UNITED STATES COURT OF APPEALS TENTH CIRCUIT

___________________ ________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 11-3294 STEPHEN BLACKBURN, Defendant-Appellant. (D.C. No. 2:09-CR-20133-JWL-12) (D. Kan.)

___________________________________ ORDER AND JUDGMENT *

___________________ _________________ Before LUCERO , BALDOCK , and TYMKOVICH , Circuit Judges.

___________________ _________________ A jury convicted Defendant Stephen Black burn of one count of conspiracy to possess with intent to distribute more than 1, 000 kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)( A)(vii). Defendant now appeals, challenging venue and the sufficiency of the evidence. Exercising ju risdiction pursuant to 28 U.S.C. § 1291, we affirm.
I. The Government presented the following facts at trial. The conspiracy in this case had its roots in 1997 when Cu rtis Pitter (also known as Mich ael Francois) got in contact with his boyhood friend Devon Thomas. P itter would arrange for a source in Los

* This order and judgment is not bind ing precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### April 12, 2013
Elisabeth A. Shumaker Clerk of Court- 2 - Angeles, California, to ship fi ve to ten pounds of marijuana to Thomas in Florida. This arrangement was interrupted in 1998 and ag ain in 2000 by Thom as and then Pitter serving time in jail and Thomas twice being deported to Ja maica. Pitter and Thomas resumed marijuana trafficking in earnest in 2004, this time with Thomas going to Phoenix, Arizona, to obtain marijuana from Mexican sources. Thomas would pay the sources with cash sent from Pitter and deliver ed by either Tamary Brown or Gladstone McDowell. Pitter would then wrap the marijuana in plastic wrap, put grease over the packages, box them (usually wi th an outer and inner box sealed by spray foam or glue), and ship the boxes to Kansas City, Missouri, by UPS. The shipments started out at thirty to forty pounds per week and increased to around 300 pounds per week. Dwight Rhone, Pitter’s cousin, also helped sh ip the marijuana. The conspi rators split the profits based on set percentages, with Pitter receiving 40%, Gladstone McDowell 30%, Thomas 20%, and Rhone 10%. In 2006, police arre sted Devon Thomas in Phoeni x while he was dropping off marijuana packages at a UPS store. After be ing released on bail, he fled to Florida, where he continue d to receive money from Pitter for hi s part of the marijuana profits. Thomas testified that five men “work[ed] for us” in Phoenix packaging marijuana. Record on Appeal (“ROA”), vol. VII at 303. These men were Rhone, Theodore McDowell (Gladstone McDowell’s son), Sa mora McIntosh, Shel don McIntosh, and Ibrahima Kane. They became known at trial as the “Arizona Five.” Thomas testified that Arizona Five had money invested in th e marijuana business and each would receive a certain percentage of the profits based on his contribution. He also testified that most of- 3 - the people working in Phoenix were connected through Pitter, “but, I mean, it was just one organization. One come [sic ] and goes. I wasn’t directly involved with most of these people, but there was a part of it through [Pitter] .” ROA, vol. V II at 306–07. The conspirators’ usual pattern of travel was to drive or take a bus from Kansas City to Phoenix, and then to fly on one-way tickets back to Kansas City. They would also often fly through Las Vegas, Nevada, in order to attract less suspic ion if they we re discovered with large amounts of cash. In May 2007, the organization suffered a se tback when Pitter and the Arizona Five were arrested at a house in Avondale, Arizon a, a suburb of Phoenix. The police seized 630 pounds of marijuana and $223,000 in cash from the house. Defendant Blackburn immediately flew to Arizona, where he attempte d to get the men released on bail. Only Pitter was released, and after taking a break fo r a month or two, the organization resumed trafficking marijuana. Pitte r sent Gladstone McDowell to Arizona to purchase and package marijuana. Bu t sometime in the summer of 2007, Pitter asked Thomas to return to Arizona because Gladston e was not negotiating for a pr oper quality of marijuana. Thomas said the organization was shipping between 200 and 300 pounds of marijuana twice a month during the second half of 2007. Thomas testified that Pitter asked him to send some marijuana to a person in Tennessee named Yosiphat. Thomas believed this person was Defe ndant Blackburn, but Tamary Brown identified “Yosiphat” as Dena ud Egana. Egana himself said his name was “Yehosaphat.” Egana testified that Defe ndant recruited him in 2007 to do legal research regarding the Arizona Five becaus e Egana was a paralegal. Defendant and- 4 - Egana received powers of attorn ey in the names of each of the Arizona Five. Defendant used these powers of attorn ey to inform Arizona law enforcement officials that approximately $70,000 was missing from the Av ondale house in addition to the $223,000 seized by police. Egana also testified that in early 20 07 Defendant had offered Egana some marijuana for resale. Defenda nt told Egana that he received marijuana packages from Pitter and Pitter’s “congregation” and that De fendant “survived” through the distribution of marijuana. Egana declined the offer to distribute marijuan a because he wanted to stay out of trouble. In 2008, Eg ana helped Defendant draft a motion in defense of a young man in Defendant’s congregation who wa s facing marijuana-related charges in Tennessee. Defendant told Egana he had lost $10,000 of his own mo ney in relation to the case. Defendant also told Egana that if Pitter had shipped the marijuana to him, the police would not have inte rcepted it in Tennessee. Defendant’s IRS records showed that he di d not file federal income tax returns in 2007, even though his bank account showed cash deposits of $42,698. The account
