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United States v. Ellis

United States Court of Appeals, Tenth Circuit

August 24, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
MARVIN LEE ELLIS, Defendant-Appellant.

         Appeal from the United States District Court for the District of Kansas (D.C. Nos. 2:12-CR-20066-KHV-JPO-30 and 2:06-CR-20180-KHV-1)

          Rabindranath Ramana, Calvert Law Firm, Oklahoma City, Oklahoma, for Defendant-Appellant.

          Carrie N. Capwell, Assistant United States Attorney (Barry R. Grissom, United States Attorney, with her on the brief), United States Attorney's Office, Kansas City, Kansas, for Plaintiff-Appellee.

          Before HARTZ and PHILLIPS, Circuit Judges. [*]


         In 2009, law-enforcement officials began investigating a Mexican cocaine-trafficking operation extending into the Kansas City area. This led them to several suspects, including Marvin Ellis, a low-level powder-cocaine buyer, who was working with two others to buy powder cocaine and cook at least some of it into cocaine base (crack cocaine) for resale. In 2012, Kansas police arrested Ellis after he fled from a traffic stop. At arrest, Ellis had a stolen handgun, miscellaneous drugs, and some drug-dealer paraphernalia. Later, based on this and separate evidence from the federal investigation, a federal grand jury charged Ellis with several drug and firearm felonies. The most serious charge against Ellis was for his conspiring with 49 other persons to manufacture, distribute, or possess with the intent to distribute at least 5 kilograms of powder cocaine and 280 grams of crack cocaine.

         After the jury convicted Ellis on all charges, the district court imposed consecutive sentences for the cocaine-conspiracy count and a firearm count and concurrent sentences for the remaining counts. Ellis received a sentence of life without release on the cocaine-conspiracy count (after applying a sentencing enhancement under 21 U.S.C. § 851 for his two earlier felony-drug-offense convictions), a mandatory-minimum five-year term for possession of a firearm in furtherance of a drug-trafficking crime under § 924(c), and statutory maximum sentences on all remaining counts. Later, the district court revoked Ellis's supervised release from a 2007 federal conviction and sentenced him to an additional consecutive 24 months' imprisonment.

         Ellis now appeals some of his convictions and sentences. In Appeal No. 14-3165, Ellis (1) challenges his convictions under 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A), 18 U.S.C. § 924(c), and 21 U.S.C. § 856; (2) argues that his life sentence for the conspiracy conviction violates the Fifth and Sixth Amendments; and (3) argues that the district court violated his Sixth Amendment right to counsel at sentencing. In Appeal No. 14-3181, Ellis challenges the consecutive sentence for his supervised-release violation, based on the district court's denying him substitute counsel.

         In Appeal No. 14-3165, we affirm all of Ellis's convictions and all of his sentences except one. Though we affirm Ellis's cocaine-conspiracy conviction, we reverse its accompanying life-without-release sentence because (1) the jury never found that Ellis was individually responsible for the charged amounts of powder or crack cocaine, either from his own acts or the reasonably foreseeable acts of his coconspirators; and (2) the government's evidence does not show that omitting this element was harmless beyond a reasonable doubt. In Appeal No. 14-3181, we affirm Ellis's sentence for violating his supervised release. We remand to the district court for a full resentencing, subject to resentencing on the cocaine-conspiracy count under 21 U.S.C. § 841(b)(1)(C).


         I. The Investigation

         In 2009, Drug Enforcement Administration (DEA) agents began investigating a Mexican cocaine-trafficking network that was supplying the Kansas City area. Agents learned that Mexican drug sources were shipping multi-kilogram deliveries of powder cocaine from Mexico into and near Kansas City. In addition, agents learned that some of this powder cocaine was going to local drug dealers, including Djuane Sykes, who was selling large amounts of cocaine to several customers from the 2200 block of Russell Avenue in Kansas City, Kansas.

