* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 16 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee No. 97-2153

v. D. New Mexico ULYSSES HARPER, also known as Larris Jeroy Slayton

Defendant - Appellant. (D.C. No. CR-96-220-JC)

ORDER AND JUDGMENT *

Before ANDERSON , MCKAY , and EBEL , Circuit Judges.

Ulysses Harper appeals his conviction for conspirac y to possess methamphetamine with intent to distribute and aidin g and abetting, violations of 21 U.S.C. § 846 and 18 U.S.C. § 2. Harper argues that there was insufficient proof of his involvement in the conspiracy charged in the indictment. He also argues that evidence of prior bad acts was improper ly introduced at trial, and that-2-

he was improperly refused a jury instruction on his claim that he withdrew from the conspiracy. We reject each of Harper’s claims and affirm his conviction.

I. BACKGROUND Harper’s conviction stems from drug trafficking act ivities in California and New Mexico. He was indicted for conspiracy and aid ing and abetting along with ten codefendants: Christopher Lee, Alfred Ellick, Bryant Marshall, Melanie Young, Ricardo Vera, Michael Clark, Joe Altamirano, Mary Sanchez, Burch Woody McCoy, and Kenneth Brown. Harper, Ellick, Marshall, McCoy, and Altamirano were tried together; at trial, Clark, Yo ung, and Brown testified for the government pursuant to plea agreements. At the tim e of trial, Lee and Sanchez were fugitives. Evidence at trial showed that in late 1994 or early 1995, the Drug Enforcement Agency (DEA) began receiving informatio n about a possible methamphetamine distribution ring in Roswell, New M exico. Through a series of tips and cooperative law enforcement efforts, Chris topher Lee and Harper were apprehended in San Bernardino, California on June 1 4, 1995, as they prepared to take an Amtrak train to Albuquerque. They identifi ed themselves as Christopher Lee and Larris Slaton (one of Harper’s aliases). A fter initial questioning, officers obtained Lee and Harper’s consent to search their p ersons and luggage.-3-

In their search of Harper and his luggage the offic ers discovered a giftwrapped package containing five pounds of methamphe tamine. (Harper’s fingerprint was later found on the package.) They also found a handgun, a “pay/owe” accounting sheet, $4,800 in cash, and a b lack address book. Lee and Harper each had a canister of pepper spray. Lee’s luggage contained a roll of film showing pictures of Lee and Harper. Harper’s address book listed Ellick’s phone number next to the initials “A.J.” Further investigation revealed that on this trip Harper rented a hotel room using an identification card issued to him with the address of 83 Holman in Roswell, New Mexico–Ellick’s residence. Baxter Jon es (under separate indictment) testified under a plea agreement that h e and Ellick were to receive some of the confiscated methamphetamine. Michael C lark testified that Ricardo Vera told him about the loss of the drugs. Bryant Marshall testified that he drove Lee and Harper to the train station in Albuquerque for the first leg of the trip. Lee and Harper were arrested and then released fromcustody. Harper went to Las Vegas and set up residence there. In Septem ber 1995, Harper was arrested on an unrelated charge and remained in custody in A rizona on this unrelated matter until August 5, 1996, at which time he was a rraigned on the present charge pursuant to a writ of habeas corpus ad prosequendum

.-4-

Evidence at trial showed that during Harper’s incar ceration in Arizona, investigators uncovered the methamphetamine distrib ution activities of several people with whom Harper had been involved. In Apri l 1996, Federal Express employees in Memphis, Tennessee intercepted one pou nd of methamphetamine in a package addressed to Melanie Young, a former girl friend of Harper’s, in Alamogordo, New Mexico. It had been mailed by “C.Y . Rodriquez” from “Mail Plus” in Ontario, California. Vera lived in Ontari o. On April 4, 1996, a DEA agent posing as a Federal Express employee delivere d the package while other agents surveilled the residence. Young signed for the package and the undercover agent left. Then the other agents surrounded and s earched the house pursuant to a warrant. Lee and Marshall were also at the residen ce and unsuccessfully tried to flee. Evidence recovered from the residence includ ed the package, a pistol, a book containing phone numbers for Marshall and Lee, a slip of paper with the name “C.Y. Rodriquez” and the phone number of Vera, and photographs of Harper and Lee. Officers also found two letters fr om Harper to Young, sent from jail in Arizona, dated February and March 1996. After the events at Young’s residence, DEA agents i nterviewed Christopher Lee. Lee cooperated with the agents and on May 1, 1996, he gave his pager to Agent Steven Woodson. Later that day, Woodson rece ived pages from Vera and Altamirano. Woodson then began posing as one of Le e’s distributors. He spoke-5-