records also showed mu ltiple withdrawals for rental vehi cles and airline tickets. Egana testified that Pitter had purchased a car for Defendant for $40,000. In November 2007, a local narcotics en forcement officer st opped a SUV bearing Missouri license plates in G oodwell, Oklahoma, after he ob served it driving westbound on the shoulder of Highway 54 without signaling. While the car was stopped, another officer arrived with a drug do g, which alerted to the vehicl e. A search yielded $139,980
in cash. Gladstone McDowell was a backseat passenger in the vehicle. He claimed the- 5 - money, signing a receipt for it and writing “T he money is mine al one.” An assistant district attorney from Guymon, Oklahoma, te stified that he file d a forfeiture action against the currency. He me ntioned that Guymon was in th e Oklahoma panhandle. He testified that five days after th e seizure, Defendant came to the district attorney’s office in Guymon and said the “moneys were church moneys” and asked that the money be given back to him. ROA, vol. VII at 1152. The district attorney ’s office declined. In June 2009, a UPS store owner in Mesa , Arizona, notified th e DEA that a person matching the description of Curtis Pitter had dropped off sixteen boxes. The boxes were addressed to two addresses in Missouri, one of which was associ ated with a former housemate of Pitter’s. The DE A obtained a search warrant fo r the eight boxes being sent to that address, and tracked the boxes to a UPS distribution facility in Kansas City, Kansas. A search of those boxes yi elded about 200 pounds of marijuana. The marijuana trafficking organization fina lly unraveled in December 2009, when agents arrested Curtis Pitte r and Gladstone McDowell and se arched both their residences in Kansas City, Missouri. At Gladstone McDo well’s residence, the agents seized records documenting marijuana transacti ons totaling 4,545.5 pounds. At Pitter’s residence on Oldham Road, authorities found 67 pounds of marijuana, $98,256 in cash, and an envelope containing power of attorney document s for the five defendants held in Arizona. The Oldham Road residence had been purchased under Gladstone McDowell’s name in 2005, although Pitte r provided the money for the mortgage payments. Closing for the house took place at a title company’ s office in Leawood, Kansas. The down payment was made up of cashier’s checks, seve ral of which were obtained in Jamaica.- 6 - A grand jury indicted Defe ndant and nineteen other pe rsons on drug trafficking and money laundering charges. The Supers eding Indictment charged Defendant with conspiring to distribute 1000 kilo grams or more of marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(vii) . A jury convicted Defenda nt, and the district court sentenced him to 151 months’ imprisonment. Defendant filed no fewer than nine posttrial motions pro se , raising (among other things) the i ssues he now urges on appeal with benefit of counsel—insufficient evidence and improper venue.
II. “We review sufficiency-of-the-evidence challenges de novo, considering both direct and circumstantial evidence, and all r easonable inferences therefrom, in the light most favorable to the government.” United States v. Acosta-Ga llardo, 656 F.3d 1109, 1123 (10th Cir. 2011) (interna l quotation marks and bracket s omitted). We will reverse on sufficiency of the evidence grounds on ly if “no rational jury could have found each element of the crime beyond a reasonable d oubt.” United States v. Parada, 577 F.3d 1275, 1283 (10th Cir. 2009). To prove a defendant was part of a drug-trafficking conspiracy under 18 U.S.C. § 841, the Govern ment must show: “(1) two or more persons agreed to violate the law; (2) the defendant knew the essential objectives of the conspiracy; (3) the defendant knowingly and vo luntarily participated in the conspiracy; and (4) the alleged coconspirators were inte rdependent.” United St ates v. Yehling, 456 F.3d 1236, 1240 (10th Cir. 2006). Here, the jury heard the following evidence linking De fendant to the marijuana trafficking conspiracy. In ea rly 2007, he offered to Egana some marijuana to sell. He- 7 - told Egana he received mariju ana from Pitter’s “congregation” and that he survived by distributing marijuana. Defe ndant told Egana he had lost $10,000 of his own money when a member of Defendant’s “congregati on” was found in possession of marijuana, and he told Egana that the ma rijuana would not have been caught if Pitter had shipped it to Defendant. Defendant flew from Tennessee to Phoenix the day after the Arizona Five were arrested and tried to help them with th eir legal proceedings. He tried to claim the $139,980 in cash seized from Gladstone Mc Dowell in the Oklahoma panhandle, claiming it was “church money.” And, finally, Pitte r purchased a $40,000 car for Defendant. From this evidence, a rational jury could eas ily conclude Defendant was a member of the conspiracy. Defendant makes several feeble attempts to undermine this evidence. First, he says he “made no claim to the money” seiz ed in Oklahoma. Appe llant’s Br. at 21. Likewise, he asserts in the fact section of hi s brief, “Further evidence presented at trial confirmed that Stephen Blackburn never made a claim for the money seized in Oklahoma.” Id. at 7. This flatly