UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JIMMY RAY PETTIT, a/k/a Black, Defendant - Appellant. No. 13-7015 (D.C. No. 6:11-CR-00048-JHP-13) (E.D. Okla.)

ORDER AND JUDGMENT *

Before KELLY , ANDERSON , and MATHESON , Circuit Judges.

Jimmy Ray Pettit appeal s his jury conviction and 135-month sentence for conspiracy to possess with intent to dist ribute 500 grams or mo re of a mixture or substance containing a dete ctable amount of methamphe tamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii), and 846. We exercise jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) and affirm.

* After examining the briefs and appella te record, this pa nel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### March 3, 2014
Elisabeth A. Shumaker Clerk of Court- 2 - I. BACKGROUND Pettit and thirteen others were charge d in a one-count conspi racy indictment. The object of the conspiracy charged was to “knowingly and intentionally distribute and possess with intent to distribute 500 gr ams or more of a mixture or substance containing a detectable amount of meth amphetamine, a Schedule II controlled substance.” R. Vol. 1 at 12. The other de fendants pleaded guilty; Pe ttit went to trial. A jury convicted him of the conspiracy ch arge and returned a special verdict finding the amount involved in the conspiracy to be in excess of 500 grams of a mixture containing methamphetamine. Id. at 124. Viewing the trial evidence in the li ght most favorable to the government, see United States v. Cornelius , 696 F.3d 1307, 1316 (10th Cir. 2012), the evidence established that Patrick Springwater h eaded an organization for distributing methamphetamine in northeaste rn Oklahoma. Springwater usually fronted the drugs to his distributors who would pay hi m after they had sold the drugs. Springwater’s sole source of supply du ring 2010 (and, perhaps, during 2009), and through the latter part of March 2011, was an Arkansas resident named Jose Ramirez-Mendoza. To obtain supplies of methamphetami ne from Ramirez-Mendoza, members of Springwater’s organization, or Springwater himself, would drive to Arkansas, usually twice a month, to pick up pound or kilogram amounts. However, in December 2010, Springwater was stopped in Arkansas by government agents, who seized one pound of methamphetamine from Springwater’s car. Then, toward the end of March 2011, officers in Arkansas sei zed a kilogram of methamphetamine from a- 3 - car driven by members of Springwater’s organi zation. At that point, Springwater felt he could not immediately return to Ramirez-Mendoza for supply because Ramirez-Mendoza had not been paid for the drugs that had been seized. Instead, Springwater asked his distributors if they knew of any alternative source. One of those distributors, Walter “Mick” Pettit, st ated that his Uncle Jim (the defendant, Jimmy Ray Pettit) might get a supply for him. In April 2011, Pettit supplied two hal f-pound deliveries of methamphetamine to Springwater. Springwater paid Pettit $8, 000 for the first delivery, and $7,000 for
the second. The first batc h was “brown” methamphetamine , which did not sell well, but the second batch was of better-qua lity “white” methamphe tamine and it sold better. Pettit and Springwater were pl anning a third deliver y of one pound of methamphetamine when Springwat er was arrested. Springwat er testified that he had intended to return to Rami rez-Mendoza as his supplier, although he did not explain what had changed relative to his unpaid de bt to Ramirez-Mendoza that would permit him to do so. II. CONSPIRACY CONVICTION Pettit challenges the sufficiency of th e evidence to sustain his conviction for conspiracy. “To obtain a conspiracy convic tion, the government must prove: (1) an agreement by two or more persons to violat e the law; (2) knowled ge of the objectives of the conspiracy; (3) know ing and voluntary involvement in the conspiracy; and (4) interdependence among co-conspirators.” United States v. Foy , 641 F.3d 455, 465 (10th Cir. 2011). Where, as here, a defendant is char ged with a certain quantity- 4 - of drugs, “that quantity of drugs becomes an element of the char ged offense if the quantity triggers a sentence beyond the maxi mum allowed for violation of the base § 841(a)(1) offense.” United States v. Montgomery , 468 F.3d 715, 719 (10th Cir. 2006). Pettit asserts that the evidence of interdependence and drug quantity was insufficient to sustain his conviction. “We review the record de novo in su fficiency-of-the-evidence challenges to criminal jury verdicts, aski ng if, viewing the evidence