United States v. Cook, 10th Cir. (2010)

FILED
United States Court of Appeals

Tenth Circuit
June 18, 2010

UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT
Clerk of Court
UNITED STATES OF AMERICA,

Plaintiff - Appellee,
No. 09-2152
(D.C. No. 07-CR-00766)
(D. N.M.)
v.
ROBERT GUYTON COOK,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, Circuit Judge, McWILLIAMS, Senior Circuit Judge and

LUCERO, Circuit Judge.
In October 2008, a jury convicted Defendant-Appellant Robert Guyton

Cook of conspiracy to murder in aid of racketeering and conspiracy to distribute
methamphetamine. The court sentenced Mr. Cook to 180 months imprisonment
and four years supervised release. On appeal, he challenges the sufficiency of
the evidence on both counts and argues that the district court erred when it
required him to wear shackles during his trial. Aplt. Br. at 14-16. We have
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
jurisdiction under 28 U.S.C. 1291 and affirm.
Background
We view the evidence in the light most favorable to the government.
United States v. Taylor, 592 F.3d 1104, 1108 (10th Cir. 2010).
A.
The Plan to Kill Deputy Anders.

In December, 2004, Otero County Deputy Sheriff Billy Anders shot and
killed Earl Flippen minutes after Mr. Flippen murdered Deputy Anderss partner.
4 R. at 799-801, 804-06, 810-11. For this crime, Deputy Anders pled guilty to
voluntary manslaughter and served one year in state prison. Id. at 811.
Mr. Flippen was the New Mexico leader of the Aryan Brotherhood. Id. at
841, 914. In early 2005, the Aryan Brotherhoods generals ordered its members
to kill Deputy Anders. 4 R. at 838-40, 871-74, 1440; Gov. Exs. 4, 5.
In May of 2006, Owen Puckett, a major who replaced Mr. Flippen as New
Mexicos leader, told D.W. that he wanted to plan avenging Mr. Flippens death.
4 R. at 914, 931-32. D.W., a senior captain in the New Mexico Aryan
Brotherhood, was a federal informant. Id. at 910-12. He introduced an
undercover FBI agent, Pete, as a prospective member who would carry out the
murder. Id. at 932-33.
At a meeting on May 13, 2006, Mr. Puckett, Pete, and D.W. agreed to kill
Deputy Anders once he left prison. Id. at 933, 943, 1368-69. They settled on a
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method for the murder and planned a getaway car and weapons. Id. at 943, 1369.
Mr. Puckett then wrote to Aryan Brotherhood generals for approval. Id. at 94546.
B.
Arranging and Planning the Murder.

About a week later, Robert Cook, a Texas Aryan Brotherhood major,
contacted Mr. Puckett about the plan. Id. at 195, 229-30. Mr. Puckett and D.W.
then scheduled a meeting to plan the murder with Mr. Cook. Id. at 232-33, 236,
259-60, 1448-49; Gov. Ex. 26. Before the meeting, Mr. Cook offered his home as
a safe house for the murderer. 4 R. at 1459-60. Mr. Cook also let Samuel
Arrington, a captain in the Aryan Brotherhood, know about the meeting. Id. at
1334, 1459. D.W. and Mr. Cook together finalized the location, travel, and
attendees. Id. at 1024, 1468-69; Gov. Ex. 39.
Meanwhile, Mr. Puckett was arrested for violating his parole. 4 R. at 1471.
He nevertheless remained in charge of New Mexico Aryan Brotherhood from jail
and helped with the plan. 4 R. at 1221, 1471-73. For example, he told D.W. to
promote Pete to a higher rank after the murder. Id. at 1472.
On August 26, 2006, Mr. Cook and Mr. Arrington met with D.W. and Pete.
Id. at 1050, 1055; Gov. Ex. 41. Mr. Cook told Pete how to stalk and kill Deputy
Anders. Gov. Ex. 41. He also said, If you need to Ill come in from out of state
and do it. Id. Mr. Cook again offered Pete a safe house. 4 R. at 1069. At one
point, D.W. said that a threat to one is a threat to all, and Mr. Arrington nodded
-3-
in agreement. Id. at 1066; Gov. Ex. 41.