missta tes the evidence. The part of the record Defendant cites only establishes that he didn’t file any “legal docu ments stating that the money was his.” ROA, vol. VII at 1873. But the assistant di strict attorney from Guymon, Oklahoma, testified, “Later Mr. Blac kburn then came to our office. He said that those moneys were chur ch moneys, and he asked if we would give those church moneys back to him.” Id. at 1152. So Defend ant did, in fact, make a claim to the money. Next, Defendant claims De von Thomas was a wholly unreliable witness based on his mistaken belief that Defendant used th e name Yosiphat or Yehosaphat, even though- 8 - two other witnesses identified Egana as Yosiphat. Defendant also says Thomas initially told federal agents that he shipped eight pounds of marijuana to Yosiphat, but then testified at trial that he sent Yosiphat 300 to 400 pounds. Bu t these attempts to undermine Thomas’s credibility are futile on appeal. Weighing credibility is a job delegated to the jury, not to us. United Stat es v. Bowen, 527 F.3d 1065, 1076 (10th Cir. 2008). Finally, Defendant tries to cast doubt on Egana’s testimony that Defendant offered to front him marijuana. Defendant says, in a footnote, that Egana’s testimony was “uncorroborated, came from a pe rson admitted to have a histor y of convictions for truth or veracity crimes and [who] was hoping for consideration for a reduction of his sentence.” Apellant’s Br. at 22 n.5. He a dds that even if this testimony were true, it would be evidence of “a whole separate cons piracy” from the conspiracy charged in the indictment. Id. In our circuit, “[a]rguments raised in a perfunctory manner, such as in a footnote, are waived.” United States v. Hardman, 297 F.3d 1116, 1131 ( 10th Cir. 2002). Yet even if we treated these arguments as pr operly raised, the first argument goes only to Egana’s credibility, whic h is unreviewable on appeal. Bowen, 527 F.3d at 1076. The second argument would be subject to plain e rror review because De fendant did not raise it in any of his post-trial motions. See Fe d. R. Crim. P. 52(b). And the evidence connecting Defendant to the larger conspiracy demonstrates there was no error, much less a plain one. So we cannot overturn the jury’s verdict.
III. Article III of the Constitution requires the tria l of all crimes to be held “in the State- 9 - where the said Crimes shall have been committe d.” U.S. Const. art. III, § 2, cl. 3. See also U.S. Const. amend. VI. Echoing the constitutional command, Federal Rule of Criminal Procedure 18 directs that venue is proper “in a district where the offense was committed.” When the crime charged is cons piracy, “venue as to prosecution of all members of the conspiracy lies either in th e jurisdiction in which the conspiratorial agreement was formed or in a ny jurisdiction in which an overt act in furtherance of the conspiracy was committed by any of the conspira tors.” United States v. Foy, 641 F.3d 455, 466 (10th Cir. 2011) (quoting United States v. Rinke, 778 F.2d 581, 584 (10th Cir. 1985)). The Government need only prove venue by a preponderance of the evidence. Acosta-Gallardo, 656 F.3d at 1118. In this case, the properly-instructed jury found venue to lie in the United States District Court for the District of Kansas . Defendant has not challenged the jury instructions, but only the adequacy of th e evidence supporting venue. In reviewing a jury’s decision that venue lies in a particular district, we “v iew the evidence in the light most favorable to the government and make all reasonable inferences and credibility choices in favor of the finder of fact.” Id. (brackets omitte d) (quoting United States v. Kelly, 535 F.3d 1229, 1232 (10th Cir. 2008)). The Government proposes several bases on which the jury could have rested its venue finding. First, the Government argues the jury reasonably could have found venue to lie in Kansas based on th e seizure of eight boxes of ma rijuana in the UPS facility in- 10 - Kansas City, Kansas. 1 But although the conspirators cer tainly shipped the boxes through Kansas, the mere presence of the boxes in Kansas is hardly an “overt act.” Pitter committed an overt act in furt herance of the conspiracy wh en he shipped the packages from a UPS store in Mesa, Arizona. But UPS’s transportation of the boxes through Kansas, even if foreseeable, wa s not an act committed by any of the conspirators. If this were a sufficient basis for venue, the Govern ment could have brought the prosecution in any judicial district through which the conspi racy’s marijuana shipme nts passed. For this specific shipment, those districts might have included the District of New Mexico, the Western and Northern Districts of Oklahoma, and the Northern District of Texas. The boxes may have even traveled through a UPS h ub in another district, such as the District of Colorado. The record also shows the conspirators ship ped marijuana from Arizona to Florida and Tennessee. So under the Government’s theo ry, venue might lie in any number of judicial districts in the southern United States simply because UPS shipments traveled through those district s. The Government has not c ited, nor have we found, any authority for stretching the rules of venue so far. The Government also argues the closing of the Oldham Road residence sale at a title company in Kansas is suffi cient to establish venue. The Oldham Road purchase was relevant to the money laundering charge s, but Defendant was only convicted for conspiracy to possess marijuana w ith intent to distribute. No thing in the re cord suggests