in the light most favorable to the government, a reasonable jury could have found th e defendant guilty beyond a reasonable doubt.” Cornelius , 696 F.3d at 1316 (interna l quotation marks omitted). We consider “both direct and circumstanti al evidence, and all reasonable inferences therefrom, in the li ght most favorable to the government.” United States v. Acosta-Gallardo , 656 F.3d 1109, 1123 (10th Cir. 2011) (internal quotation marks omitted). “Under this standard, we will not reverse a convic tion unless no rational trier of fact could have reach ed the disputed verdict.” United States v. Pulido-Jacobo , 377 F.3d 1124, 1129 (10th Cir. 2004) (brackets, ellipsis, and internal quotation marks omitted). This court will not weigh th e evidence or disturb the jury’s credibility determinations. Acosta-Gallardo , 656 F.3d at 1123. “Because secrecy and concealment are essential feat ures of successful conspiracy, direct evidence of conspiracy is often hard to co me by. Therefore, c onspiracy convictions may be based on circumstantial evidence, a nd the jury may infer conspiracy from the defendants’ conduct and other circumstanti al evidence indicating coordination and- 5 - concert of action.” United States v. Dazey , 403 F.3d 1147, 1159 (10th Cir. 2005) (citation, brackets, and internal quotation marks omitted). A. Interdependence “A defendant’s activities ar e interdependent if they f acilitated the endeavors of other alleged conspirato rs or facilitated the venture as a whole.” United States v. Ivy , 83 F.3d 1266, 1286 (10th Cir. 1996) (i nternal quotation marks omitted). The government must submit “proof that the conspirators intended to act together for their shared mutual benefit within the scope of the conspiracy charged.” United States v. Hamilton , 587 F.3d 1199, 1208 (10th Cir. 2009) (internal quotation marks omitted). Pettit argues that interdependence was not proved because the government failed to show a common goa l between him and his cocons pirators. He contends (1) the evidence demonstrated that he ma de only $20 on the sa les of drugs worth $15,000, so he was not motivated by profit; (2) the evidence did not show that he was motivated to gain access to dr ugs or to accept drugs as payment; (3) the evidence did not demonstrate that the conspiracy need ed or depended on his participation to survive; and (4) he was involved for only two sales, while the conspiracy spanned two years, and his role was relatively mi nor given that he pr ovided only a pound of methamphetamine to an organization that generally sold two pounds a month. Even if Pettit had been a “financially selfless conspirator, ” he would not be “categorically exclude[d] from conspiracy liability.” Id. at 1210 n.6. But the evidence demonstrated that Pettit did profit from the sales. He ad mits to receipt of- 6 - $20, and Springwater testified that he paid Pettit with an “8-ball,” or 3.5 grams of methamphetamine, worth $300. Moreover, a reasonable jury could have concluded that Pettit was motivated, at least in part, to help his nephew, who pers onally introduced Spri ngwater to Pettit and who was present during the drug deliveries. See id. at 1210 & n.6 (rejecting defendant’s claim that he did not personally profit fina ncially from furthering his brother’s illegal drug organiza tion; stating assistance ar ising from “a familial sense of loyalty and obligation,” did not imm unize defendant from prosecution as a drug conspirator). In addition, the evidence supported a ju ry finding that the conspiracy depended on Pettit’s supply of drugs. It is undisputed that Spri ngwater purchased drugs from Pettit because he could not obtain a supply from Ramirez-Mendoza. “[T]his evidence alone shows that [Petti t] facilitated the actions of the venture as a whole . . . [and he] was plainly integral to the success of the operation.” United States v. Hutchinson , 573 F.3d 1011, 1036 (10th Cir. 2009); see also Ivy , 83 F.3d at 1286-87 (holding interdependence was shown by fact that one co conspirator received the majority of his supply from another cocons pirator and held a prominent position in the supplier’s organization). Pettit cites no authority to support his argument th at his relatively short involvement with the conspi racy precluded a finding of interdependence. We also reject his claim that his relationship with Springwater was merely that of a buyer and seller, not of coconspi rators. He relies on United States v. McIntyre , 836 F.2d 467,- 7 - 471 (10th Cir. 1987), for the pr oposition that “proof of the existence of a buyer-seller relationship, without