quantities are
reviewed for clear error.

See United States v. Wacker , 72 F.3d 1453, 1477

(10th Cir. 1996), as modified on denial of rehg . Here, contrary to defendants

allegations, the district court did not simply rely on witness McDonalds
testimony regarding his trip to Chicago for a kilogram of cocaine, but also upon
his testimony that defendant sold at least a half a kilogram of crack cocaine in
Pueblo, and upon testimony by federal agent Thomasson that his investigation and
interviews revealed that at least thirty-six kilograms of crack cocaine were
distributed through defendants network.

See R., Vol. 9 at 267-68 (witness

McDonalds estimate of crack cocaine sold in Pueblo); Vol. 12 at 33-37 (agent

Thomassons testimony regarding thirty-six kilograms); Vol. 15 at 6-8 (district
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courts finding beyond a reasonable doubt that defendant distributed more than
1.5 kilograms). Further, this testimony was corroborated in numerous respects, by
the length of the conspiracy, the number of individuals working for defendant
distributing crack cocaine, and the cross-corroborating witness interviews.
Moreover, there was no error in determining the substance distributed by
defendant was crack cocaine rather than powder. With the exception of one sale
of cocaine powder, crack cocaine was the subject of all the controlled buys, the
testimony by witnesses McDonald and Washington, and the information gathered
by federal agents. The evidence was overwhelming that defendant distributed
crack cocaine, and his challenge to this finding is frivolous.
So too, defendants challenges to the courts findings that he was an
organizer or leader of the conspiracy, and that he obstructed justice, are specious.
The evidence shows that defendant was the governor of the Gangster Disciples, a
criminal organization through which he purchased and distributed cocaine, that he
financed the initial startup of the distribution network through a fraudulent
insurance claim, that he had at least ten people working for him cooking and
distributing crack cocaine, and that he received a portion of all the proceeds from
these sales. See id. ,Vol. 12 at 23-32 (Agent Thomasson); Vol. 14 at 141-42,
145-47 (Washington); see also Vol. 8 at 98-103, 105, 110-11, 114, 123-24
(Washington); Vol. 9 at 260-64, 268-70, 277, 285 (McDonald). The evidence of
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obstruction is equally as strong. Defendant was shown to have planned to kill

a police officer in retaliation for executing a search of a Colorado Springs
residence, including taking the concrete steps of obtaining a weapon and several
cameras for counter surveillance.

See id. , Vol. 14 at 52-58. He was shown to

have been involved in a second obstruction plot as well, soliciting a Pueblo

County jailmate to kill witness Washington.

See id. at 59-61, 84-85.

There is no merit to defendants argument regarding the sufficiency of the

evidence to support his mail fraud conviction. A defendant claiming
insufficiency of the evidence faces a high hurdle.

United States v. Voss ,

82 F.3d 1521, 1524 (10th Cir. 1996). Such a claim is reviewed de novo, asking
only whether, taking the evidence--both direct and circumstantial, together with
the reasonable inferences to be drawn therefrom--in the light most favorable to
the government, a reasonable jury could find the defendant guilty beyond a
reasonable doubt.

Id. at 1524-25 (quotations omitted).

Here, in addition to testimony that defendant admitted filing a fraudulent

insurance claim, there was evidence that the underlying accident was minor, that
defendant admitted he was unemployed at that time, that he misrepresented the
nature of an insurance form to the person he later alleged was his employer, and
that he submitted a false lost wages claim through the mails for more than five

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thousand dollars.

See R., Vol. 9 at 189-90, 213-19, 285; Vol. 12 at 30-31. This

is more than enough evidence to support the jurys guilty verdict.

Defendants argument that it was error to make him choose between
exercising his constitutional right to trial and receiving a two-point reduction for
acceptance of responsibility is also frivolous.

See United States v. Davis , 1 F.3d

1014, 1018 (10th Cir. 1993) (holding U.S. Sentencing Guideline 3E1.1 did not
unconstitutionally penalize exercise of right to trial);

United States v. Trujillo ,

906 F.2d 1456, 1461 (10th Cir. 1990) (holding denial of sentence reduction under
3E1.1 did not impermissibly penalize exercise of constitutional rights).
Although the commentary to 3E1.1 states that the downward adjustment is not
intended to apply to a defendant who puts the government to its burden of proof
at trial by denying the essential factual elements of guilt, is convicted, and only
then admits guilt and expresses remorse, the commentary clarifies that [i]n rare
situations a defendant may clearly demonstrate an acceptance of responsibility for
his criminal conduct even though he exercises his constitutional right to a trial.
U.S. Sentencing Guidelines Manual 3E1.1, commentary n.2. Thus defendants
exercise of his right to trial was not unconstitutionally penalized.
Defendant also argues he should have been given the two-point reduction
based on his treatment for cocaine addiction. The district courts determination
of acceptance of responsibility is a question of fact reviewed only for clear error.
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See United States v. Janus Indus. , 48 F.3d 1548, 1560 (10th Cir. 1995). The
guidelines caution that the sentencing judges determination on this issue is
entitled to great deference. U.S. Sentencing Guidelines Manual 3E1.1,
commentary n.5. Here, defendant denied, and continues to deny, participating in
the large scale cocaine distribution conspiracy for which he was convicted. Even
now he refuses to admit his role in the distribution network, claiming instead that
the witnesses lied and the prosecution suppressed evidence of his innocence. Far
from admitting responsibility, defendant has taken extraordinary steps to impede
the governments investigation and prosecution of these crimes, including two
different schemes to murder an investigating law enforcement officer and a
witness. There is no question, therefore, that the district court did not err in
refusing to grant the two-point reduction for acceptance of responsibility.
Defendants argument that the government violated his constitutional rights
by placing witness Eddy in his jail living quarters is specious. Contrary to
defendants allegations, Agent Thomasson made it clear that although he was
unsure exactly when witness Eddy contacted the government with his information,
it was after Eddy and defendant had been placed in the same living quarters, and
that Eddy contacted the government regarding defendants plan to kill a witness
on his own initiative.