1 Defendant suggests UPS actually found these boxes in Missouri, but then transported them to a secured facility in Kansas . This supposition is directly contradicted by the record, which shows the boxes were “seized at the UPS hub in Kansas City, Kansas.” ROA, vol. VII at 1115.- 11 - that the purchase of the Oldham Road re sidence was an act in furtherance of the marijuana-trafficking conspiracy. Ultimately, we need not deci de whether these first two theories are sufficient to support the jury’s finding of venue. The jury heard other evidence from which it could conclude by a preponderance of the evidence that the c onspirators committed acts in furtherance of the conspiracy in the District of Kansas. Tamary Brown testified that she, Gladstone McDowell, and Marlon Forrester wo uld drive or take a bus from Kansas City, Missouri, to Arizona with the money to buy more marijuana. Furthermore, the jury heard that police stopped a vehicle carrying Gladst one McDowell and nearly $140,000 in cash on Highway 54 in the Oklahoma panhandle. The vehicle bore Missouri license plates and was westbound. Jurors could easily conclu de based on these pieces of evidence that multiple members of the conspi racy drove through Kansas in order to return cash to Arizona. Driving a vehicle and carrying cash are both overt acts. See United States v. Record, 873 F.2d 1363, 1370 (10th Cir. 1989) (a pproving jury instru ction that said an overt act for venue purposes “may be as innocent as the ac t of a man walking across the street, or driving an automobile, or using a telephone”). See also United States v. BailonSantana, 429 F.3d 1258, 1262 (9th Cir. 2005) (driving a car); United States v. Fernandez, 559 F.3d 303, 327 (5th Cir. 2009 ) (loading cash into a truc k). So the jury reasonably could infer the conspirators co mmitted overt acts in furtherance of the conspiracy in the District of Kansas. Consequently, we cannot disturb its finding that venue was proper in that district.- 12 - AFFIRMED. Entered for the Court,

Bobby R. Baldock United States Circuit Judge