U.S. v. Brazel
| Decision Date | 06 January 1997 |
| Docket Number | 93-2987 and 93-2988,Nos. 93-2951,s. 93-2951 |
| Citation | 102 F.3d 1120 |
| Parties | 46 Fed. R. Evid. Serv. 240, 10 Fla. L. Weekly Fed. C 621 UNITED STATES of America, Plaintiff-Appellee, v. Ralph E. BRAZEL, Jr., Charles Hubbard, Norman L. Burgess, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Sharvonne McKINNON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Levine Justice ARCHER, a.k.a. Jamaican Joe, a.k.a. Joe, Willie Jefferson, Marlon McNealy, a.k.a. Man, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
David T. Weisbrod, Tampa, FL, for Ralph E. Brazel, Jr.
Thomas P. Fox, Tampa, FL, for Charles Hubbard.
Marvin P. Jackson, Tampa, FL, for Norman L. Burgess.
Darlene C. Barror, Tampa, FL, for Sharvonne McKinnon.
Michael Stepakoff, Tampa, FL, for Levine Justice Archer.
Donald E. Horrox, Clearwater, FL, for Willie Jefferson.
Carl R. Hayes, Tampa, FL, for Marlon McNealy.
Tamra Phipps, Kathy J. Peluso, Asst. U.S. Attys., Tampa, FL, for U.S.
Appeals from the United States District Court for the Middle District of Florida.
Before TJOFLAT, Circuit Judge, and RONEY and CAMPBELL *, Senior Circuit Judges.
These appeals are from the convictions of seven individuals charged with drug trafficking offenses following a jury trial that took place in the United States District Court for the Middle District of Florida, Tampa Division. Defendants-appellants Levine Archer, Ralph Brazel, Norman Burgess, Willie Jefferson, Charles Hubbard, Sharvonne McKinnon, and Marlon McNealy were allegedly all associated with an organization led by Ronald Mathis (a/k/a "Romeo" or "Rome") in St. Petersburg, Florida, that engaged in the distribution of crack cocaine. On October 23, 1991, a federal grand jury handed down drug trafficking indictments against thirty-two people including these defendants. Many of those indicted pleaded guilty and cooperated with the government, some of them later testifying against one or more of the defendants.
Defendants' trial was lengthy, beginning on February 4, 1993 and consuming approximately three months. 1 On May 7, the jury found all seven defendants-appellants guilty of conspiracy to distribute cocaine base in violation of 21 U.S.C. § 846. Archer and McNealy were also found guilty of conspiracy to commit racketeering activities and participation in racketeering activities, 18 U.S.C. § 1962(d) & (c), and two and three counts, respectively, of possession of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1). Jefferson was convicted of conspiracy to commit racketeering activities, 18 U.S.C. § 1962(d). Brazel was convicted of two counts of possession of cocaine with intent to distribute, 21 U.S.C. § 841(a). Burgess was convicted of use of a firearm during and in relation to drug trafficking, 18 U.S.C. § 924(c). Sentencing proceedings were held in August and September 1993. All the defendants received at least one life sentence. These appeals followed.
We begin this opinion with a short overview giving a general picture of the evidence at trial. Additional evidence is summarized within the ensuing, separately labelled sections of the opinion, in conjunction with our discussion of points the defendants have raised. Hence, right after the evidentiary overview, we consider the contentions of McKinnon, Hubbard, Burgess, and McNealy that the evidence was insufficient, as a matter of law, to support their convictions on certain counts; and in doing so we set out the evidence relevant to their contentions. Thereafter, we address seriatim numerous assertions of legal error the defendants individually and collectively have made.
We affirm all the convictions and sentences.
Construed in the light most favorable to the government, the evidence at trial showed the following. During 1990 and 1991 in St. Petersburg, Florida, Ronald Mathis operated a major crack cocaine distribution organization with which the defendants were connected. Defendant Levine Archer ("Jamaican Joe") supplied crack cocaine to the organization during 1990 until early 1991, when he had a dispute with Mathis. Around late 1990, Marlon McNealy and Willie Jefferson became suppliers as well. They were soon joined by Charles Hubbard, and these three were principal suppliers from July 1 through October 1991.
