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

### JUN 5 1998 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. ROBERT JOHNSTON,

Defendant - Appellant. No. 97-6146

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(D. Ct. No. CR-96-115-L)
Fred L. Staggs, Oklahoma City, Oklahoma, appearing for Defendant-Appellant. Timothy W. Ogilvie, Assistant U.S. Attorney (Patric k M. Ryan, U.S. Attorney, with him on the brief), Office of the United States Attorney, Oklahoma City, Oklahoma, appearing for Plaintiff-Appellee.

Before TACHA , BRORBY , and EBEL , Circuit Judges.

TACHA , Circuit Judge.

Robert Johnston was a defense attorney in Oklahoma City. Richard Jarvis, a drug dealer who previously had used Johnston for legal representation on other matters, asked Johnston to lie on Jarvis’s behalf b y telling two men to whom- 2 -

Jarvis owed drug money that Jarvis had been arreste d. The purpose of the false story was to deter the two men from making further contact with Jarvis. Johnston complied with Jarvis’s request, and Jarvis was neve r bothered again about the money he owed. Thereafter, Jarvis continued to dea l drugs. For his lies, Johnston was convicted of one count of conspiracy t o distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and th ree counts of use of a telephone to facilitate the distribution of marijua na, in violation of 21 U.S.C. § 843(b). Johnston raises four issues on appeal. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.
BACKGROUND In the fall of 1995, Drug Enforcement Administratio n agents began investigating Jarvis, whom they had identified as an Oklahoma City marijuana dealer. An Oklahoma state court order authorized t he agents to tap Jarvis’s home and business telephone lines. Two men, known only as Alex and Ramone, fronted Jarvis 200 pounds of marijuana for $110,000, meanin g Jarvis obtained the drugs on credit. Jarvis, in turn, fronted the drugs to t hree other dealers. Apparently, the drug business was slow, and Jarvis’s customers coul d not fully pay him for the drugs. In turn, Jarvis could not fully pay Alex an d Ramone the money he owed them. According to Jarvis’s testimony at trial, Al ex threatened to kill Jarvis if Jarvis did not soon pay off the balance of the debt

.- 3 -

Thereafter, Jarvis called Johnston, who previously had represented him on other non-drug related matters. Jarvis asked John ston for help in concocting a story to make it appear to Alex and Ramone that Jarvis had been arrested for dealing drugs so that they would avoid future conta ct with him. Jarvis asked Johnston to tell the story to Alex and Ramone. Joh nston agreed. He initially told Kirby Kyles, one of Jarvis’s customers, that Jarvis had been arrested, anticipating that Kyles would pass that information along to Ale x and Ramone. Kyles did tell Alex and Ramone the story. Alex and Ramone then ca me to Johnston’s office to confirm the story, and Johnston verified the canard . The DEA learned about Johnston’s involvement in the scheme through the ph one taps on Jarvis’s phones. The grand jury indicted Johnston on one count of co nspiracy to distribute marijuana, four counts of using a telephone to faci litate the distribution of marijuana, and one count of attempt to possess deca durobolin, a steroid. Before trial began, the defendant pleaded guilty to the st eroid charge. After a three-day trial, a jury returned a guilty verdict against Joh nston on the conspiracy charge and on three of the four use-of-telephone charges. He was sentenced to 26 months in prison on the conspiracy count, 26 months on each of the use-oftelephone counts, and 12 months on the steroid char ge, with all sentences running concurrently. On appeal, Johnston asserts that (1) there was insu fficient evidence to- 4 -

convict him of any of the charged counts; (2) the d istrict court committed reversible error by denying certain jury instructio ns; (3) the district court should have suppressed the intercepted phone conversations between Jarvis and Johnston because the interceptions were not made in conformi ty with the order authorizing the phone taps; and (4) the district court erred in computing the defendant’s offense level under the sentencing guidelines.
DISCUSSION I. Sufficiency of the Evidence In determining whether there is sufficient evidence to support the jury’s verdict, this court reviews the record de novo. Se e, e.g. , United States v. Wilson , 107 F.3d 774, 778 (10th Cir. 1997). Evidence is su fficient to support a conviction if, considered in the light most favorable to the g overnment, it would allow a reasonable jury to find the defendant guilty beyond a reasonable doubt. See id. In evaluating the evidence under this standard, the court will not question a jury’s credibility determinations or its conclusions aboutthe weight of the evidence.
See United States v. Johnson , 57 F.3d 968, 971 (10th Cir. 1995). A. Conspiracy Charge The defendant contends that the evidence presented at trial was insufficient as a matter of law to establish the ag reement and intent elements to the conspiracy charge. The drug conspiracy statute provides, “Any person who- 5 -

