116 F.3d 641 (2nd Cir. 1997), 95-1466, United States v. Miller

Docket Nº:95-1466, 95-1642 and 96-1031.
Citation:116 F.3d 641
Party Name:UNITED STATES of America, Appellee, v. Gerald MILLER, Ronald Tucker, Roy Hale, Waverly Coleman, Harry Hunt, Shannon Jimenez, Raymond Robinson, aka
Case Date:June 20, 1997
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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116 F.3d 641 (2nd Cir. 1997)

UNITED STATES of America, Appellee,

v.

Gerald MILLER, Ronald Tucker, Roy Hale, Waverly Coleman,

Harry Hunt, Shannon Jimenez, Raymond Robinson, aka "Ace",

Wilfredo Arroyo, aka "C-Justice", aka "C.J.", David

Robinson, aka "Bing", Defendants-Appellants.

Nos. 343, 483, 344, 349, 383, 345-348, Dockets 95-1077(L),

95-1308, 95-1203, 95-1302, 95-1307, 95-1327,

95-1466, 95-1642 and 96-1031.

United States Court of Appeals, Second Circuit

June 20, 1997

        Argued Dec. 16, 1996.

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        Leslie R. Caldwell, Mark P. Ressler, Assistant United States Attorneys for the Eastern District of New York, Brooklyn, New York (Zachary W. Carter, United States Attorney, David C. James, Susan Corkery, Assistant United States Attorneys, Brooklyn, New York, on the brief), for Appellee.

        Joyce C. London, New York City, Jonathan Turley, Washington, DC, for Defendant-Appellant Gerald Miller; filed a supplemental brief pro se.

        Lloyd Epstein, New York City (Judith H. Weil, Epstein & Weil, New York City, on the brief), for Defendant-Appellant Ronald Tucker.

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        Bennett M. Epstein, New York City, for Defendant-Appellant Roy Hale.

        Daniel Nobel, New York City, for Defendant-Appellant Waverly Coleman.

        Kenneth M. Tuccillo, New York City (Lawrence H. Schoenbach, New York City, on the brief), for Defendant-Appellant Harry Hunt.

        Donald A. Harwood, New York City, for Defendant-Appellant Shannon Jimenez.

        William Stampur, New York City (Jennifer L. Ritter, Hurwitz Stampur & Roth, New York City, on the brief), for Defendant-Appellant Raymond Robinson.

        Erica Horwitz, New York City (David Gordon, Gordon & Horwitz, New York City, on the brief), for Defendant-Appellant Wilfredo Arroyo.

        Joel M. Stein, New York City, for Defendant-Appellant David Robinson.

        Before: FEINBERG, KEARSE, and CARDAMONE, Circuit Judges.

        KEARSE, Circuit Judge:

        Defendants Gerald Miller, Ronald Tucker, Roy Hale, Waverly Coleman, Harry Hunt, Shannon Jimenez, Raymond Robinson, Wilfredo Arroyo, and David Robinson, appeal from judgments entered in the United States District Court for the Eastern District of New York after jury trials before Raymond J. Dearie, Judge, convicting them of a host of crimes in connection with their participation in a criminal enterprise engaged in the distribution of narcotics. All nine defendants were convicted of conspiracy to distribute and to possess with intent to distribute cocaine base, in violation of 21 U.S.C. § 846 (1994); all except Jimenez were convicted of conducting the affairs of an enterprise through a pattern of racketeering activity, in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(c) (1994); most were convicted of distributing cocaine base, in violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(A) (1994): Miller (four counts), Tucker (one count), Coleman (three counts), Raymond Robinson (two counts), Arroyo (four counts), and David Robinson (three counts); and three, Hale, Hunt, and Arroyo, were convicted on one count of possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (1994). In addition, Miller was convicted on one count of engaging in a continuing criminal enterprise, in violation of 21 U.S.C. §§ 848(a) and 848(b)(1)(A) (1994), and one count of conducting a financial transaction with proceeds from narcotics transactions, in violation of 18 U.S.C. § 1956(a)(1)(B) (1994); and Arroyo was convicted on one count of using a facility in interstate commerce to facilitate and promote unlawful activity, in violation of 18 U.S.C. § 1953(a)(3) (1994). Defendants were sentenced principally to the following terms of imprisonment: Miller to seven concurrent life terms, plus a 20-year term to be served concurrently with his life terms; Tucker to three concurrent 168-month terms; Hale to two concurrent life terms, plus a 20-year term to be served concurrently with his life terms; Coleman to five concurrent 156-month terms; Hunt to two concurrent life terms, plus a 20-year term to be served concurrently with his life terms; Jimenez to one 360-month term; Raymond Robinson to four concurrent 180-month terms; Arroyo to six concurrent life terms, plus one term of five years and one term of 20 years, both to be served concurrently with his life terms; and David Robinson to five 232-month terms, to be served concurrently with a sentence imposed in New York Supreme Court. Each period of imprisonment was to be followed by one or more periods of supervised release, generally five years in length.