Mr. Cook later reported the plan to a general, saying, everything out there
was a go. 4 R. at 1139, 1147-48. By this time, the group was just waiting for
April 2007, when Deputy Anders would leave prison. Id. at 1093, 1148.
C.
Brokering a Methamphetamine Sale to Finance the Murder.

About a month after the meeting, D.W. asked Mr. Arrington to get Pete
some methamphetamine he could sell while on the run. Id. at 1090-91, 1338. Mr.
Arrington agreed and negotiated for methamphetamine on their behalf. Id. at
1227-31. Mr. Arrington also said that Pete could stay with him after the murder.
Id. at 1335. Soon after, Mr. Cook chastised D.W. and Mr. Arrington for talking
about the murder instead of concealing the plan. Id. at 1091-92.
A few days after that, on October 4, 2006, D.W. told Mr. Cook that he
needed a pound of methamphetamine to sell and turn at a profit, to finance the
killing of Deputy Anders. Gov. Ex. 45. Mr. Cook said, I can get it for you.
That aint a problem. Gov. Ex. 45. He stated that his captain, Weyman
Mathews, had a methamphetamine connection. 4 R. at 1101; Gov. Ex. 45.
On October 9, 2006, Mr. Cook told D.W. that the price would be between
$8,000 and $10,000 a pound, and that he and Mr. Mathews were ready when D.W.
had the money. 4 R. at 276, 278-79; Gov. Ex. 46. D.W. told Mr. Cook that he
needed the final price. Gov. Ex. 46.
After Mr. Cook phoned Mr. Mathews, he told D.W. that the price would be
-4-
$7500 to $8000. 4 R. at 279-80; Gov. Ex. 47. Mr. Cook repeated that he was
getting the drugs through Mr. Mathews, who required payment up front. 4 R. at
280-81; Gov. Ex. 47. Mr. Cook also said that they would need three or four days
notice. 4 R. at 280; Gov. Ex. 47. Mr. Cook agreed to deliver the drugs
personally for an extra $1000. Gov. Ex. 47.
On October 25, 2006, D.W. called Mr. Cook to see whether they were on.
4 R. at 282; Gov. Ex. 51. Mr. Cook said that they were, and he detailed when and
where D.W. would meet Mr. Mathews. Gov. Ex. 51. D.W. again asked not to
pay up front, saying that he would turn the methamphetamine quickly. Id. Mr.
Cook replied that payment was up to Mr. Mathews. Id. D.W. then complained
that it was an awful large amount of cash for a first time meet. 4 R. at 28485; Gov. Ex. 51. Mr. Cook replied, Thats where you just gotta trust [Mr.
Mathews]. Gov. Ex. 51. D.W. never consummated the deal. 4 R. at 285-86.
D.
The Trial and Verdict.

In March 2008, Mr. Cook was charged with conspiring to murder in aid of
racketeering, under 18 U.S.C. 1959(a)(5), and with conspiracy to distribute fifty

grams or more of methamphetamine, under 21 U.S.C. 841(a)(1), (b)(1)(B) &
846. 1 R. at 37-41, 47-48. Before trial, Mr. Cook objected to wearing restraints
before the jury. 1 Supp. R. at 2-3. The court said,
Im going to leave that up to the marshals. They run they handle
security. Im not a security expert. They are. . . . . as far as whether
shackles need to be on after jury selection or not, again, thatll be up to
-5-
[two deputies], who are the marshals in charge of this proceeding. So

thats how I intend to handle it. Also, Ill delegate to the marshals about
how they want [seating to take place].
Id. at 9-10. Mr. Cook wore shackles during trial. 4 R. at 864-65. But, to conceal
the shackles, the court ordered long cloth skirts to surround the counsel tables.
Id., 1 Supp. R. at 2-3, 9.
The jury found Mr. Cook guilty of both conspiracies. 1 R. at 435-36. The
court denied Mr. Cooks motions for acquittal and sentenced him to 180 months
imprisonment and four years supervised release. Id. at 366-71, 425, 427-28.
Discussion
This court reviews sufficiency of the evidence claims de novo, examining
all evidence and drawing all reasonable inferences in the light most favorable to
the government, to determine whether a rational jury could have found the
defendant guilty beyond a reasonable doubt. United States v. Oldbear, 568 F.3d
814, 822-23 (10th Cir. 2009). We do not evaluate witness credibility or weigh
conflicting evidence. United States v. Parker, 553 F.3d 1309, 1316 (10th Cir.
2009). We also do not review the evidence in bits and pieces, but we evaluate
the sufficiency of the evidence by consider[ing] the collective inferences to be
drawn from the evidence as a whole. Id. (citation omitted).
A. Conspiracy to Murder Deputy Anders.

