75 F.

3d 1453

UNITED STATES of America, Plaintiff-Appellee,

v.
James Norwood HUTCHING, also known as Norwood, also
known as
"Cowboy", Defendant-Appellant.
No. 93-7043.

United States Court of Appeals, Tenth Circuit.

Feb. 5, 1996.

Joseph (Sib) Abraham Jr., El Paso, Texas, for Defendant-Appellant.

Robert J. Erickson, Attorney, Department of Justice, Washington, DC
(John Raley, United States Attorney, Sheldon J. Sperling and Paul G.
Hess, Assistant United States Attorneys, Muskogee, Oklahoma, with him
on the brief), for Plaintiff-Appellee.
Before SEYMOUR, Chief Judge, ANDERSON and KELLY, Circuit
Judges.
PAUL KELLY, Jr., Circuit Judge.

Defendant-appellant James Norwood Hutching challenges his convictions for

drug conspiracy, 21 U.S.C. 846 (Count 1); possession with intent to distribute
marijuana, 21 U.S.C. 841(a)(1), (b)(1)(B)(vii), and 18 U.S.C. 2 (Count 2);
possession with intent to distribute cocaine, 21 U.S.C. 841(a)(1), (b)(1)(A),
and 18 U.S.C. 2 (Counts 3-5); attempt to possess with intent to distribute
cocaine, 21 U.S.C. 841(a)(1), (b)(1)(A), 846, and 18 U.S.C. 2 (Count 6);
interstate travel to promote racketeering, 18 U.S.C. 1952, 2 (Counts 7-12,
28); conspiracy, 18 U.S.C. 371 (Count 13); interstate travel with intent to
commit murder, 18 U.S.C. 1958, 2 (Count 14); continuing criminal
enterprise, 21 U.S.C. 848(a) (Count 15); killing of an individual in
furtherance of a continuing criminal enterprise, 21 U.S.C. 848(a), (e)(1)(A),
and 18 U.S.C. 2 (Count 16); receipt or possession of an unregistered firearm,
26 U.S.C. 5861(d) and 18 U.S.C. 2 (Count 17); possession of a firearm after
a felony conviction, 18 U.S.C. 922(g), 924(a)(2) (Counts 18-20); possession

with intent to distribute marijuana, 21 U.S.C. 841(a)(1) and 18 U.S.C. 2

(Count 21); carrying a firearm during the commission of a drug trafficking
crime, 18 U.S.C. 924(c)(1) and 18 U.S.C. 2 (Count 22); money laundering,
18 U.S.C. 1956(a)(1)(A)(i), (a)(1)(B)(i), 2 (Counts 23-24); and distribution
of marijuana, 21 U.S.C. 841(a)(1) (Count 29). Our jurisdiction arises under 28
U.S.C. 1291. We remand to the district court with instructions to vacate Mr.
Hutching's conviction for drug conspiracy (Count 1); we affirm all the other
convictions.
Background
2

The basic facts of this case are set out in United States v. McCullah, 76 F.3d
1087, (10th Cir.1996), and need not be restated here.

Discussion
I. Caldwell Violation
3

Mr. Hutching claims that the trial court erred by informing the jury of the
possibility of appellate review. At the conclusion of voir dire, the trial judge,
explaining side bar conferences to the jury, stated in part:

4 that's the reason we have this conference, but it's always about things that I have
So
to decide, that I have to make decisions about. And the court reporter is always there
so it's taken down. There aren't any secrets. That's an official record. And if I make a
decision--for example, if we are over here discussing whether or not some evidence
ought to be admitted, some lawyer presents some evidence--asks a question and
there is an objection. And I say, "Well, let's talk about this over here." I seek their
advice over here. And if I say, "No, that's not a proper question, I'm not going to ask
it," but there is a record made of it, and if I was wrong about it, in error, then there is
an official record made of it. Somebody could appeal on that basis, if I've made a big
enough boo boo that the whole thing ought to be reversed, or a new trial, then it can
be. So I want you to know that even though we talk out of your hearing, that a record
is being made of everything that we talk about over here.
5

32 R. 84-85. Defense counsel timely objected to these statements by the trial

court. Mr. Hutching argues that these statements created the danger that the
jury would minimize its own role in the criminal process and deprived him of
due process and a fair trial.