attempts or conspires to commit any offense definedin this subchapter shall be subject to the same penalties as those prescribed f or the offense, the commission of which was the object of the attempt or conspirac y.” 21 U.S.C. § 846. Johnston was convicted of conspiracy to violate 21 U.S.C. § 841(a)(1), which criminalizes the knowing or intentional distribution of marijuan a. To obtain a conviction under section 846, the government must prove that “ the defendant knew at least the essential objectives of the conspiracy and know ingly and voluntarily became a part of it.” United States v. Johnson , 42 F.3d 1312, 1319 (10th Cir. 1994). The government is not required to prove the commission of an overt act in furtherance of the conspiracy. See id. (citing United States v. Shabani , 513 U.S. 10, 11 (1994)). The jury may infer an agreement constituting a cons piracy “from the acts of the parties and other circumstantial evidence indic ating concert of action for the accomplishment of a common purpose.” Id. Furthermore, “the jury may presume that a defendant is a knowing participant in the co nspiracy when he acts in furtherance of the objective of the conspiracy.” I d. (citations and internal quotation marks omitted). The defendant’s particip ation in or connection to the conspiracy need only be slight, so long as sufficie nt evidence exists to establish the defendant’s participation beyond a reasonable d oubt. See United States v. Bowie , 892 F.2d 1494, 1497 (10th Cir. 1990). There is n o question that Jarvis- 6 -

was engaged in a conspiracy to sell marijuana. The only question is whether Johnston knowingly and intentionally entered into that conspiracy when he told Kyles and verified to Alex and Ramone that Jarvis h ad been arrested. The defendant testified at trial that he thought Ja rvis was no longer involved in the drug business, and that he only agr eed to tell the false story to help Jarvis complete his withdrawal from the conspi racy and save Jarvis’s life. There is ample evidence, however, that would allow a reasonable juror to find beyond a reasonable doubt that the defendant’s cont ention that he intended to help Jarvis withdraw was untrue, and that Johnston reall y intended to help Jarvis continue his drug business. At trial, Jarvis testi fied about a meeting between him and Johnston in which Jarvis explained to Johnston why he wanted Johnston to participate in the scheme: Q. Okay, and what did you talk about with respect to Alex and Ramone at your meeting [with Johnston] the next day ? A. I told Robert [Johnston] that Kirby and John and Glen owed me some money. They wouldn’t pay me. [Alex and Ra mone] pulled a gun on me. They were going to kill me. A nd then I come up with the scheme that I wanted to get arrest ed or let them think that I got arrested to where they would leave me alone until I could get Kirby and John and Glen to pay me. Trial Tr. at 42. In this meeting, Jarvis informed Johnston that Johnston’s lie would give Jarvis more time to collect the money th at his customers (i.e., Kirby, John, and Glen) owed him. This is a clear indicati on to Johnston that Jarvis was

notout of the drug business. The jury could believe beyond a reasonable doubt- 7 -

that Jarvis was telling the truth about this meetin g. The jury could also believe beyond a reasonable doubt that Johnston was lying w hen he testified that he thought Jarvis was out of the drug business. In addition, there is evidence in the form of testi mony from Jarvis and Kirby Kyles that Jarvis paid Johnston $2,000 for hi s participation in perpetrating this scheme. Johnston contends that this payment w as for past legal services rendered, but a jury could reasonably believe otherwise. The payment is clear evidence that Johnston had a financial stake in the drug conspiracy. There is also evidence from which a jury could reas onably conclude that Johnston manufactured his testimony about his belie f that Jarvis was out of the drug business. In a wiretapped conversation betwee n Johnston and Jarvis, Johnston told Jarvis that he had just met with Alexand Ramone and verified the lie to them. In that conversation, Johnston and Jarvis display an astonishing degree of glibness in talking about their scheme, p articularly in light of the fact that the pair’s alleged purpose in perpetrating the lie was to save Jarvis’s life: JARVIS: Hello JOHNSTON: ---- damn, I tell you what, that little Me xican was

