United States v. Alred (144 F.3d 1405, 1998)

BIRCH, Circuit Judge:

This consolidated appeal by Irma Estella Calderon Aired and Roy Javon Aired from convictions for their participation in a marijuana distribution conspiracy presents trial and sentencing issues. The appeal raises challenges to the government’s single conspiracy theory, its alleged misuse of the grand jury, the district court’s disqualification of preferred counsel, determination of the accountable marijuana amounts, and enhancements for possession of firearms and a leadership role in the marijuana distribution operation. We affirm the convictions and Irma Alred’s sentence. Because the district court erred by according a leadership role to Roy Aired for being a buyer/seller of marijuana, we vacate his sentence and remand for resentencing consistent with this opinion.

I. BACKGROUND

From 1984 until 1994, a group of individuals, known as the “Aired Organization,” in Holmes County, Florida, engaged in an extensive marijuana distribution conspiracy involving thousands of pounds of marijuana. They primarily purchased the marijuana in the Texas/Mexieo area and transported it by vehicles to Holmes County, where it was sold. The principal source for obtaining Mexican marijuana was defendant-appellant Irma Aired, who was Irma Calderon in the mid 1980’s when the conspiracy began. After delivering approximately 300 pounds of marijuana to coconspirator Charles Douglas Mixon in Holmes County and remaining there until it was sold, she became an active participant in the organization. Defendant-appellant Roy Aired became acquainted with Irma Calderon when he flew to Houston; Texas, to obtain from her 200 pounds of marijuana, which he transported in a rental car to Holmes County for sale there. Subsequently, Irma Calderon moved to Holmes County and later married eoconspirator Charlie Aired, Roy Alred’s cousin.

Irma Aired continued to be integrally involved in obtaining marijuana from Texas/Mexico. Numerous shipments intercepted through traffic stops by law enforcement agents were destined for her. .On occasion, the marijuana was concealed in an extra propane gas tank on trucks traveling from Texas to Holmes County. Eventually, Irma and Charlie Aired separated and divorced. Thereafter, competition between Irma, Charlie and Roy Aired became not only a price war but also an aggressive recruitment of each other’s customers as the wire intercept evidence at trial demonstrated.

. On June 15, 1994, a federal grand jury for the Northern District of Florida returned a one-count, superseding indictment charging Irma Aired, Roy Aired, and seven codefendants with conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846. Because some of the original codefendants pled guilty, only Irma Aired, Roy Aired, and three eodefendants went to trial. At least twenty-one smuggling ventures were documented by law enforcement seizures, wire intercepts, testimony from cooperating, former codefendants, and other witnesses, such as Collis Hobby, Willard and Shirley Womble, Jose Cuellar, and Jesus Galaviz. '

Irma Aired, Roy Aired and the three remaining codefendants were convicted. Both Irma Aired and Roy Aired received sentence enhancements for being leaders or managers in the marijuana distribution conspiracy. Irma Aired was sentenced to 364 months of imprisonment, ten years of supervised release, and a fine of $25,000. Roy Aired was sentenced to 293 months of imprisonment and five years of supervised release.

On appeal, Irma Aired contests the district judge’s disqualification of her counsel of choice. Roy Aired contends that the government misused the grand jury to investigate further his involvement in the marijuana distribution conspiracy after the case’ was scheduled for trial and that the district court erred in enhancing his sentence for possession of firearms and for being a leader in the marijuana distribution conspiracy. Both Irma Aired and Roy Aired challenge the single conspiracy theory under which the government prosecuted this case, which they argue involved multiple conspiracies, and the amounts of marijuana for which they were held accountable at sentencing. We address these contentions as trial and sentencing issues and include the pertinent facts relating to each issue.