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To prove Mr. Cook guilty of conspiracy to murder in aid of racketeering,

the government had to prove that (1) the Aryan Brotherhood was an enterprise
under 18 U.S.C. 1959(b)(2); (2) that Mr. Cook was a member of the Aryan
Brotherhood; (3) that the Aryan Brotherhood engaged in racketeering activity
under 18 U.S.C. 1961(1); (4) that Mr. Cook conspired to murder Deputy
Anders, and (5) that his general purpose in doing so was to maintain or increase
his position in the Aryan Brotherhood. 18 U.S.C. 1959(a); see United States v.
Smith, 413 F.3d 1253, 1277 (10th Cir. 2005).
Mr. Cook challenges the governments evidence on the fourth element, that
he conspired to murder Deputy Anders. Aplt. Br. at 24-31. Mr. Cook argues that
he did not conspire with anyone other than a government agent, and that the
government failed to prove interdependence among the coconspirators. Id. A
conspiracy does not exist when a defendant colludes only with government agents
or informers. United States v. Hardwell, 80 F.3d 1471, 1482 (10th Cir. 1996).
Mr. Cook claims that he could not have conspired with Mr. Arrington because Mr.
Arrington was merely present at a meeting where the murder was discussed. Aplt.
Br. at 26, 30-31. He also asserts that he could not have conspired with Mr.
Puckett because their phone calls reflected no agreement and because Mr. Puckett
withdrew from the conspiracy when he was arrested. Aplt. Br. at 25-26, 30-31.
A jury nevertheless could reasonably conclude that Mr. Cook conspired
with Mr. Arrington and Mr. Puckett, neither of whom were government agents.
-7-
Mr. Puckett initiated the plan before his arrest and continued facilitating it from
jail. The jury could conclude that Mr. Puckett never withdrew from the
conspiracy. To withdraw from a conspiracy, a conspirator must make an
affirmative act disavowing or defeating the purpose of the conspiracy. United
States v. Gonzalez, 596 F.3d 1228, 1234 (10th Cir. 2010). As well, Mr. Arrington
joined the conspiracy while Mr. Cook was a member. Mr. Arrington nodded his
approval of the plan at the August meeting. He later offered to provide a safe
house and to get methamphetamine to finance the murder.
Mr. Cook participated in the conspiracy while Mr. Puckett and Mr.
Arrington were fellow conspirators. Mr. Cook coordinated communications,
planned meetings, took direction from generals, prescribed the method of the
murder, offered to commit the murder, and advised the others how to avoid being
caught. He offered to provide a safe house for the murderer and brokered a drug
deal to finance the murder. In short, ample evidence showed that Mr. Cook
conspired with Mr. Puckett and Mr. Arrington to murder Deputy Anders.
B. Conspiracy to Distribute Methamphetamine.
To prove Mr. Cook guilty of conspiring to distribute methamphetamine, the
government had to prove that (1) Mr. Cook and at least one other person agreed to
distribute methamphetamine; (2) that Mr. Cook knew the essential objective of
the conspiracy; (3) that Mr. Cook knowingly and voluntarily involved himself in
the conspiracy; (4) there was interdependence among the members of the
-8-
conspiracy, and (5) the overall scope of the conspiracy involved 50 grams or more
of methamphetamine. 21 U.S.C. 841, 846; United States v. Caldwell, 589 F.3d
1323, 1329 (10th Cir. 2009).
Mr. Cook challenges the sufficiency of the evidence on the first and fourth
elements, arguing that the government failed to prove agreement or
interdependence between himself and a non-governmental actor. Aplt. Br. at
31-40. Mr. Cook argues that he and Mr. Mathews only had a buyer-seller
relationship. Aplt. Br. at 36-40.
Yet a rational jury could conclude the opposite. Mr. Cook agreed to be the
middle man in a five-figure methamphetamine transaction between D.W. and Mr.
Mathews. Mr. Cook said that he was getting the drugs from Mr. Mathews. He
checked with Mr. Mathews about all the details of the deal the price, the
timing, and whether D.W. would have to pay cash up front. The jury could infer