jumping around my office like somebody stuck a cigarette up his ---- . (laugh) They do look funny when they turn white (laugh) oh ----. JARVIS: I told them [the police] mentioned their nam es and

wooh. JOHNSTON: Yep. Yep. JARVIS: Boy they . . . JOHNSTON: (laugh)- 8 -

JARVIS: I was sittin’ there watchin’ that son of a -

---

change colors . . . ---- damn. ROBERT: Well, I . . . I think your concerns were unf ounded. JARVIS: Okay (laugh). ROBERT: I get that impression. They’re going to tak e a

little vacation. Appellant’s br. at 19. From the cavalier manner in which Johnston conducted himself in this conversation, the jury would have b een justified in disbelieving Johnston’s story. In sum, the jury was faced with the following scene . At the request of a client whom Johnston knew to be a drug dealer, John ston agreed to lie to two other drug dealers in order to deter them from tryi ng to collect a drug debt. Jarvis incurred that drug debt because Alex and Ramone fro nted him money; he could not pay because his customers had not yet paid him. Jarvis needed a way to delay or inhibit the collection of that drug debt, and so he enlisted Johnston’s help. A reasonable juror could conclude beyond a reasonable doubt that Johnston knew that (1) Alex and Ramone had fronted Jarvis drugs, which Jarvis had in turn fronted to other drug dealers; (2) Jarvis could notpay Alex and Ramone for all of the fronted drugs because Jarvis’s customers had no t yet sold all of it; (3) his lie would cause Alex and Ramone to cease contact, at le ast temporarily, with Jarvis; (4) because Alex and Ramone would cease contact with Jarvis, Jarvis’s customers would have more time to sell the remainder of the f ronted drugs and Jarvis would have more time to collect the remainder of the mone y due on those drugs; and (5)- 9 -

Jarvis actually intended to continue collecting the money on the fronted drugs. Indeed, this is exactly what occurred. Jarvis neve r had to repay the debt because Alex and Ramone disappeared. Johnston’s lie allowe d Jarvis and his customers to keep the profits generated by the subsequent mariju ana sales. The evidence was sufficient to establish that Johnston knowingly andintentionally entered into a conspiracy to distribute marijuana. The defendant also contends that the government fai led to prove its case because it did not prove that he conspired with all of the co-conspirators named in the indictment. “A variance arises when the eviden ce adduced at trial establishes facts different from those alleged in an indictment.” United States v. Ailsworth , - -- F.3d ---, 1998 WL 101788 at *4 (10th Cir. 1998) (citations and internal quotation marks omitted). A variance constitutes r eversible error only if it affects a defendant’s substantial rights. See id. In this case, however, there is no variance. The indictment charged that “Alfredo Veg a, Emmanuel Reyes, Victor Rodriguez, and Robert Johnston did knowingly and intentionally combine, conspire, confederate and agree together with each other and with others both known and unknown to the Grand Jury to knowingly an d intentionally distribute, and possess with intent to distribute, marijuana . . . .” Thus, the government was not required to prove that Johnston conspired with any or all of the named codefendants, so long as it at least proved that he c onspired “with others” for the- 10 -

purpose alleged. As already discussed, the evidenc e was sufficient to show that Johnston conspired with Jarvis to facilitate the di stribution of marijuana. B. Section 843(b) Charges The defendant also contends that the evidence was i nsufficient as a matter of law to prove the intent element of each of the t hree use-of-telephone charges brought under 21 U.S.C. § 843(b). To obtain a conv iction under section 843(b), the government must prove that the defendant (1) kn owingly or intentionally (2) used a telephone or other communications facility ( 3) to “commit, cause or facilitate” the commission of a drug felony. Unite d States v. Milton , 62 F.3d 1292, 1294-95 (10th Cir. 1995). Johnston agreed to lie on Jarvis’s behalf on Octobe r 27, 1995 in a meeting with Jarvis at Johnston’s office. The three Jarvis -Johnston phone conversations underlying the section 843(b) convictions occurred on October 30 and 31, 1995. In the first intercepted conversation, Johnston con firmed that he had told Kyles that Jarvis had been arrested. Johnston said, “[T] hat seed got planted . . . this morning,” to which Jarvis responded, “Yeah, Kirby c alled me.” Appellant’s Br. at 14. In the second conversation, Johnston confirmed to Jarvis that Alex and Ramone were planning to visit Johnston’s office soo n thereafter to verify the arrest story. See id . at 17-18. In the third, Johnston called Jarvis i mmediately after Alex and Ramone had left Johnston’s office to tell Jarvis that he had verified- 11 -