II. ANALYSIS

A. Trial Issues

1. Choice of Counsel

Irma Aired argues that she was deprived of her Sixth Amendment right to counsel when the district court disqualified her original attorney and counsel of choice, John F. Daniel. Because Daniel represented both Irma Aired and her ex-husband and coconspirator, Charlie Aired, and the government had suggested that one of Daniel’s former clients might testify against Charlie Aired, the district judge conducted a hearing approximately six weeks prior to trial to determine whether there was a conflict of interests. Although Irma Aired purported to waive any conflicts that might result from Daniel’s representing Charlie Aired and her, the district judge, after questioning her, was not convinced that her waiver was knowing and intelligent. Accordingly, the district judge entered a order stating that Daniel could represent either Irma Aired or Charlie Aired but not both. As a result, Irma Aired and Charlie Aired each engaged different counsel; neither retained Daniel. Charlie Aired subsequently pled guilty and, consequently, was not Irma Alred’s codefendant at trial. In retrospect after trial and her conviction, Irma Aired now contends that the perceived conflict at the time of the hearing was potential, not actual, and, therefore, that Daniel should have been permitted to represent her.

“[W]hile the right to select and be represented by one’s preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.” Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 1697, 100 L.Ed.2d 140 (1988). In cases of joint representation, the Federal Rules of Criminal Procedure direct that a trial judge “promptly inquire with respect to such joint representation” and “personally advise each defendant of the right to the effective assistance of counsel, including separate representation.” Fed.R.Crim.P. 44(c); see Wood v. Georgia, 450 U.S. 261, 272, 101 S.Ct. 1097, 1104, 67 L.Ed.2d 220 (1981) (reversing a conviction because the trial court failed to inquire into defense counsel’s potential conflict of interest even though the court “should have been aware of the problem”). The danger in representing conflicting interests is not only in what an advocate does but also in what the attorney must refrain from doing at possible pretrial plea negotiations, trial, and sentencing. See Burden v. Zant, 24 F.3d 1298, 1305-06 (11th Cir.1994). Absent apparent good cause to believe that there is no potential conflict of interest, the trial court must take appropriate measures to protect each defendant’s right to counsel. See Fed.R.Crim.P. 44(c). Although “a defendant may waive his right to the assistance of an attorney unhindered by a conflict of interests,” Holloway v. Arkansas, 435 U.S. 475, 483 n. 5, 98 S.Ct. 1173, 1178 n. 5, 55 L.Ed.2d 426 (1978), “such waivers are not to be lightly or casually inferred and must be knowingly and intelligently made,” United States v. Alvarez, 580 F.2d 1251, 1259 (5th Cir.1978). Our circuit recognizes that a defendant’s waiver of conflict-free counsel is constitutional when “a defendant after thorough consultation with the trial judge knowingly, intelligently and voluntarily ... waive[s] this protection.” United States v. Garcia, 517 F.2d 272, 278 (5th Cir.1975); see United States v. Zajac, 677 F.2d 61, 63 (11th Cir.1982) (per curiam) (recognizing that Garcia established a procedure for determining a valid waiver of conflict-free counsel). The record must show “that the defendant was aware of the conflict of interest; realized the conflict could affect the defense; and knew of the right to obtain other counsel.” United States v. Rodriguez, 982 F.2d 474, 477 (11th Cir.1993) (per curiam).

Furthermore, “a district court must pass on the issue whether or not to allow a waiver of a conflict of interest by a criminal defendant not with the wisdom of hindsight after the trial has taken place, but in the murkier pre-trial context when relationships between parties are seen through a glass, darkly.” Wheat, 486 U.S. at 162, 108 S.Ct. at 1699. Therefore, district judges are “allowed substantial, latitude in refusing waivers of conflicts of interest not only in those rare eases where an actual conflict may be demonstrated before trial, but in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses.” Id. at 163, 108 S.Ct. at 1699. At the pretrial hearing devoted to determining whether Daniel could represent both Irma Aired and Charlie Aired, the district judge was confronted with Irma Alred’s desire to retain her counsel, who not only had represented a potential government witness but also who represented two eodefendants with apparent conflicting interests. It is inconsequential to our review that Charlie Aired pled guilty and did not go to trial. We view the testimony and evidence presented to the district judge at the time of the hearing concerning the conflict of interests in Daniel’s representing both Irma Aired and Charlie Aired.