         Among Sykes's many customers were Ataven Tatum and Marvin Ellis. In August 2011, Ellis had been released from prison to supervised release after serving time on a 2007 conviction for violating 18 U.S.C. § 924(c). By November 2007, Ellis had begun working with Tatum and Ellis's nephew, Theoplis Ellis (Theoplis), to buy powder cocaine from Sykes and cook at least some of it into crack cocaine for sale to their customers. Over the next few months, the three men worked together to sell drugs, including crack cocaine. They sold the drugs from different locations, including from a house at 921 Haskell Avenue. In October 2011, Ellis leased this residence, and in November, Tatum signed a contract for deed to buy it.

         II. Ellis's Arrest

         In late April 2012, a Kansas City, Kansas police officer, Patrick Locke, stopped Ellis for a traffic violation. After first pulling over to the roadside, Ellis sped away when Office Locke's partner approached the car. Officer Locke gave chase until Ellis crossed the Kansas state line into Missouri.

         Two weeks later, just after midnight on May 11, Officer Locke again stopped Ellis for a traffic violation. As before, Ellis pulled over but then sped away. Again, Officer Locke chased Ellis, this time at speeds up to 80 miles per hour. The chase ended when Ellis lost control of his car after it hit a curb. When his car came to rest, Ellis jumped from it and ran. During the ensuing foot chase, Officer Locke saw that Ellis was carrying a green plastic bag. When Ellis was subdued on the ground, Officer Locke saw Ellis holding his right hand in his waistband-causing Officer Locke to fear that Ellis had a gun. Officer Locke tasered Ellis, yet Ellis refused commands to remove his hand from his waistband. When Officer Locke threatened to shoot Ellis, Ellis dropped the green bag and threw a pistol about 10 to 15 feet away.

         After finally subduing and arresting Ellis, Officer Locke gathered Ellis's thrown gun-a stolen, loaded .40 caliber pistol. Officer Locke also collected Ellis's discarded green bag, which contained an empty sandwich-bag box, a digital scale, 2.5 grams of powder cocaine, about 32 grams of synthetic marijuana, 25.8 grams of PCP in a bottle, 3.1 grams of marijuana, 16 mollies (ecstasy/MDMA), and 8 Diazepam pills.

         III. The Charges

         In October 2012, a grand jury sitting in the District of Kansas issued a sweeping 112-count Second Superseding Indictment against 51 defendants, including Ellis, Tatum, and Theoplis.[1] In a vast cocaine-conspiracy count under 21 U.S.C. § 846, naming 50 defendants including Ellis (reaching all the way up to the Mexican cartel), the grand jury charged that the 50 defendants

[k]nowingly and intentionally conspired and agreed together and with each other, and with other persons known and unknown to the Grand Jury, to commit the following offenses against the United States: to manufacture, to possess with intent to distribute and to distribute 280 grams or more of cocaine base, "crack, " a controlled substance; and to possess with intent to distribute and to distribute five kilograms or more of a mixture and substance containing cocaine, a controlled substance; all in violation of Title 21, United States Code, Sections 841(a)(1), (b)(1)(A)(ii), (b)(1)(A)(iii) and Title 18, United States Code, Section 2.

R. vol. I (3165) at 547.

         Eight months after filing the Second Superseding Indictment, the government filed an Information under 21 U.S.C. § 851 to enhance Ellis's sentence. Because Ellis had two earlier convictions for felony drug offenses, the § 851 Information subjected him to an increased mandatory sentence-life without release-if he was convicted and sentenced for the conspiracy charge under 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A).[2]

         The Second Superseding Indictment also charged Ellis with six counts of knowingly and intentionally distributing crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), and aiding and abetting those offenses, in violation of 18 U.S.C. § 2; one count of maintaining a drug-involved premises, in violation of 21 U.S.C. § 856(a)(1)-(2); one count of knowingly and unlawfully possessing a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c); and one count of possessing a firearm as a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e).

         IV. Trial

         Ellis was tried with several coconspirators, some of whom pleaded guilty during the trial. In the end, Ellis proceeded to a jury verdict with three others: Robert Vasquez, Vernon Brown, and Kyle Stephen.