the false story to them. Johnston said, “I get that impression they’re going to take a little vacation.” Id. at 19. It is clear that all three of these conversations r elate to Johnston’s dissemination of the false story, and the defendantdoes not contest this conclusion. Rather, he argues that he did not have the requisite intent to commit, cause, or facilitate a drug felony when he had thes e conversations. However, we have already concluded that there was sufficient ev idence to establish that Johnston intentionally involved himself in the cons piracy to distribute marijuana when he agreed to disseminate the false story. It follows naturally that Johnston intended to facilitate the conspiracy in the three telephone conversations in which he discussed the false story with Jarvis. Thus, a reasonable jury could conclude beyond a reasonable doubt that, in these three sepa rate instances, Johnston intentionally used a telephone to facilitate the co mmission of a drug felony. II. Jury Instructions The defendant asserts that the district court erred by failing to give the jury two proposed instructions. “We review the instruct ions de novo to determine whether, as a whole, they adequately apprised the j ury of the issues and the governing law,” though we have also said that we re view a court’s refusal to give a particular instruction for an abuse of discretion . United States v. Wolny , 133 F.3d 758, 765 (10th Cir. 1998). “Little turns, how ever, on whether we label- 12 -

review of this particular question abuse of discret ion or de novo , for an abuse of discretion standard does not mean a mistake of law is beyond appellate correction. . . . The abuse of discretion standard includes re view to determine that the discretion was not guided by erroneous legal conclu sions.” Koon v. United
States , 518 U.S. 81, 100, 116 S. Ct. 2035, 2047-48 (1996) . A trial court does not err so long as the instructions that it gives fairl y state the governing law and provide the jury with an understanding of the issue s and applicable standards.
See United States v. DeSoto , 950 F.2d 626, 631 (10th Cir. 1991). The first refused instruction that the defendant pr oposed stated, “The testimony of a perjurer should always be consideredwith caution and weighed with great care.” R.O.A. doc. 78. The defendant c ontends that the district court should have given this instruction because another witness contradicted certain testimony of Kyles during the trial, and also becau se Kyles’s testimony at trial contradicted some of his own testimony previously g iven before the grand jury. Therefore, the defendant argues, the district courtshould have specifically cautioned the jury regarding the weight to give Kyl es’s testimony. In refusing the instruction, the district court said, The Court feels like the instruction labeled “The C redibility of Witnesses and Impeachment” fully covers the law as it relates to the jury’s determination of credibility of each witness and the inconsistent statements made by a witness. And the Court feels that the use of the term perjurer in the instruction its elf could . . . have a legal connotation to the jury that the Court has ma de the- 13 -

determination for it, and that is not the fact. Trial Tr. at 204-05. We agree. Any concerns that the defendant had regarding the weight the jury would give the testimony of any wit ness were more than satisfactorily addressed by Instructions 11 and 12. Instruction 11 stated:

You are the sole judges of the credibility or “beli evability” of each witness and the weight to be given to his test imony. In weighing the testimony of a witness you should cons ider the witness’ relationship to the United States or the defendant and his interest, if any, in the outcome of the case; manner of testifyi ng; criminal record . . . ; candor, fairness and intelligence; and the extent to which he or she has been supported or contradicted by other cre dible evidence. You may, in short, accept or reject the testimony o f any witness in whole or in part. R.O.A. doc. 86. Similarly, Instruction 12 informedthe jury that “a witness may be discredited or impeached by contradictory eviden ce; or by evidence that at other times the witness has made statements which are inconsistent with the witness’s present testimony.” Id. The district court did not err in refusing the perjurer instruction. The second refused instruction that the defendant a sserts the district court should have given is a theory of the defense instru ction. A district court must give a theory of defense instruction only if the co urt’s instructions were erroneous or inadequate without it. See Wolny , 133 F.3d at 765. The defendant’s proposed theory of the defense instruction stated,