more, is inadequate to tie the buyer to a larger conspiracy.” But the buyer-seller rule does not apply wh ere “each co-conspira tor’s activities constituted essential and inte gral steps toward the real ization of a common, illicit goal.” United States v. Fox , 902 F.2d 1508, 1514 (10th Cir. 1990) (internal quotation marks omitted). Here, the ev idence was sufficient for a r easonable jury to find that Pettit provided large quantities of meth amphetamine to be distributed by Springwater’s organization. Thus, the evid ence supports a conclusion that Pettit “did knowingly join and participate in th e [methamphetamine] conspiracy.” Id. at 1516. We therefore conclude that the evidence was sufficient to prove interdependence. B. Drug Quantity We turn to Pettit’s claim that the evidence wa s insufficient to prove that he was involved with more than 500 grams of a substance containi ng methamphetamine. He contends that only the two drug sales to Springwater can be counted, conceding that the two completed drug sales to Springwater involv ed 426.5 grams. It is undisputed that including th e additional pound of methamphe tamine contemplated in the third sale put the total attributable to Pettit well over the 500 grams for which he was convicted. He argues that the planne d third sale for an additional pound of methamphetamine could not be included in the amount of drugs attributable to him because it was not an order, Springwater did not intend to buy from him again, there was no agreement to buy more, and Springwat er stated that Pettit would not be involved further in the conspiracy.- 8 - “Conspiracy is an inchoate offense, th e essence of which is an agreement to commit an unlawful act.” United States v. Shabani , 513 U.S. 10, 16 (1994) (internal quotation marks omitted). It is well-established that the in choate crime of conspiracy punishes the agreement to commit an unlawful act, ra ther than the completed criminal act. See United States v. Jimenez Recio , 537 U.S. 270, 274 (2003). Therefore, the crime of conspiracy “may exist and be punished whether or not the substantive crim e ensues.” Id. (internal quotation marks omitted). And even “[w]here police have frustrate d a conspiracy’s specific obj ective but conspirators . . . have neither abandoned the conspiracy nor withdrawn, the[] special conspiracyrelated dangers remain, [as does] the esse nce of the conspiracy—the agreement to commit the crime.” Id. at 275. Pettit was convicted of violating 21 U.S.C. § 846, which provides that any pers on who “conspires to commit a ny offense defined in [the subchapter addressing controlle d substances] shall be subjec t to the same penalties as those prescribed for the offense” that was the object of the conspiracy. Springwater testified that he probabl y would have purchased the additional pound of methamphetamine fr om Pettit “if the quality was good.” R. Vol. 2 at 180-81. He further stated that if he had not been arrested, he would have continued to sell drugs. Id. at 181. Pettit points to no ev idence that he would have been unwilling or unable to provide the additi onal pound. And although he argues on appeal that Springwater would have gone b ack to his previous supplier instead of buying the additional pound from him, Pet tit offers no evidence that this was a- 9 - realistic alternative fo r Springwater, given that the debt to the supplier preventing his return had apparently not been paid. “The fact that [Pettit] previously deal t drugs with [Springw ater] helps establish the basis of the relationship between th em and his intent to do the same.” United States v. Brooks , 736 F.3d 921, 940 ( 10th Cir. 2013) (discussing evidence of defendant’s prior bad acts), petition for cert. filed (U.S. Jan. 27, 20 14) (No. 13-8505). Based on the evidence adduced at trial, a r easonable jury could ha ve concluded that Pettit was ready to supply th e additional pound and that Sp ringwater could not have obtained a supply of drugs fro m his previous supplier. This evidence, added to Springwater’s testimony concerning his inte ntion to purchase the additional pound of methamphetamine from Pettit, was sufficient to permit a reasonable jury to find beyond a reasonable doubt that Pettit and Springwater had agreed to further violate the law by distributing an additional one po und of methamphetamine. As a result, the drug-quantity element of the offens e of conviction was established. III. EVIDENTIARY HARPOON Next, Pettit alleges prosecutorial misc onduct in the form of an “evidentiary harpoon.” This is “a metaphor ical term used to describe