See R., Vol. 14 at 75-78. Eddy himself confirmed this,

explaining that he had been returned to jail for violating his probation in March
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1997, that there was no investigative purpose for his placement in defendants
living quarters, and that he initiated contact with the federal agents.

See id. at

81-86. There is no evidence that Eddy was placed in defendants living quarters
by the government to elicit incriminating statements from defendant.
Similarly, the governments request that Eddy record further details of the
plot to kill a witness did not violate defendants Sixth Amendment right to
counsel because Eddy was not a government agent. Both Eddy and Agent
Thomasson testified that no promises were made to Eddy to encourage his
conduct. See R., Vol. 14 at 60-61; 85-86. The later agreement to inform Eddys
probation officer of his cooperation if he testified truthfully had nothing to do
with his conversation with defendant while incarcerated.

See id. , Vol. 11 at 2-3.

In the absence of a quid pro quo relationship when the conversation occurred,
Eddy was not operating as a government agent, and defendants Sixth Amendment
rights were not implicated.

See United States v. Taylor , 800 F.2d 1012, 1016

(10th Cir. 1986) (holding in the absence of a quid pro quo relationship between
government and informant who shared cell with defendant, informants testimony
regarding defendants incriminating statements did not violate his constitutional
rights).
Finally, defendant has not raised an arguable issue as to whether his
constitutional rights were violated by the failure to submit the issues of drug
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quantity and type to the jury for a determination beyond a reasonable doubt.
Because defendant did not make this argument to the district court, he must
demonstrate that it was plain error not to submit these issues to the jury.

See

United States v. Olano , 507 U.S. 725, 731-32 (1993). To meet this standard,
defendant must show that the district court committed (1) an error, (2) that was
clear or obvious, and (3) that affected his substantial rights.

See id. at 732, 734.

Such an error requires reversal only when it seriously affects the fairness,
integrity, or public reputation of [the] judicial proceedings.

Id. at 732

(quotations omitted).
Based on our recent decision in

United States v. Jones , Nos. 97-1377 &

97-1463, 1999 WL 1029120, at *6-*7 (10th Cir. Nov. 12, 1999), defendant cannot
show that the district court committed an error, much less a clear or obvious error.
In Jones , we held that the Supreme Courts decision did not require reexamination
of our prior cases holding that the penalty provisions of 21 U.S.C. 841(b) are
not elements of the crime and thus need not be submitted to a jury.
Our position on this issue was summarized in

See id. at *7.

United States v. Silvers , 84 F.3d

1317 (10th Cir. 1996), as follows:

Our cases make clear not only that the mandatory minima prescribed
in 21 U.S.C. 841(b)(1)(A) are not substantive offenses in
themselves, but further that the quantity of the [drug] possessed by
the defendant is not an element of the substantive offense as defined
in 21 U.S.C. 841(a). We have also held it is unnecessary for the
government to allege drug quantity in the indictment, and that even
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when the government does so, the quantity alleged does not dictate
the mandatory minimum that the court is required to impose under
21 U.S.C. 841(b). Because drug quantity is not an element of the
offense, the government is not bound to prove the quantity of drugs
beyond a reasonable doubt in order to obtain a conviction under
21 U.S.C. 841(a); rather, the government is required only to prove
the quantity of drugs attributable to the defendant by a preponderance
of the evidence at sentencing in order to trigger the mandatory
minimum sentences prescribed in 21 U.S.C. 841(b), just as the
government is required to prove such quantities by a preponderance
of the evidence to establish the defendants base offense level under
the Drug Quantity Table.
Id. at 1320 (quotations and citations omitted);

see also United States v. Easter ,

981 F.2d 1549, 1557 (10th Cir. 1992) (noting type of cocaine in 841(b) is
simply penalty factor, and not an element of cocaine trafficking offense).
Because the Supreme Court did not announce a new principle of
constitutional law, we adhered to the doctrine of stare decisis and declined to
reexamine the issue.

See Jones , 1999 WL 1029120, at *7. Defendant, therefore,

has not shown that the district court committed plain error in failing to submit the
841(b) issues to the jury.
After considering defendants brief and independently examining the
record, we conclude this appeal is in fact without merit. Accordingly, counsels
motion to withdraw is GRANTED, and defendants convictions and sentence are

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AFFIRMED. Defendants motion for release pending resolution of this appeal is

DENIED as moot. The mandate shall issue forthwith.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge

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