Irma Alred’s responses to the district judge’s questions concerning the conflicting interests involved in Daniel’s representing both Charlie Aired and her demonstrate that she did not understand the potential detriment to her case if Daniel continued to represent these codefendants who clearly had conflicting interests as coconspirators and former spouses. Because her answers do not show a knowing and intelligent waiver of conflicting interests inherent in representing eodefendants, the district judge acted within his discretion in declining to accept Irma Alred’s waiver. See Wheat, 486 U.S. at 164, 108 S.Ct. at 1700. Contrary to Irma Alred’s contention that the district judge disqualified Daniel from representing her, the district judge ordered that Daniel could not represent both Irma Aired and Charlie Aired, eodefendants with conflicting interests. Either Irma Aired or Charlie Aired was free to continue with Daniel’s representation. Instead, both chose to engage different counsel. Significantly, because Charlie Aired obtained another attorney, the district judge’s order would not have precluded Irma Alred’s continued representation by Daniel. At the time of the hearing concerning Daniel’s joint representation of Irma Aired and Charlie Aired, however, the district judge properly acted within his discretion in declining to allow Daniel to continue to represent Irma Aired and Charlie Aired because her purported waiver of conflicting interests was not knowing and intelligent.

2. Use of Grand Jury Testimony

Roy Aired argues that the district judge erred in admitting the grand jury testimony of Dale Sconiers, who testified concerning the Holmes County marijuana distribution conspiracy before the grand jury the week prior to trial in this case. Because Sconiers had refused to talk to the government about his knowledge of the marijuana operation in Holmes County, he was subpoenaed to testify before the grand jury. Sconiers and Gwen Stewart appeared as witnesses before the grand jury on September 15, 1994, three days before the commencement of the trial involving Roy Aired. The government provided Roy Alred’s counsel with copies of the grand jury testimony of Sconiers and Stewart the night after the second day of trial on September 20,1994.

At the beginning of the third day of trial, Roy Alred’s attorney objected to the use of the testimonies of Sconiers and Stewart and unsuccessfully moved to quash, limit or exclude the testimonies of these two witnesses. Roy Alred’s counsel alleged that the government improperly had used the grand jury as a means of discovery against individuals who had been indicted and were going to trial the next week. Following Sconiers’s trial testimony, Roy Alred’s counsel moved for a mistrial on the same grounds; the district judge denied the motion.

The grand jury investigation of the extensive marijuana distribution operation in Holmes County was ongoing. Review of Sconiers’s grand jury testimony reveals that the government’s purpose in questioning him was to obtain information on the participation of Jim Aired, who was unindicted at the time of the trial involving Roy Aired. Because Sconiers knew both Jim Aired and Roy Aired, his grand jury testimony described his knowledge of the participation of both men in the marijuana distribution operation. Significantly, Jim Aired and others were indicted and prosecuted after the trial involving Roy Aired.

To perform its public responsibility, a grand jury has broad investigative authority in determining whether a crime has been committed and in identifying the perpetrators. See United States v. Calandra, 414 U.S. 338, 344, 94 S.Ct. 613, 618, 38 L.Ed.2d 561 (1974). A grand jury investigation is not complete until all clues have been exhausted and every witness examined. ’ See id. “[T]he law presumes, absent a strong showing to the contrary, that a grand jury acts within the legitimate scope of its authority.” United States v. R. Enters., Inc., 498 U.S. 292, 300, 111 S.Ct. 722, 728, 112 L.Ed.2d 795 (1991). When it. is shown that a subpoena might assist the grand jury in its investigation, the subpoena- should issue, even though the prosecutor possibly will use the information procured for a purpose other than obtaining evidence for the particular grand jury investigation. See In re Grand Jury Proceedings No. 92-1, 42 F.3d 876, 878 (4th Cir.1994). Although the government may not use a grand jury for discovery concerning a pending prosecution, it may continue an investigation from which information relevant to a pending prosecution “may be an incidental benefit.”- United States v. Beasley, 550 F.2d 261, 266 (5th Cir.1977); see Beverly v. United States, 468 F.2d 732, 743 (5th Cir.1972).

In this case, Sconiers would not talk with the government until he received his grand jury subpoena and an offer of immunity. When Roy Alred’s attorney moved to exclude Sconiers’s testimony, the Assistant United States Attorney explained to the district judge that the government became aware of Sconiers’s information concerning Roy. Aired during its investigation of the activities of Jim Aired in the Holmes County marijuana distribution operation. She explained that she did not know what Sconiers’s testimony would be and that she expeditiously provided defense counsel a transcript of Sconiers’s testimony regarding Roy Aired. After reviewing Sconiers’s grand jury testimony, hearing his trial testimony, and considering the relevant law, the district judge determined that Jim Aired was the target of the grand jury investigation when Sconiers was subpoenaed to testify and that there was no misuse of the grand jury process in this case that would preclude his trial testimony.

