from the United States District Court for the District of
Kansas (D.C. No. 2:12-CR-20083-KHV-1)
E. Bailey, Conlee, Schmidt & Emerson, L.L.P., Wichita,
Kansas, for Defendant-Appellant.
N. Capwell, Assistant United States Attorney (Thomas E.
Beall, Acting United States Attorney, with her on the
briefs), Office of the United States Attorney, Kansas City,
Kansas, for Plaintiff-Appellee.
LUCERO and BACHARACH, Circuit Judges. [*]
BACHARACH, Circuit Judge.
Dahda was convicted of crimes growing out of an alleged
marijuana distribution network centered in Kansas. The
convictions resulted in a sentence of imprisonment and a fine
of $16, 985, 250. On appeal, Los presents six challenges to
the convictions and sentence:
1. The evidence was insufficient to prove the conspiracy
charged in count one.
2. An unconstitutional variance existed between (a) the
single, large conspiracy charged in count one and (b) the
trial evidence, which showed numerous smaller conspiracies.
3. The district court erred in denying a motion to suppress
wiretap evidence because the wiretap authorization orders had
allowed law enforcement to use stationary listening posts
outside of the issuing court's territorial jurisdiction.
4. The district court failed to instruct the jury that
maintenance of drug-involved premises is committed only if
storing or distributing drugs constitutes a principal or
primary purpose for the defendant's maintenance of the
5. The district court violated the Constitution by sentencing
Los to 189 months' imprisonment on count one without a
jury finding on the marijuana quantity.
6. The district court erred in imposing a $16, 985, 250 fine.
reject Los's first five challenges and agree with the
sixth challenge. With these conclusions, we affirm the
convictions, affirm the sentence of 189 months'
imprisonment on count one, and vacate the fine of $16, 985,
The Drug Distribution Network
charges arose from a large drug-distribution operation that
had been manned by over 40 individuals. These individuals
obtained marijuana from California and distributed the
marijuana in Kansas.
operation began in 2006 when Mr. Chad Bauman, Mr. Peter Park,
and Mr. Wayne Swift began working together to distribute
marijuana in Kansas. At first, the individuals obtained their
marijuana from Texas and Canada. Eventually, however, the
three individuals changed sources and began obtaining their
marijuana from California.
Bauman, Mr. Swift, or another member of the group would drive
or fly to California, buy the marijuana, package it, store it
in a California warehouse, and ship or drive the marijuana to
allegedly joined the network as an importer and a dealer. In
these roles, Los helped to facilitate the transactions by
• driving money from Kansas to California for someone in
the group to buy the marijuana,
• assisting with the purchase and packaging of marijuana
• loading marijuana into crates for shipment to Kansas,
• selling the marijuana in Kansas to individuals who
redistributed the marijuana to others.
network operated for roughly seven years, but the
relationships and work assignments varied over time. For
instance, when a dispute arose, Mr. Bauman stopped working
with Mr. Park and Mr. Swift. Nonetheless, Los continued to
work with Mr. Bauman to acquire marijuana in California and
transport the marijuana to Kansas for distribution there.
About a year later, Los and Mr. Bauman stopped working
together. At that point, Los resumed working with Mr. Park
and Mr. Swift as the three individuals continued to acquire
marijuana from California and distribute the marijuana in
government began investigating the drug network in 2011. As
part of that investigation, the government obtained wiretap
authorization orders covering telephones used by suspected
members of the network. Ultimately, Los was convicted on 15
Sufficiency of the Evidence
charged Los and 42 others with a conspiracy encompassing 1,
000 kilograms or more of marijuana. See 21 U.S.C.
§§ 841(a)(1), (b)(1)(A)(vii), 846, 856; 18 U.S.C.
§ 2. Los argues that the trial evidence
established only a series of smaller conspiracies rather than
a single conspiracy involving 1, 000 kilograms or more of
marijuana. We disagree.
review sufficiency of the evidence, we engage in de novo
review, considering the evidence in the light most favorable
to the government to determine whether any rational jury
could have found guilt beyond a reasonable doubt. United
States v. Yehling, 456 F.3d 1236, 1240 (10th Cir. 2006).
In engaging in this review, we consider all of the evidence,
direct and circumstantial, along with reasonable inferences.
Id. But we do not weigh the evidence or consider the
relative credibility of witnesses. United States v.
Wells, 843 F.3d 1251, 1253 (10th Cir. 2016).
prove a conspiracy, the government had to show that (1) two
or more persons agreed to violate the law, (2) Los knew the
essential objectives of the conspiracy, (3) Los knowingly and
voluntarily participated in the conspiracy, and (4) the
alleged co-conspirators were interdependent. See United
States v. Wardell, 591 F.3d 1279, 1287 (10th Cir. 2009).