an attempt by a government witness to deliberately offe r inadmissible testimony for the purpose of prejudicing the defendant.” United States v. Cavely , 318 F.3d 987, 996 n.2 ( 10th Cir. 2003). He asserts that the prosecutor improperly elic ited from Matthew Nile s, a special agent for the Drug Enforcement Agency , the fact that Pe ttit was at the probation and parole office when he was administered the Miranda warnings. Pettit’s counsel- 10 - immediately objected. The district cour t then took a recess and addressed the objection outside the presence of the jury . Defense counsel explained that he objected to informing the ju ry that Pettit was on prob ation at the time he was interviewed for this case. Counsel also moved for a mistrial for violating Pettit’s right not to have his criminal history reveal ed to the jury. The prosecutor stated that Agent Niles’s answer was not what he expected. After re viewing a transcript of the challenged testimony, the cour t observed that the testimony did not register with the jury and that to give an admonition woul d compound the problem. Hence, the court overruled the objection. We evaluate a claim of prosecutorial misconduct using a two-step process: (1) whether the conduct was improper, and (2 ) if so, whether it warrants reversal of the conviction. Ivy , 83 F.3d at 1288. “[A]n allega tion of prosecutorial misconduct for which there was a contemporaneous objec tion presents a mixed question of fact and law that we review de novo .” United States v. Caballero , 277 F.3d 1235, 1242 (10th Cir. 2002). Prosecuto rial misconduct “is harmless unless there is reason to believe that it influenced the jury’s verdict, . . . consider[ing] th e trial as a whole.” Ivy , 83 F.3d at 1288 (internal quot ation marks omitted). In this case, Agent Nile s’s statement about where th e interview took place did not unambiguously convey the informa tion that Pettit was on probation. Nevertheless, assuming the comment was imprope r, we conclude that it was harmless in the context of the trial as a whole. Any misconduct was “merely singular and isolated,” rather than “fla grant enough to influence th e jury to convict on grounds- 11 - other than the evidence presented.” Id. (internal quotation mark s omitted). For the same reason, we conclude that the distri ct court did not abus e its discretion in denying the request for a mistrial. See United States v. Tolliver , 730 F.3d 1216, 1226 (10th Cir. 2013) (review ing denial of mistrial for abus e of discretion). As discussed above, there was ample evid ence to support Pettit’s convi ction and this single, ambiguous statement did not undermi ne the jury’s verdict. IV. SENTENCE The sentencing range for Pettit’s conviction was dependent, among other factors, on the quantity of drugs fo r which he was held responsible. See 21 U.S.C. § 841(b)(1)(A)(viii); USSG § 2D1.1 (2011). The statutory minimum and maximum sentences were 10 years to li fe in prison. Pettit’s se ntence under the United States Sentencing Guidelines, based on a drug quan tity of at least 500 grams but less than 1.5 kilograms of a substan ce containing methamphetamine, see USSG § 2D1.1(a)(5) and (c)(4); id. note (A) (base offense level of 32) , considering his criminal history category of II, was 135 to 168 months, see R. Vol. 3, at 11, 17. Pettit was sentenced to 135 months. Pettit argues that the district cour t erred in sentencing him based on the amount of methamphetamine trafficked by his coconspirators without making particularized findings to support the attri bution of his coconspira tors’ actions to him as relevant conduct. The district court a dopted the jury’s finding that Pettit had conspired to distribute in excess of 500 grams of a substance containing methamphetamine and sentenced him based on that amount. No relevant conduct by- 12 - coconspirators was included to increase th e drug amount. And contrary to Pettit’s claim, there is no indication that he was held responsible for drug amounts trafficked by the conspiracy before he joined. Theref ore, the district court was not required to make particularized findings of the coconspirators’ relevant conduct. Cf. United States v. Figueroa-Labrada , 720 F.3d 1258, 1264 (10th Ci r. 2013) (“A sentencing court must make particularized findings to support the attr ibution of a coconspirator’s actions to the defendant as re levant conduct, whether or not the defendant asks it to do so or disputes the attribution.”). V. CONCLUSION Pettit’s conviction and se ntence are affirmed.

Entered for the Court
Stephen H. Anderson Circuit Judge