We agree and conclude that the proximity in time of Sconiers’s testimony before the grand jury to the trial in this case was coincidental. Because Sconiers had refused to cooperate with the government investigation of the extensive marijuana distribution operation'in Holmes County until he was subpoenaed by the grand jury and received immunity, obtaining ■ his testimony was delayed. In addition to trying the ease in which Roy Aired was convicted, the government continued to conduct its investigation of the extensive marijuana distribution conspiracy in Holmes County, which resulted in the indictment and prosecution of others, including Jim Aired. Because the government did not know what Sconiers’s testimony would be, it could not have known that he would describe involvement of Roy Aired in the marijuana distribution conspiracy. The Assistant United States Attorney promptly provided the transcript of Sconiers’s grand jury testimony to defense counsel prior to his testimony at trial.

After reviewing the record in this case, we conclude that the primary purpose of Sconiers’s testimony before the grand jury was to obtain information concerning Jim Alred’s involvement in the marijuana distribution organization as part of the government’s continuing investigation of this conspiracy. Because Seoniers’s testimony regarding Roy Aired was an incidental benefit of this ongoing investigation rather than a substitute for discovery, we determine that there was no misuse of the grand jury process in using Sconiers’s testimony at Roy Alred’s trial. See United States v. Jenkins, 904 F.2d 549, 559 (10th Cir.1990) (concluding that the government had not used the grand jury process as a substitute for discovery in a pending prosecution). Roy Aired has presented no strong evidence to the contrary to cause us to deviate from our presumption that the government acted within the scope of its authority. See R. Enters., 498 U.S. at 300, 111 S.Ct. at 728; Jenkins, 904 F.2d at 559-60. Accordingly, the district judge did not err in refusing to exclude Sconiers’s trial testimony concerning Roy Alred.

3. Single Conspiracy

Irma Aired and Roy Aired argue that the proof at trial showed the existence of multiple conspiracies and, therefore, was inconsistent with the single marijuana distribution conspiracy charged in the indictment. Both allege that they were involved in marijuana distributions with some coconspirators but not others. To demonstrate the multiple conspiracies, they contend that the evidence at trial revealed competition among the conspirators, particularly following the divorce of Irma and Charlie Aired, after which different allegiances among the coconspirators developed. Irma Aired and Roy Aired represent that the possibility that the jury may have attributed to each of them marijuana distribution conspiracies in which they were not involved resulted in substantial prejudice to them and, consequently, deprived them of a fair trial.

We do not reverse convictions because a single conspiracy is charged in the indictment while multiple conspiracies may have been revealed at trial unless the variance is material and substantially prejudiced the defendants. See United States v. Coy, 19 F.3d 629, 633 (11th Cir.1994) (per curiam). “A material variance between an indictment and the government’s proof at trial occurs if the government proves multiple conspiracies under an indictment alleging only a single conspiracy.” United States v. Castro, 89 F.3d 1443, 1450 (11th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 965, 136 L.Ed.2d 850 (1997). Because the jury determines the question of fact as to whether the evidence establishes a single conspiracy, the arguable existence of multiple conspiracies does not constitute a material variance from the indictment if, viewing the evidence in the light most favorable to the government, a reasonable trier of fact could have found that a single conspiracy existed beyond a reasonable doubt. See United States v. Adams, 1 F.3d 1566, 1584 (11th Cir.1993); United States v. Reed, 980 F.2d 1568, 1581 (11th Cir.1993). Accordingly, we will not disturb the determination of the jury that a single conspiracy exists if supported by substantial evidence. See United States v. Calderon, 127 F.3d 1314, 1327 (11th Cir.1997). To decide whether the jury could have found a single conspiracy, we review “(1) whether a common goal existed; (2) the nature of the underlying scheme; and (3) the overlap of participants.” Id.