Determining the presence of these elements is a factual issue
for the jury. See United States v. Dickey, 736 F.2d
571, 581 (10th Cir. 1984) ("It is essential to emphasize
initially that the question whether there existed evidence
sufficient to establish a single conspiracy is one of fact
for the jury to decide."). This issue turns here on the
existence of a common, illicit goal. See id. at 582.
Sufficiency of the Evidence on a Single Conspiracy Involving
1, 000 Kilograms or More of Marijuana
trial evidence was sufficient to show the existence of a
single conspiracy involving 1, 000 kilograms or more of
marijuana. In part, this evidence included testimony by
co-defendants Park, Swift, Bauman, Alarcon, Villareal, and
Mussat. Their testimony was corroborated by recorded
conversations, surveillance, seizures, and business records.
Together, this evidence showed that Los and others had
traveled to California to purchase marijuana, joined efforts
to transport the marijuana to Kansas, and coordinated the
delivery of marijuana after returning to Kansas. This
evidence was sufficient to show formation of a conspiracy
with a common goal between all of the participants to acquire
and distribute marijuana. See United States v.
Dickey, 736 F.2d 571, 582 (10th Cir. 1984); cf.
United States v. Edwards, 69 F.3d 419, 431 (10th Cir.
1995) (holding that unity of purpose was proven by evidence
that the defendants had pooled resources to
"periodically travel to Houston to purchase cocaine, and
divide the cocaine among the defendants upon return to
counters that the government failed to show a single
• the relationships between co-defendants sometimes
changed over the course of time and
• the evidence did not show interdependence among co-
arguments are unavailing.
first argument, Los points to a turnover in personnel as the
conspiracy progressed. For example, Los, Mr. Park, Mr. Swift,
and Mr. Bauman intermittently stopped and resumed doing
business with one another, and the suppliers and customers
occasionally changed. But changes in a conspiracy's
membership do not necessarily convert a single conspiracy
into multiple conspiracies. United States v.
Roberts, 14 F.3d 502, 511 (10th Cir. 1993).
some of the participants remained with the enterprise from
its inception until it was brought to an end, and others
joined or left the scheme as it went along, is of no
consequence if each knew he was part of a larger ongoing
conspiracy." United States v. Brewer, 630 F.2d
795, 800 (10th Cir. 1980). The membership changes would not
prevent a reasonable jury from finding Los's unity with
others in a scheme to distribute large quantities of
marijuana. See United States v. Dickey, 736 F.2d
571, 582 (10th Cir. 1984) (numerous marijuana and cocaine
transactions over a five-year period with varying
participants constituted a single conspiracy).
Los argues that the evidence was insufficient to show
interdependence among the co-conspirators.
"[Interdependence may be shown if a defendant's
actions facilitated the endeavors of other alleged
co-conspirators or facilitated the venture as a whole."
United States v. Acosta-Gallardo, 656 F.3d
1109, 1124 (10th Cir. 2011). In our view, the
government's evidence was sufficient for a finding of
marijuana network required various individuals to perform
different tasks, including growing marijuana in California,
transporting funds to California, buying marijuana in
California for distribution in Kansas, transporting the
marijuana to Kansas, picking up the marijuana in Kansas, and
distributing the marijuana in Kansas. See United States
v. Edwards, 69 F.3d 419, 431-32 (10th Cir.
1995) (using similar reasoning to conclude that the
government had established interdependence); United
States v. Watson, 594 F.2d 1330, 1340 (10th Cir.
1979) ("Where large quantities of [drugs] are being
distributed, each major buyer may be presumed to know that he
is part of a wide-ranging venture, the success of which
depends on performance by others whose identity he may not
even know."). We thus conclude that the evidence
established the element of interdependence.
Sufficiency of the Evidence on Los's Participation in the
trial evidence permitted the jury to find not only a single
conspiracy involving 1, 000 kilograms or more of marijuana
but also Los's participation in that conspiracy. For
instance, the trial testimony reflected eight facts:
1. Los traveled to California to purchase marijuana from the
group's suppliers. R. supp. vol. 1 at 3538, 3687,
4094-97, 4249-50, 4559-60, 5047-50.
2. Large quantities of marijuana were purchased on these
trips. Id. at 4102, 4348, 5083.
3. Los purchased marijuana in California for transportation
to Kansas. Id. at 4631, 4639, 4828-29.
4. Los drove money from Kansas to California to purchase
marijuana and drove newly acquired marijuana to the shipping
warehouse in California. Id. at 3446-47, 4310,
5. Los picked up marijuana that had been stored in the
California warehouse. Id. at 3306-07, 4260-61.
6. Mr. Park and Mr. Swift helped Los by shipping marijuana
from California to Kansas. In return, Los provided marijuana
on credit to Mr. Park and ...