The Defendant, Robert L. Johnston, has pleaded “Notguilty” to the charges contained in the indictment. This p lea of not guilty- 14 -

puts in issue each of the essential elements of the offense described in these instructions and imposes on the governmentthe burden of establishing each of these elements by proof beyonda reasonable doubt. Defendant . . . contends that he is not guilty of t he crimes charged because the government has failed to prove that the defendant and any other person arrived at any form of agreement to distribute marijuana. An attorney at law does not join a criminal conspir acy by virtue of receiving the confidences of any of its p articipants of past crimes, nor by assisting any such member of a consp iracy in terminating his or her role in the conspiracy. R.O.A. doc. 78. In refusing the instruction, the d istrict court stated that the instruction contained arguments, which the defense could address in closing, rather than only statements of the law. Further, t he court noted that its other instructions to the jury fully covered all of the i ssues presented in the instruction. Again, we agree. Instruction Number 6, “Plea and Presumption of Inno cence,” stated that the defendant pleaded not guilty to each count and that , therefore, the government had the burden of proving its case beyond a reasonable doubt. These were the points raised in the first paragraph of the propose d instruction. The second paragraph of the proposed instruction merely states why the defendant believes he is not guilty and that the government did not prove its case. Such a statement is argument and is inappropriate for jury instructions

. The issues raised in the third paragraph of the pro posed instruction were satisfactorily covered by Instructions 19, 20, and 21. Instruction 19 defined- 15 -

conspiracy. Instruction 20 detailed what the evide nce must show before a jury can find that a defendant was part of a conspiracy. In particular, the last paragraph of Instruction 20 stated, “Merely associating with others and discussing common goals, mere similarity of conduct between oramong such persons, merely being present at the place where a crime tak es place or is discussed, or even knowing about criminal conduct does not, of it self, make someone a member of the conspiracy or a conspirator.” Instruction 2 1 detailed the type of agreement that must occur for a conspiracy to exist. The thi rd paragraph of the proposed instruction adds little to the quoted language from Instruction 20 and the court’s other instructions. The jury had the full panoply of law regarding when a conspiracy exists and when it does not. The court’ s refusal of the theory of the defense instruction did not preclude the jury from considering the defense’s theory. III. Motion to Suppress Intercepted Telephone Conver sations Under the federal wiretap statute, “[a]ny aggrieved person in any trial . . . before any court . . . of the United States . . . m ay move to suppress the contents of any wire or oral communication intercepted pursu ant to this chapter, or evidence derived therefrom, on the grounds that . . . the interception was not made in conformity with the order of authorization or approval.” 18 U.S.C. § 2518(10)(a). Johnston has standing as an “aggrie ved person” under the statute- 16 -

because he was a party to the intercepted wire comm unications at issue. Id. § 2510(11). He moved to suppress the intercepted c onversations between himself and Jarvis on the basis that the government failed to minimize the interception of privileged attorney-client communications, as requi red by the Oklahoma state court order authorizing DEA agents to tap Jarvis’s phone lines. The district court denied his motion. Johnston appeals that denial. In reviewing a district court’s refusal to suppress wiretap evidence, “we accept the district court’s factual findings unless clearly erroneous, review questions of law de novo , and view the evidence in the light most favorable to the prevailing party.” United States v. Castillo-Garci a , 117 F.3d 1179, 1186 (10th Cir.), cert. denied , 118 S. Ct. 395 (1997). The Oklahoma state court order that authorized the wiretap of Jarvis’s phone apparentlywas issued under Oklahoma’s wiretap statute, O KLA
. S TAT
. ANN . tit. 13, § 176.1 et seq. (West 1994). The procedures set forth in the Oklahoma statute are vi rtually identical to those prescribed by the federal wiretap statute. Compare O KLA
. S TAT
. ANN . tit. 13, § 176.9 with18 U.S.C. § 2518; see United States v. Edwards , 69 F.3d 419, 429 (10th Cir. 1995), cert. denied , 116 S. Ct. 2497 (1996). Accordingly, we apply federal law in reviewing the admissibility of the i ntercepted conversations. See United States v. Quintana , 70 F.3d 1167, 1169 (10th Cir. 1995). The record on appeal does not include a copy of the wiretap order. The- 17 -

