Argued May 29, 2015.
[Copyrighted Material Omitted]
Appeal from the United States District Court for the Western District of New York. No. 11-cr-85-1 -- Richard J. Arcara, Judge. Appeal from a judgment of the United States District Court for the Western District of New York (Arcara, J.), convicting Defendant-Appellant Dewey Taylor, following a jury trial, of one count of conspiracy to distribute cocaine in violation of 21 U.S.C. § § 841 and 846, and seven counts of transaction structuring for the purpose of evading currency reporting requirements in violation of 31 U.S.C. § 5324 . We AFFIRM the judgment of conviction as to the conspiracy to distribute cocaine, REVERSE the judgment of conviction as to the transaction structuring counts, and REMAND for resentencing.
LAWRENCE D. GERZOG, New York, NY, for Defendant-Appellant.
JOSEPH J. KARASZEWSKI, Assistant United States Attorney, for William J. Hochul, Jr., United States Attorney for the Western District of New York, Buffalo, NY, for Appellee.
Before: POOLER, LOHIER, and DRONEY, Circuit Judges.
Droney, Circuit Judges :
Defendant-Appellant Dewey Taylor appeals from a judgment entered in the United States District Court for the Western District of New York (Arcara, J. ), following a jury trial, convicting him of one count of conspiracy to distribute or possess with the intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. § § 841(a)(1), 841(b)(1)(B), and 846, and seven counts of transaction structuring for the purpose of evading currency reporting requirements in violation of 31 U.S.C. § 5324(a)(1) and (a)(3).
Taylor argues that his conviction for the cocaine conspiracy must be vacated because it constituted a constructive amendment of the indictment, which charged a conspiracy involving a larger amount -- five kilograms or more -- of cocaine. Taylor also argues that there was insufficient evidence to allow a jury to reasonably infer an intent to evade the currency reporting requirements because the evidence did not establish a pattern of structured transactions sufficient to indicate that intent.
We AFFIRM the judgment of conviction as to the cocaine conspiracy count, but REVERSE as to the transaction structuring counts, and REMAND for resentencing.
Taylor was a member of the Afro Dogs Motorcycle Club, a national motorcycle and social club. Taylor, along with his co8 defendants John Smith and Ricky Allen, held various leadership positions in the Buffalo, New York chapter of the club.
In the fall of 2009, the Government began investigating Smith for his suspected involvement in trafficking cocaine, setting up a series of controlled buys at Smith's residence and the Afro Dogs' Buffalo clubhouse after a cocaine dealer was arrested
and informed the police that Smith was his supplier of cocaine. The Government presented evidence at trial that Smith regularly packaged and stored cocaine in Allen's house, where Smith also counted and stored cash ranging in amounts from $40,000 to more than $100,000.
The Government also presented evidence of Taylor's involvement in the drug operation. At Smith's request, Taylor delivered to Allen's house a package that contained a kilogram of powder cocaine and crack cocaine. Taylor stored the package in Allen's basement. On two or three other occasions, Taylor helped Smith count money from drug proceeds in Allen's kitchen.
Taylor was charged, along with Smith, Allen, and nine others, in a November 2010 indictment with conspiracy to distribute and possess with the intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. § § 841(a)(1), 841(b)(1)(A), and 846. Taylor alone was charged with thirteen counts of transaction structuring for the purpose of evading currency reporting requirements under 31 U.S.C. § § 5313(a), 5324(a)(1), and 5324(a)(3).
At the defendants' trial, the Government called seventeen witnesses, including Allen, to testify about the drug conspiracy. Allen had pled guilty and was a cooperating witness for the Government. The Government also presented evidence of the drug conspiracy obtained through wiretaps authorized on Smith's phones, including conversations between Smith and Taylor. Taylor called no witnesses.
In support of the structuring counts, the Government called two witnesses and introduced Taylor's credit union records.
Following the close of evidence, Taylor moved pursuant to Federal Rule of Criminal Procedure 29(a) for a judgment of acquittal on the drug conspiracy count as well as the structuring counts. The Government moved to dismiss six of the structuring counts, as it conceded it had presented no evidence as to those counts. The court granted the Government's motion as to those six counts and denied Taylor's motion as to the drug conspiracy count and the remaining seven structuring counts.
The jury convicted Taylor of the drug conspiracy count for the amount of 500 grams or more of cocaine and of all seven structuring counts. The court sentenced Taylor to 144 months' imprisonment on the drug conspiracy count and to sixty months' imprisonment on each of the transaction structuring counts, to be served concurrently with one another and with the 144 month sentence on the drug conspiracy count.
I. Constructive Amendment of the Drug Conspiracy Count
The district court instructed the jury that to prove the drug ...