from this that Mr. Cook secured Mr. Mathewss agreement to sell the drugs to
D.W. for distribution.
The jury also could find that these drugs were for distribution. D.W. told
Mr. Cook that he would resell the drugs. The large amount of methamphetamine
at stake would have alerted Mr. Mathews that D.W. would distribute it. Mr.
Cooks involvement with Mr. Mathews thus went far beyond being an
independent, one-time buyer of an individual portion of drugs. Cf. United States
v. McIntyre, 836 F.2d 467, 471-72 (10th Cir. 1987).
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Mr. Cook and Mr. Mathews were also interdependent. If Mr. Cook had not
arranged the deal, Mr. Mathews could not have sold these drugs to D.W.. And if
Mr. Mathews did not provide the drugs, Mr. Cook would not be able to finance
his murder conspiracy by helping D.W. distribute this methamphetamine.
Contrary to Mr. Cooks arguments, the fact that D.W. could have obtained
methamphetamine elsewhere does not negate the interdependence of Mr. Cook
and Mr. Mathews. Aplt. Br. at 34. What is needed is proof that [Mr. Cook and
Mr. Mathews] intended to act together for their shared mutual benefit within the
scope of the conspiracy charged. United States v. Evans, 970 F.2d 663, 671
(10th Cir. 1992). A jury could reasonably find that sufficient cooperation existed
between Mr. Cook and Mr. Mathews.
C. Restraining Mr. Cook at Trial.
As part of the presumption of innocence, a defendant has a qualified right
not to appear before a jury in shackles. United States v. Wardell, 591 F.3d 1279,
1293 (10th Cir. 2009). A district court, however, retains the discretion to take
measures to maintain order and security within its courtroom. Id. In any given
case, a district court must weigh these competing concerns and make a decision
on the record. Id. at 1294. It may not delegate its decision to the United States
marshals, although it may rely heavily on their advice. United States v. Apodaca,
843 F.2d 421, 431 (10th Cir. 1988).
We accordingly review a district courts physical restraint of the defendant
- 10 -
for an abuse of discretion. Id. But, keeping in mind due process, we also give
restraints close judicial scrutiny. Wardell, 591 F.3d at 1293 (citing Estelle v.
Williams, 425 U.S. 501, 504 (1976)). Here, it is a close case whether or not the
district court impermissibly delegated its discretion to the marshals. We,
however, need not decide this issue. Even assuming that the court erred when it
shackled Mr. Cook, the record does not show that the jury saw the shackles and
was thereby prejudiced against him. Table skirts covered all restraints. And
although Mr. Cooks counsel expressed concern that jurors may have read a
newspaper article mentioning the shackles, the record does not show that any
jurors had read the article in violation of the courts instruction not to do so. 4 R.
at 864-65; 5 R. at 203. Accordingly, Mr. Cook cannot show prejudice and any
presumption of prejudice that applies when a jury saw or knew of the shackles
does not apply. Wardell, 591 F.3d at 1294.
AFFIRMED. We GRANT Mr. Cooks motion to supplement the record.
ENTERED FOR THE COURT

PER CURIAM
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FILED

United States Court of Appeals

June 18, 2010

UNITED STATES OF AMERICA,

ORDER AND JUDGMENT *

Before KELLY, Circuit Judge, McWILLIAMS, Senior Circuit Judge and

In October 2008, a jury convicted Defendant-Appellant Robert Guyton

jurisdiction under 28 U.S.C. 1291 and affirm.

The Plan to Kill Deputy Anders.

Arranging and Planning the Murder.

in agreement. Id. at 1066; Gov. Ex. 41.

Brokering a Methamphetamine Sale to Finance the Murder.

The Trial and Verdict.

racketeering, under 18 U.S.C. 1959(a)(5), and with conspiracy to distribute fifty

[two deputies], who are the marshals in charge of this proceeding. So

A. Conspiracy to Murder Deputy Anders.

To prove Mr. Cook guilty of conspiracy to murder in aid of racketeering,

ENTERED FOR THE COURT

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