Mr. Hutching relies on Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633,
86 L.Ed.2d 231 (1985), to support his contention that the trial court's remarks

were prejudicial. In Caldwell, the prosecutor stated to the jury in closing

argument of the penalty phase of a capital case:
7
Now,
[defense counsel] would have you believe that you're going to kill this man
and they know--they know that your decision is not the final decision. My God, how
unfair can you be? Your job is reviewable. They know it.... For they know, as I
know, and as Judge Baker has told you, that the decision you render is automatically
reviewable by the Supreme Court.
8

Caldwell, 472 U.S. at 325-26, 105 S.Ct. at 2638 (plurality opinion). Concluding
that such remarks lessened the jury's sense of responsibility for its decision, the
Supreme Court held that "it is constitutionally impermissible to rest a death
sentence on a determination made by a sentencer who has been led to believe
that the responsibility for determining the appropriateness of the defendant's
death rests elsewhere." Id. at 328-39, 105 S.Ct. at 2639 (plurality opinion).

As an initial issue, the government contends that Mr. Hutching lacks standing
to raise a Caldwell claim. We agree. Caldwell was particularly directed to the
unique nature of a death sentence, and the opinion in Caldwell was based upon
the "quantitative difference of death from all other punishments [which]
requires a correspondingly greater degree of scrutiny of the capital sentencing
determination." Id. at 329, 105 S.Ct. at 2639 (plurality opinion). Mr. Hutching
was not sentenced to death and thus lacks standing to allege a Caldwell
violation. Cf. Caldwell, 472 U.S. at 341, 105 S.Ct. at 2646 (the judgment in
Caldwell was only "reversed to the extent that it sustains imposition of the
death penalty"). The Supreme Court has not extended Caldwell beyond the
capital sentencing realm, and we decline to do so here.

10

Even if Mr. Hutching had standing to challenge the trial court's remarks (as his
codefendant, Mr. McCullah, does), we do not find that the remarks constitute a
Caldwell violation. The Supreme Court has "read Caldwell as 'relevant only to
certain types of comment--those that mislead the jury as to its role in the
sentencing process in a way that allows the jury to feel less responsible than it
should for the sentencing decision.' " Romano v. Oklahoma, --- U.S. ----, ----,
114 S.Ct. 2004, 2010, 129 L.Ed.2d 1 (1994) (quoting Darden v. Wainwright,
477 U.S. 168, 183 n. 15, 106 S.Ct. 2464, 2472 n. 15, 91 L.Ed.2d 144 (1986)).
See also Hopkinson v. Shillinger, 888 F.2d 1286, 1293 (10th Cir.1989) (en
banc), cert. denied, 497 U.S. 1010, 110 S.Ct. 3256, 111 L.Ed.2d 765 (1990).
Here, the trial court was merely explaining how and why a record is made. The
statements during voir dire did not tend to minimize the jury's responsibility
with regard to the death sentence and referred only to the possibility of
appellate review of the trial judge's errors during the trial, not the jury's

responsibility during sentencing. In Dugger v. Adams, the Supreme Court

stated, "[t]o establish a Caldwell violation, a defendant necessarily must show
that the remarks to the jury improperly described the role assigned to the jury
by local law." Dugger v. Adams, 489 U.S. 401, 407, 109 S.Ct. 1211, 1215, 103
L.Ed.2d 435 (1989). Mr. Hutching makes no such claim.
II. Sufficiency of the Evidence
11

Mr. Hutching contends that there was insufficient evidence to support his
convictions for engaging in a continuing criminal enterprise (Count 15) and for
causing the intentional killing of an individual while engaging in a continuing
criminal enterprise (Count 16).

12

In reviewing the sufficiency of evidence supporting a conviction, we examine

the evidence, and all reasonable inferences to be drawn therefrom, in the light
most favorable to the government and " 'ask whether any rational juror could
have found the essential elements of the crime beyond a reasonable doubt.' "
United States v. Levine, 41 F.3d 607, 610 (10th Cir.1994) (quoting United
States v. Arutunoff, 1 F.3d 1112, 1116 (10th Cir.), cert. denied, --- U.S. ----,
114 S.Ct. 616, 126 L.Ed.2d 580 (1993)). "We consider both direct and
circumstantial evidence and accept the jury's resolution of conflicting evidence
and its assessment of the credibility of witnesses." Levine, 41 F.3d at 610.