The evidence in this case showed that the coconspirators purchased marijuana during the time that the marijuana distribution conspiracy existed from deliveries that were arranged principally by Irma Aired, who had connections for obtaining the marijuana. The record further reveals various marijuana distribution transactions in which both Irma Aired and Roy Aired participated. These transactions were substantiated by eyewitnesses, cooperating coconspirators, and tape-recorded conversations. All of the participants in the conspiracy shared a common goal of distributing marijuana, which, for some, included its transportation. It is irrelevant that particular conspirators may not have known other conspirators or participated in every stage of the conspiracy; all that the government must prove to establish conspiracy liability is an agreement or common purpose to violate the law and intentional joining in this goal by the coconspirators. See United States v. Cole, 755 F.2d 748, 764 (11th Cir.1985). “If there is one overall agreement among the various parties to perform different functions in order to carry out the objectives of the conspiracy, then it is one conspiracy.” United States v. Perez, 489 F.2d 51, 62 (5th Cir.1973).

Similarly, the various marijuana distribution transactions were virtually the same. Both Irma Aired and Roy Aired consistently participated in a distribution chain where marijuana was obtained in Texas, transported to Florida, and sold in Holmes County. Throughout the conspiracy, there was an overlap of many of the participants, particularly, Irma Aired, Roy Aired, and Charlie Aired. These facts demonstrate substantial evidence from which a reasona.ble.jury could have concluded that a single, ongoing conspiracy existed for a period of ten years as charged in the indictment. See Calderon, 127 F.3d at 1327-28.

Our test for material variance and substantial prejudice to the defendant is stated in the conjunctive. Consequently, determining that there was no material variance because substantial evidence was presented for the jury to have found a single conspiracy necessarily ends our inquiry into the alleged variance between the indictment and the evidence at trial. See id. at 1328. Nevertheless, we emphasize that “[v]ariance from an indictment is not always prejudicial, nor is prejudice assumed.” United States v. Ard, 731 F.2d 718, 725 (11th Cir.1984). To demonstrate substantial prejudice, Irma Aired and Roy Aired respectively would have to show “1) that the proof at trial differed so greatly from the charges that [each] appellant was unfairly surprised and was unable to prepare an adequate defense; or 2) that there are so many defendants and separate conspiracies before the jury that there is a substantial likelihood that the jury transferred proof of one conspiracy to a defendant involved in another.” Calderon, 127 F.3d at 1328 (emphasis added). Neither Irma Aired nor Roy Aired has represented that she or he was surprised by the evidence at trial. Both were well aware of most of the evidence before trial. For example, they used the tape-recorded conversations to argue that they were competitors during the later stages of the conspiracy.

Furthermore, only five defendants went to trial in this. ease. Irma Aired consistently was portrayed as the original distributor with Mexico/Texas connections. She arranged to transport marijuana to the Holmes County* area. Nothing in the record suggests that the jury would have been confused or misled by the evidence at trial. Additionally, we note that neither Irma Aired nor Roy Aired moved to sever her or his trial because of concern that the jury would interrelate their criminal acts.

In its ease-in-chief, the government presented evidence that, while the divorce of Irma and Charlie Aired resulted in competition among some of the coconspirators during the later stages of the conspiracy, the goal of obtaining and distributing marijuana through known sources remained the same. Disagreements among participants in a conspiracy does not mean that they have not been and continued to be involved in the overall conspiracy. The conspirators in this marijuana distribution were a relatively small and closed group, essentially Aired family members. The defense presented no evidence that either Irma Aired or Roy Aired legally withdrew from the conspiracy. To the contrary, both continued to distribute marijuana from Texas until they were indicted. Even if there had been a variance between the single marijuana distribution conspiracy charged in the indictment and the evidence at trial, neither Irma Aired nor Roy Aired has demonstrated substantial prejudice to her or his case that resulted in their respective convictions; thus, any purported variance is immaterial. See Calderon, 127 F.3d at 1328; United States v. Champion, 813 F.2d 1154, 1168 (11th Cir.1987). Accordingly, Irma Aired and Roy Alred’s challenge to their convictions based on the alleged variance between the single conspiracy charged in the indictment and the evidence at trial is meritless.

B. Sentencing Issues

1. Accountable Amounts of Marijuana

Irma Aired and Roy Aired argue that the district court erred in calculating the amounts of marijuana for which they were