         A. Conspiracy Evidence

         The government sought to prove the cocaine-conspiracy count against Ellis by the testimony of several witnesses, including three cooperating witnesses, four law-enforcement officers who had arranged the controlled buys of crack cocaine from Ellis and Tatum, and other law-enforcement officers who had participated in the investigation.

         One government witness, Djuane Sykes, testified that he knew Ellis, Ataven Tatum, and Theoplis. Sykes said that in late 2011, Ellis and Tatum approached him to buy powder cocaine for resale. At this meeting, Sykes sold Ellis an ounce of cocaine for $700. Sykes also testified that Ellis-either for himself or for Tatum-continued to buy powder cocaine from him. Sykes said that Ellis sometimes bought half or full ounces of powder cocaine. Sykes never said how many times Ellis alone had bought powder cocaine from him. But Sykes did say that Ellis, when with Tatum, had bought powder cocaine from him "[m]aybe ten or 15 times." R. vol. IV (3165) at 1590. Each time, Ellis bought between a "half-ounce to a [sic] ounce of cocaine." Id. at 1589. In addition, Sykes said that Tatum bought a "half-ounce to three ounces" of powder cocaine from him "once or twice a week." R. vol. IV (3165) at 1587. Sykes also said that Tatum sent Ellis or Theoplis to pick up cocaine "[p]robably four or five times." Id. at 1590.

         Another government witness, Ralph Mayo, was a local drug dealer who confirmed that Ellis, Tatum, and Theoplis had bought powder cocaine from Sykes. Mayo testified that he had seen Ellis "a few times" buying cocaine from Sykes. R. vol. V (3165) at 1233. In addition, Mayo testified that Mayo had sold "probably between a [sic] ounce or two ounces" of powder cocaine to Ellis "[p]robably not more than two times." Id. at 1234-35.

         A third government witness, Theoplis, testified about his drug activities with Ellis and Tatum. Theoplis recalled once going with Ellis to buy powder cocaine from Sykes. In addition, Theoplis recalled that Tatum and Ellis had sent him to Sykes "two or three times" to pick up powder cocaine. Id. at 677. Though Theoplis did not say how much cocaine he bought during his solo trips or during his single trip with Ellis, he did say that he picked up "three and a half ounces, four" when Tatum and Ellis sent him to Sykes. Id. at 6776.

         Theoplis also testified that Tatum and Ellis cooked the powder cocaine into crack cocaine. The prosecutor asked, "once the powder cocaine was purchased, was it always cooked into crack cocaine?" Theoplis answered, "Yes, ma'am." Id. at 678. He further testified that after Tatum and Ellis bought powder cocaine from Sykes, they would "go back and cook the crack and cook the soft to hard." Id. at 673-74. But on cross-examination by Ellis's attorney, Theoplis admitted that he had seen Ellis cook crack cocaine just once, at Theoplis's father's house. Theoplis also answered affirmatively to the prosecutor's question asking him if he, Tatum, and Ellis had sold only crack cocaine and not powder cocaine. Theoplis never said how many times he sold crack cocaine, but he did say he sold "pieces" for ten or twenty dollars. Id. at 683.

         The government called Kansas City police officer Nathan Doleshal to testify about the controlled buys he had arranged in which informants bought crack cocaine from Ellis, Tatum, and Theoplis[3] at 921 Haskell and elsewhere.[4] During the controlled buys, an informant typically called Tatum or Ellis to arrange the buy and then bought the crack cocaine from either one or both of them. During the first controlled buy, on February 7, 2012, an informant bought 0.9 grams of crack cocaine from Ellis at 921 Haskell. The next day, the same informant bought another 0.7 grams of crack cocaine from Ellis and Tatum at 921 Haskell. On February 9, an informant bought 2.5 grams of crack cocaine from Ellis and Tatum, this time at a local grocery store. On February 10, informants bought 9.9 more grams of crack cocaine, this time purchased at an intersection and later another 1.2 grams of crack, this time at 921 Haskell.

         Law-enforcement officers also testified about more controlled buys in March 2012. On March 20, 2012, at a local pharmacy, an informant bought 3.4 grams of crack cocaine from Ellis. On March 23, at a local street intersection, an informant bought 6.7 grams of crack cocaine and some ecstasy pills from Ellis. All told, the controlled buys totaled 25.3 grams of crack cocaine.[5]

         B. Evidence of Drug-Involved Premises

         The government produced evidence that Ellis had maintained 921 Haskell as a place for manufacturing and selling crack cocaine. Although not specifying dates, Theoplis testified that Ellis had lived at 921 Haskell and sold crack cocaine, ecstasy, PCP, and marijuana there. Three of the controlled buys from Ellis happened at 921 Haskell, the last occurring on February 10, 2012. The government also produced wiretapped phone calls (some in March and April 2012) in which Ellis, Tatum, and Theoplis arranged crack-cocaine sales, and one call in which "[t]his young lady's [sic] called Ataven [Tatum] to pretty much tell her [sic] that Messy or Marvin Ellis was wanting some supplies to cook crack cocaine." See R. vol. III (3165) at 2270-88. In particular, Ellis supposedly was seeking a whisk to "blend the ingredients together." Id. at 2270.

         The evidence further showed that in October 2011, Ellis signed a lease agreement for 921 Haskell. The lease required Ellis to pay a $300 deposit and $600 for the first month's rent. Of this amount, Ellis paid $400, and Tatum paid $500. The next month, Tatum signed a contract for deed to buy the residence. When police officers searched 921 Haskell on May 30, 2012, they found a utility bill for service from April 13 to May 14, 2012, in Ellis's name. Though police had arranged controlled buys at 921 Haskell during this billing period, Ellis was not present for them-he had left the house after a falling out with Tatum. In an intercepted phone call on April 12, a caller asked Tatum "how Marvin Ellis is doing, " and Tatum responded that he had put Ellis out of the house. R. vol. III (3165) at 2287.

         C. Evidence of Firearm Possession in Furtherance of Drug Trafficking

         Officer Locke testified that at the arrest, Ellis had a stolen, loaded .40 caliber pistol, along with several kinds of illegal drugs, an empty sandwich-bag box, and a digital scale. Officer Locke testified that drug dealers use these items for drug sales. Theoplis testified that he had previously seen Ellis with this same pistol when selling drugs at 921 Haskell.

         D. Jury Instructions and Verdict Form

         Before closing arguments, counsel met with the district judge about jury instructions and a verdict form. During this conference, the district court remarked that it had "e-mailed a draft copy of the verdict [form] to all of the counsel of record." R. vol. V (3165) at 1452. The district court further mentioned that "the main feedback we got was that the verdict form should not include the drug amounts and I think that feedback is correct. So we've prepared a revised verdict form which omits any reference to the drug quantities." Id. The district court did not identify which counsel had provided this feedback.[6]

         After this, the district court asked all counsel, "Is there any objection to the revised form of the verdict?" Id. No one objected. In particular, Ellis's counsel responded, "None on behalf of Mr. Ellis, Your Honor." Id. Thus, for the cocaine-conspiracy count, the final verdict form asked the jury to determine Ellis's guilt only in the broad conspiracy and did not require the jury to say how much powder or crack cocaine it attributed (1) to the entire conspiracy or (2) to Ellis from his own acts and the reasonably foreseeable acts of his coconspirators.

         The jury instruction for the cocaine-conspiracy count listed the elements that "the government must prove beyond a reasonable doubt, " including one element requiring proof that "[t]he overall scope of the agreement involved more than 5 kilograms of cocaine or more than 280 grams of cocaine base, 'crack.'" R. vol. I (3165) at 1510. Another element required that "[w]hen defendant joined, he knew the essential objective of the agreement was to manufacture, to possess with intent to distribute or to distribute controlled substances in violation of federal drug laws[.]" Id. The next instruction stated that "[o]nce a person becomes a member of a conspiracy, he . . . is legally responsible for the acts of all other members in furtherance of the conspiracy, even if he . . . was not present or aware that the specific acts were being committed." Id. at 1513. Ellis did not object to these instructions. No instruction addressed reasonable foreseeability.