A. Count 15
13

Mr. Hutching claims that the evidence fails to establish that he occupied "a
position of organizer, a supervisory position, or any other position of
management" with respect to five other persons in the criminal enterprise as
required by the statutory definition of engaging in a continuing criminal
enterprise. See 21 U.S.C. 848(c).* The terms "organizer," "manager," and
"supervisor" as used in 848(c) are given their "nontechnical, 'everyday
meanings.' " United States v. Jenkins, 904 F.2d 549, 553 (10th Cir.), cert.
denied, 498 U.S. 962, 111 S.Ct. 395, 112 L.Ed.2d 404 (1990). See also United
States v. Smith, 24 F.3d 1230, 1233 (10th Cir.), cert. denied, --- U.S. ----, 115
S.Ct. 270, 130 L.Ed.2d 188 (1994). "[T]he defendant need not be the dominant
organizer or manager of the enterprise; he need only occupy some managerial
position with respect to five or more persons." Jenkins, 904 F.2d at 553
(emphasis in original). "An organizer arranges a number of people engaged in
separate activities into an essentially orderly operation," and a supervisor gives
orders or directions to another person who carries them out. Smith, 24 F.3d at
1233. See also United States v. Apodaca, 843 F.2d 421, 426 (10th Cir.), cert.
denied, 488 U.S. 932, 109 S.Ct. 325, 102 L.Ed.2d 342 (1988). " 'The

defendant's relationships with the other persons need not have existed at the
same time, the five persons involved need not have acted in concert at the same
time or with each other, and the same type of relationship need not exist
between the defendant and each of the five.' " Smith, 24 F.3d at 1233 (quoting
Apodaca, 843 F.2d at 426).
14

The evidence at trial established that Mr. Hutching acted both as an organizer
and as a supervisor or manager. He oversaw the cross-country transportation of
drugs for the Arvizu enterprise, and he helped arrange the drug-recovery
operation. Mr. Hutching concedes that there was sufficient evidence of his
supervision or management of at least three individuals: James Shiew, Herman
"Buck" Thornton, and Ed Thayer. However, contrary to Mr. Hutching's
contention, there was also sufficient evidence that he supervised at least two
other members of the criminal enterprise: Claude "Gary" Bell and Melva Ford,
and there was also substantial evidence of his organizational, supervisory and
managerial role in the attempts to recover the stolen drugs.

i. Claude Bell
15
16

The evidence shows that Mr. Hutching employed Claude Bell as a bodyguard.
Mr. Bell accompanied Mr. Hutching on several drug-conspiracy related trips
and performed or helped perform various conspiracy-related tasks at Mr.
Hutching's direction, including aiding in the transport of guns from the
Oklahoma lake house to Tennessee. Although there was no direct evidence that
Mr. Bell knew the drug-related nature of his activities, such knowledge can be
inferred from the large amount of money Mr. Bell was promised for his efforts
and the furtive nature of his trips with Mr. Hutching.

ii. Melva Ford

17
18

The evidence similarly indicates that Mr. Hutching supervised or managed

Melva Ford. Mr. Hutching stored the pickup truck containing the cocaine at her
residence after telling her that "[t]he truck is loaded." Even if the period of
supervision may have been "quite brief" in duration, "someone who stores
drugs for [a] defendant ... is also within the ambit of the [continuing criminal
enterprise] statute." United States v. Ward, 37 F.3d 243, 247 (6th Cir.1994),
cert. denied, --- U.S. ----, 115 S.Ct. 1388, 131 L.Ed.2d 240 (1995). The
evidence indicated that Ms. Ford knew the drug-related nature of the shipment
in her care; in fact her knowledge was what made her a prime suspect in the
truck's disappearance.

iii. Drug Recovery Attempts

19

20

The evidence clearly revealed that Mr. Hutching played a pivotal role in the
drug recovery efforts of the Arvizu organization. Mr. Wiscowiche testified that
Mr. Hutching helped plan the initial drug recovery efforts and that Mr.
Hutching personally led the group, which included Mr. Wiscowiche, Mr.
Molina, and Mr. Sanchez, which attempted to kidnap Mr. Rogers from his
home but was thwarted by the noises of farm animals. The evidence also
indicated that Mr. Hutching supplied the weapons to the group at the lake
house and participated in a planning meeting with Mr. Arvizu and Mr. Molina.

B. Count 16
21

Mr. Hutching argues that because the evidence was not sufficient to establish
that he was engaged in a continuing criminal enterprise, an essential element of
the crime charged in Count 16 is lacking. Given our previous discussion
holding there was sufficient evidence, we reject that argument. Mr. Hutching
was indeed engaged in a continuing criminal enterprise, and the murder of Mr.
Collins was part of that enterprise. Furthermore, the evidence was
overwhelming that he was "working in furtherance" of the enterprise and that
he "counsel[led], command[ed], induce[d], procure[d], or cause[d] the
intentional killing" of Mr. Collins.