defendant, however, quoted the pertinent provision from it in his brief in support of his motion to suppress, and we assume here that he did so accurately. The order stated that “all wire communications intercep ted will be minimized in accordance” with federal and state law, including t he minimization of privileged communications. R.O.A. doc. 50, at 4. The defenda nt asserts that the government violated this order by failing “to do any minimization with regard to Mr. Johnston’s conversations with his clients,” App ellant’s Br. at 46, and therefore the district court should have suppressedthose conversations in accordance with 18 U.S.C. § 2518(10)(a)(iii). This argument raises two issues: first, whether the conversations were privileged atall; and second, if they were privileged, whether the government failed to adequately minimize their interception. The district court concluded that th e conversations were not privileged because Johnston presented no evidence at the suppression hearing “establishing an attorney-client relationship exist ing between Johnston and Jarvis at the time of the intercepted calls.” United Stat es v. Johnston , No. CR-96-115-L, slip op. at 3 (W.D. Okla. Nov. 8, 1996). Thus, the district court did not reach the second question regarding minimization. In arguing to uphold the district court’s decision to admit the intercepted conversations, the government argues that Johnston cannot assert the attorneyclient privilege either on behalf of Jarvis or on h is own behalf. The government- 18 -

correctly points out that the client alone holds th e attorney-client privilege, see Chirac v. Reinicker , 11 Wheat 280, 24 U.S. 280, 293 (1826);1 J OHN W. S TRONG

ET AL , M C C ORMICK ON E VIDENCE § 92 (Practitioner Ser., 4th ed. 1992) , that an attorney cannot assert it for his own benefit (thou gh he may assert it for a client), and that the client cannot assert it once he has wa ived it, see M C C ORMICK§ 93. The government mischaracterizes the role the attorn ey-client privilege plays here, however. Johnston does not attempt to suppress evi dence as privileged attorneyclient communications. Rather, he argues that the conversations should be excluded because they were taped in violation of th e wiretap order. The attorneyclient privilege comes into play because the order specified that the executing officers should minimize the interception of privil eged communications. The defendant’s ability to pursue a motion to suppress under section 2518 is not impeded by his lack of standing to directly assert the attorney-client privilege. The issue before us, then, is whether the district court properly found that no attorney-client relationship existed between Joh nston and Jarvis at the time of the wiretaps, for if no such relationship existed, the conversations were not privileged, and the government was under no obligat ion to minimize interception of the calls. Our review of the record reveals exa ctly what it revealed to the district court. No attorney-client relationship ex isted between Johnston and Jarvis at the time of the wiretaps.- 19 -

The defendant argued that the intercepted conversat ions were privileged attorney-client communications simply because they involved an attorney. However, “the mere fact that an attorney was involv ed in a communication does not automatically render the communication subject to the attorney-client privilege.” Motley v. Marathon Oil Co. , 71 F.3d 1547, 1550-51 (10th Cir. 1995), cert. denied , 517 U.S. 1190 (1996). In order to be covered by the attorney-client privilege, a communication between a lawyer and cli ent must relate to legal advice or strategy sought by the client. See id. ; In the Matter of Grand Jury Subpoena , 697 F.2d 277, 278 (10th Cir. 1983); see also M C C ORMICK § 88 (privilege covers communications where client seeks “professional legal advice”) . The defendant does not point us to, nor could the d istrict court uncover, any credible evidence in the record that demonstrates t hat the conversations related to legal advice or strategy sought by Jarvis. Johnston also argues that conversations he had withJarvis regarding representation of certain of Jarvis’s relatives wer e privileged. In those cases, however, the “clients” are Jarvis’s relatives, not Jarvis, even if Jarvis paid for the legal representation. See 3 J ACK B. W EINSTEIN & M ARGARET A. B ERGER , W EINSTEIN ’ S F EDERAL E VIDENCE § 503.11[2] (2d ed. 1998) (noting that for purposes of the attorney-client privilege, the “cli ent” is “the actual recipient of the services”).- 20 -

