Appeal from the United States District Court for the Western District of Washington. D.C. No. CR-88-101-JET. Jack E. Tanner, District Judge, Presiding.
Before: Eugene A. Wright, Robert R. Beezer, and Charles Wiggins, Circuit Judges Opinion by Judge Wiggins.
Barbara Gail Harrison-Philpot ("Philpot") appeals her conviction and sentence for one count of conspiracy to distribute cocaine (21 U.S.C. § 846), seven counts of distributing or aiding and abetting the distribution of cocaine in furtherance of the conspiracy (21 U.S.C. § 841(a)(1) - (b)(1)(C)), one count of using a communication facility to facilitate the conspiracy (21 U.S.C. § 843(b) - (c)), and one count of using a firearm in connection with drug trafficking (18 U.S.C. § 924(c)(1)). The district court sentenced Philpot to 352 months in prison. She raises numerous challenges to the convictions, including constructive amendment of the indictment, insufficient indictment, wrongful admission of other acts evidence, and prosecutorial misconduct. Appellant also argues that the district court erred by basing her sentence upon an incorrect quantity of drugs and then enhancing it due to her role in the offense. We have jurisdiction under 28 U.S.C. § 1291. We affirm in part, reverse in part, and remand for resentencing.
Based on an informant's tip, law enforcement agents in Tacoma, Washington began investigating claims that Philpot ran a drug distribution ring from her home. Between March 9, 1988 and April 15, 1988, the agents, working with the informant, made seven separate purchases from the home; the total amount of cocaine involved was approximately 67 grams. On April 19, 1988, police and a SWAT team went to the home with a search warrant. After removing several people from the downstairs level, the agents were delayed from securing the house by sporadic gun fire and by a fire started by the inhabitants that eventually destroyed the house. The agents found cocaine paraphernalia and several firearms - but no cocaine - in the ruins.
Several days after the incident, the agents learned that the appellant's live in boyfriend, Richard Locken, who was seriously wounded during the confrontation at the house, had been the one actually supplying the cocaine to their contact. In an apparent attempt to discern Philpot's role in the scheme, an undercover officer wearing a recording device met with her on April 28, 1988. During the conversation, Philpot, the undercover officer and a confidential informant discussed the sale of one kilogram of cocaine, and Philpot acknowledged that she was involved in distributing cocaine from her home before the fire.
A federal grand jury returned an indictment charging Philpot with conspiracy to distribute cocaine, seven counts of distribution of cocaine, one count of using a communication facility in connection with the conspiracy, one count of using a firearm in connection with drug trafficking, and one count of witness intimidation. At trial, the government presented the testimony of numerous persons, including Locken, who lived in the house during the period charged in the conspiracy. The government also introduced, over objection, the tape recording of the post-fire conversation between Philpot and the undercover officer. Philpot, who was the sole defense witness, admitted that she was a drug addict, and conceded that she assisted in the drug distribution prior to the period charged in the indictment, but she claimed that she had nothing to do with the scheme after January 1988.
The jury found her guilty of conspiracy, seven counts of distribution, one count of using a communication facility, and one count of using a firearm, but acquitted her on the witness tampering charge. The district court, following the presentence report, found that the amount of cocaine actually involved in the crime was between 15 and 49.9 kilograms. With enhancements, the total offense level was 40, yielding (with a criminal history score of 0) a guideline range of 292-365 months. The district court imposed a sentence of 352 months in prison, and Philpot timely appealed.
I. CONSTRUCTIVE AMENDMENT OF THE INDICTMENT
Philpot argues that her fifth and sixth amendment rights were violated by a jury instruction that effectively amended the indictment by expanding the dates of the alleged conspiracy. Specifically, Philpot claims that the instruction stating that the jury must find that she joined the conspiracy "sometime on or before March 9, 1988," amounted to an impermissible constructive amendment of the indictment. The appellant concedes that, because no objection was made at trial, this court reviews the instruction for plain error.
In the indictment, the conspiracy dates were described as "beginning at a date unknown but as early as March 9, 1988, and continuing through on or about April 19, 1988." At trial, the appellant testified that she participated in the distribution scheme as late as January 1988, but that by February 1988, Richard Locken refused to let her play any role in the scheme.*fn1
The law in this Circuit concerning the precision with which an indictment must specify the dates of the alleged offense is somewhat amorphous. On the one hand, it is impermissible for an indictment to allege that an offense began "on or before" and ended "on or after" a certain date. United States v. Cecil, 608 F.2d 1294, 1297 (9th Cir. 1979). It is equally clear, however, that the indictment need not allege the date with exactness. See e.g., United States v. Brown, 720 F.2d 1059, 1076 (9th Cir. 1983) (indictment alleging that "transaction occurred during the first part of 1976" not defective); United States v. McCown, 711 F.2d 1441, 1450 (9th Cir. 1983) (distinguishing Cecil and holding that indictment alleging that conspiracy began "on or about" and ended "on or about" certain date sufficiently informed defendants of the charges); United States v. Rohrer, 708 F.2d 429, 435 (9th Cir. 1983) (approving indictment alleging that conspiracy "extended until 'at least' 1980"). Because the indictment places the alleged illegal activity within an identifiable time frame, it alleges the dates of the conspiracy with sufficient specificity.
The appellant argues, however, that the district court's conspiracy instruction effectively amended the indictment by telling the jury that it could find her guilty if the conspiracy was formed "sometime around March 9, 1988," and if Philpot joined the conspiracy "sometime on or before" that date.*fn2 In Cecil, this court held that an indictment containing such "on or before" language is impermissibly open-ended. Philpot argues that her case for reversal is even stronger because the impermissible language was introduced through a jury instruction, thereby preventing her from planning her defense to meet the charges in the indictment. In United States v. Laykin, 886 F.2d 1534 (9th Cir. 1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2586, 110 L. Ed. 2d 267 (1990), the appellant argued that a jury instruction extending the date of the conspiracy as listed in the indictment by two months required reversal. Id. at 1544. This court rejected the argument, stating that "it is clear that when time is not a material element of the offense, as is the case here, the court may constructively amend the indictment without running afoul of the Fifth Amendment." Id.
Laykin does not indicate what materiality means in this context. Whatever its precise import, in Philpot's case time is not an element of the conspiracy charge, and the statute of limitations is not at issue. Philpot cannot seriously maintain that she thought that she could admit involvement in the conspiracy right up to the indictment date and still escape liability. Indeed, Instruction No. 19, the "reasonably near" instruction, would almost certainly permit the jury to find Philpot guilty when she admitted being a member of the conspiracy within five weeks (i.e., from January until March 9) of the indictment date. Although this court has not indicated the precise reach of a "reasonably near" instruction's time frame, we find that five weeks falls safely within that time frame when time is not a material element of the offense.
The question then becomes whether the "on or before" language, which is impermissibly open-ended under Cecil, is so prejudicial as to require reversal. The concern in Cecil - namely, that the jury might find the defendant guilty of an offense other than the one that led the grand jury to return the indictment - simply is not present here. The jury had before it the appellant's admission that she was a coconspirator as late as January 1988, and they convicted her of the same conspiracy for which she was indicted, although the exact timing of the conspiracy remains unknown. Whatever the hypothetical reach of "on or before" in Cecil, it is not relevant to this case. By ...