Misconduct that occurs after the charged conduct is admissible to prove intent

United States v. Tennison, 2021 WL 4168214 (10th Cir. Sept 14, 2021) (KS): In this decisicion about a Kansas methamphetamine conspiracy, the panel finds post-conspiracy misconduct is admissible to establish the accused’s intent to participate in an earlier unlawful criminal enterprise and concludes that evidence in conjunction with other testimony is sufficient to support the conspiracy charge. It also affirms the sentence that is much longer than that imposed on the other participant on the grounds that the other participant cooperated. The government charged Tennison with conspiracy to possess with intent to distribute and possession with intent to distribute more than 50 grams of methamphetamine. At trial, a buyer, Job, testified that she called the ‘drug organization’s’ supplier on behalf of Tennison. She said “someone wanted to buy a kilo of meth for $11,000.” Job was told that much wasn’t available but a 1/4 kilo was for $2500. After Tennison agreed, Job then arranged the sale. She and Tennison met with couriers from the organization in a grocery store parking lot. One of them got into her pickup truck and sold Tennison the meth for $2500. Unbeknownst to them, law enforcement was watching. They pulled them over, ordered Tennison out of the truck and as he stepped out the meth fell out of his pants. Tennison was not arrested then but a warrant for his arrest was issued after the indictment was filed. Six months later, law enforcement went looking for Tennison. They waited outside a house where they thought he could be found. When he pulled up, he was stopped and arrested. Inside the car officers saw hypodermic needles, digital scales and packaging material in “plain view.” During the search they found over a kilo of meth packaged separately in numerous baggies. Tennison wasn’t charged with the meth found in the car but the trial court ruled under Fed.R.Evid. 404(b), the government could present that evidence at trial. In its view, this evidence “helped illuminate his intentions” when he purchased methamphetamine earlier. On appeal Tennison argued the district court shouldn’t have admitted this evidence because the dissimilarities between each alleged possession made the latter irrelevant for Rule 404(b) purposes. The panel disagreed. It explained that an extrinsic act’s similarity to the charged offense is the “linchpin” of the Rule 404(b) analysis. Similarity is assessed through factors like temporal and geographical proximity but admissibility does not depend on those factors being identical. Here, the panel said, similarity “turns on whether the district court could find it more likely than not that Tennison had the same state of mind with respect to the drugs he possessed” on the earlier date and as he did on the later date. Tennison first tried to buy a kilo of meth but got only a 1/4 kilo. A year later he had digital scales, packaging material and over a kilo of meth in assorted baggies. His subsequent possession was relevant to the earlier purchase because it showed “his intent regarding” that meth. It was then up to the jury to decide whether that evidence proved beyond a reasonable doubt the intent element of the crime. The panel added that Fed.R.Evid. 403 did not bar the admission of this extrinsic evidence. Because Tennison argued at trial that the meth he purchased through Job was for personal use, the government was “forced to produce evidence of his intent to distribute.” Although this evidence was prejudicial, it was not unfairly so because it didn’t “subordinate a juror’s reason to his or her emotions.” Tennison also argued that the government’s conspiracy evidence was insufficient to sustain the conviction. Because he was a one-time customer of Job’s, no reasonable juror could have found that he was a member of the larger conspiracy. Specifically, the government did not prove he knew the “essential objectives of the conspiracy,” nor that he “knowingly and voluntarily involved himself with the conspiracy.” Not so, said the panel. A defendant’s participation “may be slight” and “may be inferred by the defendant’s actions.” Even a “single transaction can prove a defendant’s participation in a conspiracy.” Here, the “circumstances of his purchase” prove his “active participation.” Job and the supplier were members of the conspiracy. Tennison asked Job to use her connections to help him purchase methamphetamine. When the courier got into her truck and Tennison paid for the drugs, he “actively participated in the transaction” by paying the drugs. “A reasonable trier of fact could [thereby] infer Tennison’s knowledge of the conspiracy’s objective to distribute meth as well as his voluntary participation in the conspiracy.” Tennison doesn’t benefit from the buyer-seller rule because that rule doesn’t apply when the buyer shares the conspiracy’s objective to distribute large quantities of drugs. Although Tennison claimed the amount he purchased was for personal use, government witnesses testified a 1/4 kilo was an amount consistent with distribution, not personal use. Finally, Tennison argued that the court’s imposition of a 175 month prison term was substantively unreasonable. Given that he and Job played a similar role in the conspiracy and she got only 21 months, his sentence should have been closer to hers. The panel pointed out that Job pleaded guilty and cooperated with the government. Thus, Tennison and Job were not similarly situated and their differing prison terms are both understandable and reasonable.