with Vera by telephone and arranged a methamphetami ne purchase. DEA agents wired over $2,000 to Vera and Clark, and Clark deli vered six ounces of methamphetamine to undercover DEA agents in Roswell , New Mexico on June 6,
1996. After receiving Altamirano’s page, Agent Woodson ca lled him to arrange an undercover drug purchase. Altamirano asked agents to wire money to him (in Burch Woody McCoy’s name) in Ontario, California, a s a show of good faith. They wired at least $900, and Altamirano confirmed receipt of the money, promising a delivery in Albuquerque, where Altamirano claimed to have other distributors. On June 14, 1996, Altamirano, Brown, Sanchez, and McCoy met with Woodson and other DEA agents in Albuquerque, and delivered methamphetamine in exchange for $2000. All four we re then arrested. In the meantime, on May 30, 1996, DEA agents and ot her law enforcement officers executed a search warrant at Ellick’s resi dence in Roswell. During the search, Ellick spoke with Agent Steven Woodson for about an hour. According to Woodson’s testimony, Ellick admitted to being invol ved with Christopher Lee and others in the distribution of methamphetamine. He told Woodson he had traveled four or five times between California and Roswell d elivering methamphetamine. Officers executing the search warrant found physica l evidence of drug trafficking. They found a handwritten transaction record detailing exchanges of-6-

“grams” placed in “bags” for dollar amounts, involv ing “Mr. E,” “Mr. P,” and “Marshall.” (Christopher Lee used “Pimp” as a nickname.) For example, “In California, Mr. E. gave Mr. P. $1,000 in $100 bills for the balance of Monday, January 15, 1996, pickup of 12 grams.” Trial Trans cript (Tr.) at 355. One entry denotes a $3,400 transfer from “Mr. E” to “Mr. P.” Id. Officers obtained telephone records for Ellick’s residence documentin g phone calls to Ricardo Vera’s pager, as well as a $3,240 cellular telephon e bill. They also found a handgun. These officers also uncovered evidence linking Harp er to Ellick. They found a receipt in the name of Larris Slaton (one o f Harper’s aliases), as well as a photograph of Harper matching one found in Young’s residence. They found a handwritten letter from Ellick to a state judge on behalf of Harper, stating “Ulysses has lived with me and my family for the la st four years. He has been a positive influence on us all.” Tr. at 352. They a lso found a piece of paper with Harper’s Arizona jail address. At trial the government presented other evidence li nking Harper to the activities of his codefendants, both before and dur ing his incarceration. There was evidence of a wire transfer of $899 from Lee to Harper in December 1994, as well as transfers from Ellick to Vera, Marshall to Vera, and Vera to Altamirano. Some-7-

of these transfers were sent from or received at th e address of 83 Holman in Roswell, New Mexico–the same address found on Harpe r’s ID card. There was also testimony from Clark, testifying und er a plea agreement, that he knew Harper as one of a number of people wh o had traveled to California and stayed at Vera’s home in Ontario, people to who m Vera sold drugs, whom Vera called “big money.” Tr. at 409. Clark testif ied that these people included not only Harper but Lee, Ellick, and Marshall. He testified that Altamirano and Vera worked together selling drugs. He testified that after Vera and Altamirano had a fist fight over a drug deal, Vera said that h e would be glad when Harper got out of jail “because [Harper] didn’t do business li ke that.” Tr. at 413. The government presented a letter from Harper to Le e dated January 20, 1996, sent from jail in Arizona. The letter said, “I want you to send that money to Melanie as soon as you can get this,” and gave Youn g’s address in Alamogordo. “Thank you, Boy. You don’t know how glad I am to h ear from you and to know that you are taking carry [sic] of my affairs.” Tr . at 579. In his letters to Young, Harper stated that he would no longer be selling drugs, and repeatedly told Young to stay away from drugs. Baxter Jones (under separate indictment) testified under a plea agreement that Young introduced him to Harper “[b]ecause she knew we both sold drugs, and she thought it would be making a connection.” Tr. at 251-52. He described-8-

Harper as the “brains of the group,” Tr. at 260, an d Harper and Lee as “drug partners,” Tr. at 252. He identified Harper as on e of his sources of methamphetamine for resale, and stated that he and Harper had discussed the loss of methamphetamine in San Bernardino. Melanie Young testified pursuant to a plea agreement that Harper had introduced her to Lee, that Harper and Lee dealt dr ugs, and that Harper told Lee to give her some money. She related that Marshall had visited Harper in jail in Arizona. She stated that she had taken Harper’s ad dress book from Marshall’s house. Young also testified that she had gone to Californi a in 1994 to pick up 27 ounces of rock cocaine, and that she was supposed t o deliver the cocaine to Harper, but that someone broke into her motel room, choked her, put a gun to her head, and took the cocaine. In closing statements the prosecutor argued this evidence to the jury, stating of Harper, “he didn’tmind sending her [Young] to California with a load of drugs where she got beat up and pistol whipped.” Tr. at
887. At the close of trial, Harper’s attorney submitted a jury instruction on his claim that he withdrew from the conspiracy, and the government also sought to submit such an instruction. The court determined that there was “not enough evidence of a withdrawal from the conspiracy to go to the jury.” Tr. at 802.-9-

However, upon request the court allowed Harper’s attorney to argue withdrawal to the jury. The jury found Harper guilty of conspiracy and he w as later sentenced to 210 months imprisonment.