During 1990 the Mathis organization operated on the north side of St. Petersburg. Mathis and his nephew, defendant Ralph Brazel, were among those who brought 25- and 50-packs of crack cocaine to Mathis's sellers on Grove Street, where a rock of crack cocaine sold for $20 ($1,000 for a 50-pack). Occasionally, a seller returned crack cocaine to Mathis because it was unfit to be sold, part having been cut and sold on the side. When Mathis was not home, the seller left a plastic bag containing the drugs, along with drug proceeds, with Mathis's live-in girlfriend, Sharvonne McKinnon; the seller and she emptied the bag and together counted the rocks of crack cocaine to be returned to Mathis. On July 11, 1990, St. Petersburg Police Department (SPPD) Detective Gerald Niles and a confidential informant made an undercover purchase of three rocks of crack for $60 from Brazel and another person at 615 Grove Street North. Brazel thereafter pled guilty to a state charge of selling cocaine on that date, and evidence of the plea was introduced at the instant trial.
In late 1990, Mathis moved his operations to the south side of the city. On December 24, 1990, at an organizational meeting attended by about twenty people, Mathis outlined his plan to be bigger and smarter than another drug organization in the city, run by "Wonderman" Lee, had been. McKinnon was present and added that workers should not be as flashy as the Lee organization. In 1991 the center of operations was Mathis's residence at 781 16th Avenue South, though several sites on the south side were used to prepare, sell, and pay for drugs sold. These locations included 827 Preston Avenue South, 14th Avenue South and Highland by a key shop, locations around 15th and 16th Avenue South, 1222 19th Avenue South, and 2320 Fairfield Avenue. Mathis moved operations from one site to another in response to law enforcement searches, and ordered at least one site to be burned down to impede investigation efforts. Evidence of arson and attempts at burglary and murder was introduced, indicating the full extent of the Mathis organization's activities.
On the south side, the Mathis organization operated around the clock in three shifts: midnight to 8:00 a.m., 8:00 a.m. to 5:00 p.m., and 5:00 p.m. to midnight. Each shift had a "boss," who delivered 50-packs of crack cocaine to "servers." Servers took orders from customers and made deliveries accompanied by "collectors," who took the money from the buyer and immediately counted it. "Overseers" kept tally sheets of how much crack cocaine a worker had out, collected shift revenues, and transferred the money to Mathis. "Lookouts" warned other workers of the approach of police or members of a special drug task force (the "green team," so named because of their green jackets) by shouting, using a walkie-talkie, or activating a remote-controlled siren or alarm. Firearms were purchased and carried by some workers for protection against robbery of drugs or money. Defendants Norman Burgess and Brazel held various positions on the shifts; Burgess also served as an armed guard to Mathis or one of his associates carrying money. McKinnon had no formal assignment on a shift, but on various occasions accepted and counted rocks of crack cocaine and money from shift workers, alerted Mathis and his associates to the approach or arrival of the green team, and relayed messages from shift workers to Mathis.
A rock of crack cocaine sold on the south side for $10 ($500 for a 50-pack). For each 50-pack sold, $50 went to workers on the shift and $450 was returned to Mathis, who paid the suppliers and also paid workers regularly on Fridays.
SPPD officers conducted undercover buys from Mathis workers around 14th Avenue South and Highland Street on March 22, March 25, and April 9, 1991. On the first two dates, undercover officer Marilyn Brown and a confidential informant purchased 25 and 50 rocks of crack cocaine from Ralph Brazel and others. Brazel collected the money from her each time, and, in response to her question about where she could get a one-ounce "cookie" of crack cocaine (a piece not yet cut into rocks), answered that she would have to talk to Mathis. Brazel pled guilty to state charges of sale and possession of crack cocaine on these dates. A third undercover buy was begun on April 9, 1991 at 14th Avenue and Highland Street, but was not completed. Detective Niles and a confidential informant attempted to purchase crack cocaine from Burgess and another person, but the transaction was disrupted when individuals nearby shouted "green team." Before the transaction ended, Burgess asked Niles whether he was a police officer, and, apparently believing it was all right to proceed, agreed to Niles's suggestion to put the substance appearing to be crack cocaine on the ground, where Niles would also leave the money. (The money was not in fact left, nor the substance taken.)
From June until November 1991, SPPD detectives intercepted cordless telephone conversations made to and from Mathis's residence. Local officers carried out searches of addresses associated with the Mathis organization, and conducted additional undercover drug transactions with assistance from special agents of the Federal Bureau of Investigation (FBI). The latter took place on or around July 25, August 2, and August 15 at a local Chevron station and a Burger King. On October 24, 1991, Hubbard, McNealy, and Jefferson were arrested after a search of a residence they frequented revealed drugs along with some of their belongings. On October 31, at Mathis's direction, Hubbard went with two...
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