III. Multiplicity of Counts 18, 19, and 20

22

Mr. Hutching claims that Counts 18, 19, and 20 are multiplicitous and
consequently, convictions on all three counts cannot be upheld. Counts 18, 19,
and 20 each charged Mr. Hutching with unlawfully possessing a firearm as a
previously convicted felon under 18 U.S.C. 922(g), 924(a)(2), but each
count charged Mr. Hutching with possession of a different firearm. Claims of
multiplicity are subject to de novo review. United States v. Wall, 37 F.3d 1443,
1446 (10th Cir.1994).

23

The "simultaneous possession" of multiple firearms generally "constitutes only

... one offense" unless there is evidence that the weapons were stored in
different places or acquired at different times. United States v. Jones, 841 F.2d
1022, 1023 (10th Cir.1988). See also United States v. Bonavia, 927 F.2d 565,
568-69 (11th Cir.1991). In this case, the three weapons, while all seized on the
same day, were located at different sites; one was in Mr. Hutching's bedroom,
one was in a car parked in his garage, and the other was in his pickup truck.
The scattered locations of the guns constituted separate storages that permitted
possession of each firearm to constitute a separate offense. Accord United
States v. Gann, 732 F.2d 714, 721 (9th Cir.), cert. denied, 469 U.S. 1034, 105
S.Ct. 505, 83 L.Ed.2d 397 (1984) (separate counts for firearms separately

stored or acquired).
IV. Comments by Prosecutor and Trial Court
24

Mr. Hutching argues that certain comments by the prosecutor and by the trial
court were highly prejudicial and denied him a fair trial. Mr. Hutching
concedes that the two statements he complains of, standing alone, would not
warrant reversal of his convictions, but contends that the cumulative effect of
the statements, coupled with the other errors he alleges, constitutes reversible
error. United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir.1990). We
disagree.

25

In his opening statement, the prosecutor, in introducing his trial team to the
jury, introduced Assistant United States Attorney Paul Hess as "chief of our
organized crime and drug enforcement task force." Mr. Hutching does not
dispute that this was a true statement of Mr. Hess' position within the United
States Attorney's Office, but objected to the description as unnecessary and
prejudicial because of the sinister connotations of "organized crime." The
prosecutor's statement, accurate albeit unnecessary, was not prejudicial.

26

Mr. Hutching also takes issue with a statement made by the trial judge after
both sides had rested and the jury was about to begin its deliberations. The
judge stated to the jury:

27 about 10:30 [A.M], and I don't know how long it will take you to make a
It's
decision in this case. It may take just an hour or so. I mean it's conceivable you
could make a decision before noon.
28

We have ordered lunch for you, I guess.

29

.... [I]f for some reason you make a decision before noon, well, we'll stay for it
and you can go on, or you stay here and eat it, if you want to, if that's what you
want to do afterwards.

30

It may take you on into the afternoon. It's always possible it could take you on
longer than that. If you should deliberate past another meal hour, you let us
know.

31

56 R. 3838-39. The judge was seeking to make proper meal arrangements for
the jury, rather than commenting on the evidence or the case. We find no error
in the judge's remarks.

V. Issues Raised by Codefendants

32

Mr. Hutching adopts all arguments advanced by his codefendants applicable to

him and reasserts some arguments raised by his codefendants. We find merit in
only one of these arguments.

33

Mr. Hutching, unlike his codefendants, was convicted of both drug conspiracy,
21 U.S.C. 846, and continuing criminal enterprise, 21 U.S.C. 848(a). The
drug conspiracy count is a lesser included offense of the continuing criminal
enterprise count, and thus we vacate the drug conspiracy conviction. United
States v. Stallings, 810 F.2d 973, 975-76 (10th Cir.1987). We note that drug
conspiracy is not a lesser included offense of Count 16, killing in furtherance of
a continuing criminal enterprise, for the reasons set out in United States v.
McCullah, 76 F.3d 1087 (10th Cir.1996).

34

We have carefully considered the other arguments and find them without merit
both individually and cumulatively. See United States v. McCullah, 76 F.3d
1087 (10th Cir.1996).

35

Accordingly, we remand to the district court with instructions to VACATE the

conviction and sentence on Count 1; we AFFIRM the remaining convictions
and sentences.

Section 848(c) provides:

For purposes of subsection (a) of this section, a person is engaged in a
continuing criminal enterprise if-(1) he violates any provision of this subchapter or subchapter II of this chapter
the punishment for which is a felony, and
(2) such violation is a part of a continuing series of violations of this subchapter
or subchapter II of this chapter-(A) which are undertaken by such person in concert with five or more other
persons with respect to whom such person occupies a position of organizer, a
supervisory position, or any other position of management, and
(B) from which such person obtains substantial income or resources.
21 U.S.C. 848(c).