II. DISCUSSION A. Sufficiency of the Evidence Harper appeals the district court's denial of his m otion for a judgment of acquittal for insufficiency of the evidence. In co nsidering this claim, we review the record de novo , United States v. Chavez-Palacios , 30 F.3d 1290, 1294 (10th Cir. 1994), viewing "the direct and circumstantial evidence, along with reasonable inferences therefrom, . . . in a light most favorab le to the government," United States v. Mains , 33 F.3d 1222, 1227 (10th Cir. 1994). We will uph old the denial of a motion for acquittal based on insufficiency of the evidence if “ anyrational trier of fact could have found the essential elemen ts of the crime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319 (1979). Harper argues that there was insufficient evidence to show that he conspired to possess the five pounds of methamphetamine he was carrying when he was arrested. In the alternative, he argues that even if he conspired with Mr. Lee, he did not conspire with any of the other defe ndants because his activities-10-

were not interdependent with theirs. The elements of conspiracy are “(1) agreement with another person to violate the law; ( 2) knowledge of the essential objectives of the conspiracy; (3) knowing and voluntary involvement; and (4) interdependence among the alleged coconspirators.” United States v. Edwards , 69 F.3d 419, 430 (10th Cir. 1995). The government nee d not provide direct evidence of agreement, because “a jury may infer an agreemen t constituting a conspiracy from the acts of the parties and other circumstanti al evidence indicating concert of action for the accomplishment of a common purpos e.” United States v. Bell , 154 F.3d 1205, 1208 (10th Cir. 1998). There is abundant evidence that, at the very least, Harper conspired with Lee to possess and distribute the five pounds in hi s luggage. They were arrested together in a train station, traveling together on a route identified by the DEA as a possible drug distribution route. Each was carryin g a canister of pepper spray. Baxter Jones testified that the two were “drug partners,” that they had supplied him with between four and ten pounds of methamphetamine, and that Lee lived with Harper when Harper was selling Jones drugs. M elanie Young testified that Harper had introduced her to Lee, that Harper and L ee had lived together for a time, and that both Harper and Lee dealt drugs. On these facts, the jury reasonably concluded that Harper and Lee knowingly agreed to possess the five pounds in Harper’s luggage and that they intended t o distribute it.-11-

Harper argues that even if he did conspire with Lee as to the five pounds, there is no evidence that he conspired with other p ersons named in the indictment, and his activities were not interdependent with the irs. We disagree. “Interdependence exists where each coconspirator[’] s activities constituted essential and integral steps toward the realizationof a common, illicit goal.” Edwards , 69 F.3d at 432. Harper’s activities were an inte gral part of the conspiracy charged. Baxter Jones testified that he and Alfred Ellick expected to get a portion of the five pounds confiscated from H arper. He testified that Young introduced him to Harper because both sold drugs. Clark named Harper, Lee, Ellick, and Marshall as the persons whom Vera referred to as “big money,” and testified that Vera mentioned looking forward to re suming dealings with Harper when Harper got out of jail. Jones testified that Bryant Marshall was Lee and Harper’s “flunky,” and that when Jones dealt with H arper, Marshall “was just always there, always around.” Tr. at 256-57. He f urther testified that Young gave him rides to pick up drugs from Harper. He ch aracterized Harper as the “brains of the group.” Tr. at 260. This evidence was sufficient to show that Harper dealt directly with Ellick, Marshall, Young, Vera, and Clark, as well as with Lee. The jury could reasonably conclude that Vera (with the aid of Clark) supplied drugs to Harper, who, with the aid of Youn g and Marshall, sold them to Ellick and Jones, among others.-12-

Furthermore, even though there was little or no evi dence at trial of direct dealings between Harper and McCoy, Altamirano, Sanc hez, and Brown, Harper was shown to be part of one branch of what he must have known to be an extensive operation with multiple branches. “Where large quantities of narcotics are being distributed, each major buyer may be pres umed to know that he is part of a wide-ranging venture, the success of which dep ends on performance by others whose identity he may not even know.” Unite d States v. Watson , 594 F.2d 1330, 1340 (10th Cir. 1979). On the facts here, a jury could reasonably conclude that Harper’s handling of large quantities of methamphetamine was essential to the large-scale operation run by Vera and Altamiran o, which included all the persons named in Count I of the indictment.