         E. Opening Statement and Closing Arguments

         In its opening statement and closing argument, the government argued Ellis's guilt based largely on the acts of the Mexican cocaine sources, including those sources supplying powder cocaine to Sykes.

         For instance, in its opening statement, the government named Ellis as one of "a variety of individuals who were engaged in drug trafficking in the Kansas City metropolitan area, " and then stated that "Mexican cartels use these public roadways to have large amounts of drugs transported from Mexico into the United States by a variety of ways." R. vol. III (3165) at 445. The government spoke about "trusted couriers based from cell heads" who were distributing drugs and "polluting our community." Id. at 445-46. It said that "[m]illions of dollars of drugs are coming in and millions of dollars of money are going out." Id. at 446. It tied small-time distributors of the cocaine-"street level dealers to mid-level dealers to large scale dealers"-to the cartel's supply. Id.

         And in its closing argument, the government returned to this theme, emphasizing the conspiracy-wide amounts of cocaine:

And I assert to you that it's not important that any particular defendant knew much at all about the overall scope of the conspiracy. It's irrelevant that Marvin Ellis didn't know a single Hispanic person on that chart. What's important is that any reasonable person knows that drugs like cocaine come from a source. And it's reasonable to conclude that the source would be a Hispanic source.

R. vol. V (3165) at 1475-76. For interdependence, the government asserted a relationship between Ellis and the cartel and its suppliers:

The suppliers rely upon people like Robert Vasquez to make sure that they can keep up getting a supply. Without people like Robert Vasquez taking money loads back to the south, they're [sic] aren't going to be sending up anymore [sic] supply. And without customers like Kyle Stephen and Vernon Brown and Marvin Ellis, the suppliers aren't going to have a business.

Id. at 1476.

         In his closing argument, Ellis's counsel tried to counter this by arguing that Ellis was a "very, very small minnow in a very large ocean and he is nowhere near at the level of the great white sharks that [the government] paraded through that witness stand." Id. at 1515.

         But in rebuttal, the government responded that "it doesn't matter if you're a little person, if you're a bottom feeder, you're still guilty of the conspiracy." Id. at 1558-59. The government stressed that it is "[p]eople like Marvin Ellis and Vernon Brown that keep people like Hector Aguilera in business." Id. at 1568. The government had earlier described Hector Aguilera as the "kingpin." Id. at 1482. It described the "scope of the overall conspiracy" as the quantities charged in the indictment, "[n]ot what each individual person was involved with." Id. at 1563.

         V. Ellis's Request for New Counsel

         While the probation office was completing its Presentence Investigation Report (PSR), Jay DeHardt, Ellis's counsel, moved to withdraw. DeHardt told the district court that Ellis had refused to read the PSR and had demanded that DeHardt no longer represent him. DeHardt told the court that Ellis had even accused him of conspiring with the government to convict him. In short, DeHardt said that Ellis refused to listen to him or cooperate.

         At a hearing on the motion, Ellis expressed his dissatisfaction with DeHardt's trial performance, complaining that DeHardt had not challenged the length of time in which Ellis was involved in the conspiracy and had not separated him from the broad conspiracy. Ellis asked the district court to appoint new counsel. The district court denied Ellis's request. The court acknowledged the breakdown of communication between Ellis and DeHardt but found Ellis responsible for "not reasonably trying to communicate" with DeHardt or to help DeHardt prepare a defense. R. vol. V (3165) at 1613. With that, the district court granted DeHardt's motion to withdraw.

         The district court then gave Ellis two options: he could hire a different attorney, or he could represent himself. The court strongly advised Ellis against self-representation and questioned Ellis's decision to proceed pro se:

Court: Do you want to represent yourself or do you want to ...

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