from the United States District Court for the District of
Kansas (D.C. Nos. 2:12-CR-20066-KHV-JPO-30 and
Rabindranath Ramana, Calvert Law Firm, Oklahoma City,
Oklahoma, for Defendant-Appellant.
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
HARTZ and PHILLIPS, Circuit Judges. [*]
PHILLIPS, CIRCUIT JUDGE.
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.
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.
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
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).
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.
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.
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
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.
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.
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. 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.
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).
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).
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.
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.
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.
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.
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.
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.
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 at 921 Haskell and
elsewhere. 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.
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
Evidence of Drug-Involved Premises
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
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.
Evidence of Firearm Possession in Furtherance of Drug
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.
Jury Instructions and Verdict Form
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
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
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.
Opening Statement and Closing Arguments
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.
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.
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
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.
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.
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.
Ellis's Request for New Counsel
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.
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.
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