B. Refusal to Give Jury Instruction on Withdrawal Harper contends that the district court erred in re fusing to give a jury instruction on his claim of withdrawal from the con spiracy, and that we should review that refusal de novo . Harper has not complied with Tenth Circuit Rule 28.2(c), which requires that when an appeal “is bas ed upon . . . the giving or refusal to give a particular jury instruction,” an appellant must include in his opening brief “a statement as to where a proper obj ection and the court’s ruling thereon may be found in the record.” Our review of the record leads us to1

You know that I have changed my life, and I think a nd know for the better. I will not be selling drugs and any of the other il legal activity at all, so I guess I will be getting a job, two or three, so don ’t feel bad about working. . . . I have learned don’t take the easy way out, b ut when you work hard for something you appreciate it more, and you have it l onger. Tr. at 774. -13- conclude that Harper’s counsel did not make a prope r objection. When the court refused to give an instruction on withdrawal, couns el for Harper asked only if he could argue withdrawal to the jury. Tr. at 802-03. Federal Rule of Criminal Procedure 30 requires that objections to the failur e to give a jury instruction must be made by “stating distinctly the matter to which that party objects and the grounds of the objection.” We see no such distinctstatement in counsel’s remarks, and we therefore review only for plain err or. See, e.g. , United States v. Smith , 13 F.3d 1421, 1424 (10th Cir. 1994). In order to show plain error, Harper must identify an obvious error that not only affected his substantial rights but “seriouslyaffected the integrity of his judicial proceedings.” Bell , 154 F.3d at 1209. We see no such error here beca use the evidence of Harper’s withdrawal was both scant and contradicted. Although Harper made a statement in a letter to Young, an in dicted coconspirator, to the effect that he would not be selling drugs anymore, 1 there was also testimony that while Harper was in jail he continued contact with coconspirators and that he directed their actions from inside prison. An instruction from the court on-14-

withdrawal might have aided the jury in evaluating this conflicting evidence. However, the failure to give such an instruction wa s not plain error. Even assuming some error, the court’s refusal to gi ven an instruction on withdrawal was partly offset by the fact that the c ourt allowed Harper’s counsel to argue withdrawal to the jury. More conclusively, e ven if an instruction had been given and had led the jury to accept Harper’s withd rawal argument, the jury could still have found him guilty of the charged conspira cy. A person who withdraws from a conspiracy nevertheless is responsible for h is own acts and those of his coconspirators prior to withdrawal. See United States v. Gonzalez , 797 F.2d 915, 916-17 (10th Cir. 1986). In that case, Harper’s se ntence would likely have been the same, because he was actually sentenced based o nly on the five pounds confiscated before his alleged withdrawal. In thes e circumstances, Harper’s substantial rights were not affected and the integr ity of the proceedings was not compromised.

C. Prior Bad Acts Evidence Harper appeals the denial of his motion for a new t rial. He contends that the admission of Young’s testimony regarding her tr ip to California to bring him cocaine was improper evidence of prior bad acts andshould have been excluded. Harper did not object to the evidence at trial and therefore we review its-15-

admission only for plain error. See United States v. Wilson , 107 F.3d 774, 782 (10th Cir. 1997). Harper must show that the admiss ion of the evidence was an obvious error that “placed the underlying fairness of the entire trial in doubt” or that “affected one of [his] substantial rights.” U nited States v. Hill , 60 F.3d 672, 675 (10th Cir. 1995). We do not see an error of such magnitude. Even wit hout Young’s testimony, there was already evidence that Harper h ad previously dealt drugs; in fact, in his closing argument Harper’s attorney con ceded as much. He stated, “I’m not going to tell you he [Harper] wasn’t–hasn’ t been a drug dealer in his past. I think the evidence shows he has.” Tr. at 870. In the context of the entire trial and in light of these statements by counsel, Young’s testimony regarding Harper’s procurement of cocaine did not affect Harp er’s substantial rights and did not render the trial fundamentally unfair. Harper further argues that the prosecutor’s referen ce during closing arguments to Young’s statements constituted miscond uct. Because Harper did not object at trial to the prosecutor’s statements, we review only for plain error. United States v. Lonedog , 929 F.2d 568, 570 (10th Cir. 1991). Again, the evidence against Harper was extensive and the fact of his drug dealing wellestablished. In addition, Harper did not object in the first place to the testimony to which the prosecutor referred. There is no plai n error on this record.-16-

For the foregoing reasons, we AFFIRM.
ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge