United States Court of Appeals, District of Columbia Circuit
February 13, 2018
Appeals from the United States District Court for the
District of Columbia Nos. 1:13-cr-00200-6, 1:13-cr-00200-17,
M. Wilcox, appointed by the court, argued the cause for
appellants. With him on the briefs were William H. Burgess,
William L. Welch III, and Edward C. Sussman, all appointed by
S. Smith, Assistant U.S. Attorney, argued the cause for
appellee. With him on the brief were Elizabeth Trosman, John
P. Mannarino, and Kenneth Whitted, Assistant U.S. Attorneys.
J. Lenerz, Assistant U.S. Attorney, entered an appearance.
Before: Griffith, Srinivasan and Wilkins, Circuit Judges.
WILKINS, CIRCUIT JUDGE
Stoddard, Sidney Woodruff, and Jerome Cobble were tried
together for charges related to a heroin-distribution
conspiracy and a conspiracy to launder money. A jury
convicted Stoddard and Woodruff under 21 U.S.C. §§
841(a)(1), 841(b)(1), and 846 for conspiracy to distribute
and possess with intent to distribute heroin, and acquitted
Jerome Cobble of the same charges. The jury returned a guilty
verdict for Cobble on a separate charge of conspiracy to
launder money in violation of 18 U.S.C. § 1956(h).
prosecutions originated from an investigation the Government
began in 2012 that focused on a notorious drug dealer,
Jermaine Washington, who had recently been released from
prison. After employing traditional surveillance techniques,
the Government successfully applied for two wiretaps on
Washington's cell phone. The evidence presented at
Appellants' trial consisted, primarily, of conversations
recorded from the wiretaps and the testimony of Washington
interpreting the language in the conversations between
Washington and the three defendants. After the Appellants
were convicted, the District Court sentenced Stoddard and
Woodruff to mandatory-minimum sentences triggered by the drug
quantity that the jury had found to be attributable to the
conspiracy as a whole. Appellants assert that the District
Court committed multiple errors in ruling on pretrial
motions, at trial, and at sentencing.
reasons discussed below, we (1) affirm the District
Court's denial of Appellants' motions to suppress
evidence obtained as a result of the wiretaps because the
District Court did not abuse its discretion in finding that
the Government had met the "necessity" requirement;
(2) affirm the District Court's denial of Stoddard's
and Woodruff's motions for acquittal; (3) affirm the
District Court's denial of Woodruff's motion in
limine to exclude evidence of a prior conviction if
Woodruff had testified in his own defense; and (4) find no
plain error in the District Court's jury instructions on
the money-laundering charge. But we (5) reverse the District
Court's denial of Cobble's motion for acquittal
because the evidence was insufficient to sustain his
money-laundering conviction. We also (6) vacate the sentences
of Stoddard and Woodruff, remand for resentencing, and hold
that, in order for a defendant to be sentenced based on a
mandatory minimum triggered by a certain quantity of drugs, a
jury must find the drug quantity attributable to the
defendant on an individualized basis, not just the drug
quantity attributable to the conspiracy as a whole. Finally,
we reserve judgment on whether the District Court properly
applied the career-offender enhancement before sentencing
Woodruff, and instruct the District Court, on remand, to make
that assessment based on new briefing from the parties and
taking into account the intervening decision in Beckles
v. United States, 137 S.Ct. 886 (2017).
spring of 2012, the D.C. Metropolitan Police Department
partnered with the Federal Bureau of Investigation
("FBI") to investigate the heroin-trafficking
activities of Jermaine Washington in the D.C. metro-area.
Washington had been released from prison in 2010. The
Government used an informant to make controlled drug-buys in
Southeast D.C. and, shortly thereafter, identified Washington
as a potential source of heroin. Based on an extensive
affidavit by FBI Special Agent Joshua Taylor, filed under
seal, the District Court granted the Government's
application for a wiretap on Washington's cell phone from
July 16, 2012, through August 14, 2012. A second 30-day
wiretap, also based on a sealed affidavit, was authorized on
August 16, 2012. The Government also began surveilling
Washington in the D.C. metro-area. The Government recorded
several phone calls between Washington and Woodruff and
between Washington and Stoddard. In the course of its
physical surveillance, the Government observed Woodruff and
Stoddard each meet with Washington one time.
Cobble is Washington's cousin. During the course of the
Government's investigation, Cobble helped Washington
purchase two vehicles. After initial reluctance, Cobble
agreed to help Washington finance a Nissan Altima, and Cobble
purchased the car in his own name. In the summer of 2012,
Washington wrecked the Altima and discussed getting Cobble to
help him buy a Lexus SUV, again in Cobble's name. On July
23, 2012, Cobble traded in the wrecked Altima and financed
the purchase of the Lexus SUV from an auto dealer in Virginia
for $30, 000, making a $3, 700 cash down payment from money
Washington had won gambling in Atlantic City. As with the
Altima, Cobble financed the car in his name, but the car
would be Washington's to use and possess. Shortly after
the purchase, the Lexus SUV was stolen.
Government searched Washington's apartment on December 6,
2012, pursuant to a search warrant, and it recovered 20.1
grams of heroin, a digital scale, and $17, 850 in cash.
Washington agreed to cooperate, and on April 11, 2013, he
pleaded guilty to drug-distribution conspiracy charges, and
conspiracy to launder money and commit wire fraud.
jury returned a superseding indictment charging Calvin
Stoddard, Jerome Cobble, and Sidney Woodruff with conspiracy
to distribute 100 grams or more of heroin in violation of 21
U.S.C. §§ 841, 846, and aiding and abetting under
18 U.S.C. § 2. The indictment also charged Cobble with
conspiracy to launder money and conspiracy to commit wire
fraud under 18 U.S.C. §§ 1956(h), 1349.
the trial proceedings began, Appellants filed motions to
suppress evidence obtained through the wiretaps on
Washington's cell phone, including the recorded
conversations between Washington and each Appellant.
Appellants argued that the Government's wiretap
applications had not met the necessity requirement under 18
U.S.C. § 2518. The District Court denied the motions,
ultimately concluding that the Government had met the
necessity requirement and that it had shown in the wiretap
application that other investigative techniques were
reasonably unlikely to succeed.
status conference the day before trial, the Government
informed the District Court that it was uncertain if it could
proceed because Washington, its star witness, was acting
strange and showing signs of reluctance to testify. After a
delay to administer a competency evaluation to Washington,
which he passed, the trial began.
trial, the Government presented testimony of three law
enforcement officers who had participated in the
investigation, testimony from an expert in code words and
methods used by drug dealers, and testimony of alleged
co-conspirator Sandra Settles. Washington's testimony
provided the strongest evidence against all three defendants.
Washington interpreted the conversations from wiretapped
phone calls, which were played for the jury.
testified at trial about drug transactions with Stoddard and
Woodruff, and about Cobble's role in helping him purchase
a vehicle. The Government presented evidence consisting of
audio recordings of conversations between Washington and
Stoddard and between Washington and Woodruff, and
Washington's testimony interpreting statements in those
conversations. Some of this evidence included statements by
Appellants that suggest they were negotiating prices and
settling accounts from previous transactions with Washington.
See, e.g., A. 356-58 (Woodruff); A. 397-402
(Stoddard). For example, the Government played a conversation
in which Woodruff stated: "I got somebody coming to
town, man, that's trying to get 40, man, but he going to
be here about 10:00 tonight . . . ." A. 363. Washington
testified that he understood Woodruff to mean that Woodruff
had a customer who "wanted to come and purchase 40 grams
of heroin." A. 364. In another recorded conversation
played at trial, Stoddard said to Washington, "[i]nstead
of trying to grab for the extra two, I probably need just to
leave that, you know, just keep it, " which Washington
testified was part of a discussion between the two men about
the cut of heroin Stoddard was going to purchase from
Washington and the tolerance of different heroin users. A.
390-91. Another conversation featured a discussion between
Stoddard and Washington in which the men appeared again to
discuss the discrepancies between, and preferences of,
heroin-buyers. During that conversation, Washington stated
that "[e]verybody's clientele is different." A.
394. Later in the conversation, Stoddard noted that he
"learn[ed] a lot" from Washington. A. 395.
Washington testified that, from 2011 to 2013, Woodruff
purchased heroin from Washington "[o]ver ten times,
" A. 353, and that Stoddard purchased heroin from
Washington between two and four times. A. 378.
also offered testimony against his cousin, Jerome Cobble.
Washington testified that Cobble helped him purchase a Lexus
SUV from a car dealer in Virginia, and that Washington was
dealing heroin during that time period and not otherwise
employed. A. 413-16. Cobble "put the [title of the]
vehicle in his name for [Washington] because at the time
[Washington] didn't have a driver's license." A.
416. Washington recalled that both he and Cobble went to the
car dealership together, and were in "the finance
department" of the dealership together when they
purchased the vehicle. A. 418. Washington made the
down-payment on the Lexus with over $3, 000 he had won
placing a $10 bet at a casino in Atlantic City. A. 416-17.
Washington took possession of the Lexus and kept it at his
residence. A. 418-19. Washington and Cobble planned to make
payments on the vehicle from Cobble's bank account, into
which Washington would make monthly deposits to cover the
payment. A. 418-20. The Lexus was stolen before any payments
were made, but Washington testified that he may have used the
Lexus to sell heroin during the short time he had the
vehicle. A. 419. The Government also played a recorded
conversation between Cobble and Washington in which they
discussed buying some marijuana. A. 421-22. In that same
conversation, Washington told Cobble about Washington's
attempt to purchase a gun and some bullets. A. 422-24.
various times during his direct and cross examinations,
Washington behaved erratically and made statements suggesting
his unreliability as a witness. For example, he stated that
"[i]f somebody needed a false statement, and they was
trying to pay some money for it, I sell it to them." A.
486. He repeatedly suggested he would "not
remember" anything that was not written down or
recorded. See, e.g., A. 495. His emotional tumult
was on display as well. At its apex, he had to be removed
from the courtroom when questioned about his relationship
with his cousin, Cobble. A. 507-08. After this outburst, all
three defendants moved for a mistrial, which the District
lawyers for each defendant rested their cases as soon as the
Government had presented its case-in-chief. The defendants
each moved for judgments of acquittal. The District Court
denied Woodruff's and Stoddard's motions from the
bench and reserved ruling on Cobble's motion. After
further briefing, the District Court denied Cobble's
motion for acquittal as well. In denying Cobble's motion
for acquittal, the District Court noted that Cobble had
argued only that there was insufficient evidence of
"concealment money laundering" but that the
Government had charged him with both concealment and
promotional money laundering. A. 129. In holding that the
evidence was sufficient to support a promotional
money-laundering theory, the District Court relied on
evidence that Washington had "on various occasions used
a vehicle to deliver narcotics to buyers . . . along with
evidence of Cobble's close relationship with Washington .
. . ." A. 129-30.
Government had initially proposed individual verdict forms
that would have required the jury to determine the quantity
of drugs attributable to each defendant. But the District
Court, while recognizing that "there's a [circuit]
split" on the issue, decided to use a verdict form
without individualized drug-quantity determinations. A. 685.
The jury found Woodruff and Stoddard guilty of the
drug-conspiracy charge and found that the conspiracy, as a
whole, involved 100 grams or more of heroin. The jury found
Cobble not guilty of the drug conspiracy charge but guilty of
the money laundering charge.
and Stoddard each moved for a new trial because, they
contended, the jury should have found the amount of drugs
attributable to each of them individually rather than the
amount attributable to the conspiracy as a whole. The
Government opposed the motion but agreed with the defendants
that the jury should have been given a verdict form that
instructed the jury to find an amount attributable to each
defendant, and therefore that the District Court should
sentence the defendants based on an indeterminate quantity of
heroin, not the 100 grams the jury had found were
attributable to the conspiracy as a whole. The District Court
denied these motions and ruled that there was no need for
individual findings of the drug quantity for each defendant.
The District Court explained its reasoning:
The fact that subjects the defendants to the enhanced
statutory maximum of 40 years is that the conspiracy involved
100 grams or more of heroin. That fact was submitted to the
jury and found by the jury beyond a reasonable doubt. . . .
Apprendi and Alleyne did not address
whether a jury must find that the amount of drugs that
triggers a statutory mandatory minimum penalty in a narcotics
conspiracy is attributable to the conduct of a convicted
conspirator - or is reasonably foreseeable by him or her as
the amount involved in the conspiracy - before that
amount's penalties are triggered for that conspirator.
The circuits have split on how . . . to properly resolve this
question. . . . The D.C. Circuit has not resolved this
question either. . . . The instructions provided to the jury
here and the corresponding verdict form are consistent with
the view that the jury need determine only the amount of
drugs attributable to the entire conspiracy, but not to the
A. 109-14 (footnotes omitted).
and Stoddard raised the issue again at sentencing, arguing
that the District Court should decline to impose a five-year
mandatory minimum or a forty-year statutory maximum, both of
which are applicable when a defendant conspires to distribute
100 grams or more of heroin under 21 U.S.C. §
841(b)(1)(B). The Government agreed with this assessment in
its initial sentencing memorandum. The District Court
overruled the objections.
also objected to other aspects of his PSR, including his
career-offender designation resulting from a 1984
armed-robbery conviction and a 1991 drug-distribution
conviction in Maryland. The PSR recommended applying a
career-offender enhancement under USSG § 4B1.1 with an
offense level of 34 and a criminal history category of VI,
which would have resulted in a guidelines range of 262 to 327
months. Woodruff objected, but the District Court did not
rule on the objection, finding instead ...