We also find no merit in the defendant’s argument t hat the conversations were privileged because, rather than demonstrating that he was participating in a drug conspiracy, they show that he was actually pro viding legal advice to Jarvis regarding how to withdraw from a conspiracy. The d istrict court rejected the argument in denying the motion to suppress, and the jury subsequently rejected it as well when it returned a guilty verdict against t he defendant. “The attorney-client privilege does not apply where the client consults an attorney to further a crime or fraud.” In re Grand Jury Procee dings , 857 F.2d 710, 712 (10th Cir. 1988) (citing Clark v. United States , 289 U.S. 1 (1933)). The district court did not err in concluding that no attorney-client r elationship existed between Johnston and Jarvis at the time of the wiretaps, an d it properly denied the defendant’s motion to suppress. IV. Sentencing The defendant raises two specific challenges to his sentence. First, he asserts that the district court improperly sentence d him to one year in prison for attempt to possess the steroid decadurobolin, the c ount to which he pleaded guilty prior to trial. Defendant’s brief raises this argu ment in a single sentence and without citing any support. Moreover, he did not r aise this issue below, so our review is only for plain error. See United States v. Gilkey , 118 F.3d 702, 704 (10th Cir. 1997) (noting that while failure to rais e issue below normally precludes- 21 -

appellate review, narrow exception exists for legal questions involving application of the sentencing guidelines). Under t he plain error standard, “the error must be particularly egregious, as well as ob vious and substantial.” Id. (citations and internal quotation marks omitted). We find no error here. Because Johnston was convicted of more than one dru g count, the district court properly grouped all of the defendant’s offen ses together for purposes of determining his total punishment. See U.S. S ENTENCING G UIDELINES M ANUAL §§ 3D1.1 - 3D1.4, 3D1.5 (1995). Under section 3D1. 4, the combined offense level determines the length of a defendant’s total sentence. In this case, that combined offense level corresponded to a total puni shment of 26 months. Under section 5G1.2(b), for each count on which a defendant is convicted, he receives a sentence equal to that total punishment, with each sentence running concurrently. In this case, however, the resulting 26 month sente nce for the steroid possession count was higher than the one-year statutory maximu m sentence for steroid possession. Accordingly, section 5G1.1(a), throughoperation of section 5G1.2(b), requires that the statutory maximum be th e sentence on that particular count. Therefore, the district court properly calc ulated the one-year sentence on the steroid conviction. Second, the defendant argues that the district court improperly based his sentence on a quantity of marijuana that was not re asonably foreseeable. A- 22 -

defendant who is convicted of participating in a dr ug conspiracy is accountable “for that drug quantity which was within the scope of the agreement and reasonably foreseeable to her.” United States v. Arias-Santos , 39 F.3d 1070, 1078 (10th Cir. 1994). “The sentencing judge’s assessme nt of the drug quantity attributable to a convicted conspirator is a fact f inding determined by a preponderance of the evidence which we review for c lear error.” Id. In computing the defendant’s base offense level under the guidelines, the district court held the defendant accountable for 61.8 pound s of marijuana of the total 200 pounds that Alex and Ramone fronted to Jarvis. See United States v. Johnston , No. CR-96-115-L, Order at 3 (W.D. Okla. Apr. 24, 1997). The court arrived at this amount under the following rational e: At the time Jarvis contacted defendant, Jarvis indi cated that the amount he still owed Alex and Ramone was $34,000.00 out of an original debt of $110,000.00 [for 200 pounds of mar ijuana]. The court finds that, prior to October of 1995, the re is no evidence that defendant was aware of the specific a mount of marijuana involved in the conspiracy. . . . Howeve r, the court finds the defendant did have knowledge that at least $34, 000.00 worth of marijuana was involved. Dividing the original debt of $110,000.00 by 200 po unds of marijuana, the court reaches a per pound price of $ 550.00. Dividing $34,000.00, the amount known to defendant, by the p er pound price of $550.00, the court reaches an amount of 61.8 pou nds. Id. The district court’s analysis was exceedingly rat ional. The court did not err in attributing 61.8 pounds of marijuana to the defe ndant.
AFFIRMED.