        On appeal, defendants make numerous challenges to their convictions, including challenges to the constitutional and statutory validity of the jury selection plan in effect in the Eastern District of New York at the time of their trial; the government's use of evidence gathered through wiretaps and pen registers; the district court's refusals to conduct a Massiah hearing concerning the testimony of a cooperating witness and a Mastrangelo hearing concerning the admission of hearsay evidence as to statements by homicide victims; the court's jury instructions and the sufficiency of the evidence with regard to certain aspects of the RICO count; and various other trial and procedural rulings

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and sentencing calculations. In addition, Miller contends, and the government concedes, that under the Double Jeopardy Clause, he could not properly be convicted of both narcotics conspiracy and engaging in a continuing criminal enterprise. Accordingly, we reverse Miller's narcotics conspiracy conviction and remand to the district court for dismissal of that charge against him. For the reasons below, we find no basis for reversal in any of defendants' other arguments, and we therefore affirm the judgments of conviction in all other respects.

       I. BACKGROUND

        The present appeals arise out of the prosecution of these defendants in connection with their participation in the activities of a gang known as the "Supreme Team," whose business was the distribution of cocaine base ("crack") by means of a RICO enterprise conducted through a campaign of violent enforcement and retribution. The seven defendants other than Coleman and Raymond Robinson were tried together (the "Miller Trial"). Coleman, who was arrested too late to be included in the main trial, and Raymond Robinson, to whose severance motion the government had consented, were tried together (the "Coleman Trial").

        At the Miller Trial, the government presented voluminous evidence, including tapes and transcripts of more than 100 wiretapped conversations among Supreme Team members, crime scene photographs, telephone records, fingerprint evidence, photographs of assembled Supreme Team members, firearms and ammunition, narcotics paraphernalia, and assorted documents. Among the government's approximately 80 witnesses at that trial were former accomplices including Ernesto Piniella, the gang's "chief of security"; Julio Hernandez, a member of the gang's security force; Trent Morris, the gang's primary drug courier; Toni McGee, a gang associate; and Ina McGriff, a corrupt former New York State Parole officer who had sold information to the gang. Scores of federal and state law enforcement officers testified about the discovery of homicide victims killed by the Supreme Team, crime scene analysis, searches, surveillances, and other investigative activities.

        Much of the physical evidence, surveillance evidence, and testimony by law enforcement agents was also admitted at the Coleman Trial. With respect to that trial, however, the parties agreed that there would be no evidence as to the Supreme Team's acts of violence, and the only accomplice witness was Trent Morris.

        Taken in the light most favorable to the government, the government's evidence revealed the following.

  1. Gang Structure and Operations

            The Supreme Team was a street gang organized in the early 1980s in the vicinity of the Baisley Park Houses in Jamaica, Queens, New York, by a group of teenagers who were members of a quasi-religious sect known as the "Five Percenters." Under the leadership of Kenneth "Supreme" McGriff, with Miller, his nephew, as second-in-command, the gang concentrated its criminal efforts on the widespread distribution of crack cocaine. At its 1987 peak, the Supreme Team's receipts exceeded $200,000 a day, and the gang regularly committed acts of violence and murder to maintain its stronghold on the area's drug trade. After McGriff went to jail in 1987, leadership of the Supreme Team was assumed by Miller. Miller solidified his control by increasing the security force and employing it against rivals and against Team members suspected of disloyalty. During 1987 alone, Miller and the then-incarcerated McGriff ordered at least eight homicides.

            The Supreme Team's narcotics operations used dozens of employees, including layers of drug sellers to insulate the gang leaders from the street-level activity. Team members communicated in coded language and numerical systems. To thwart law enforcement efforts further, Miller used armed bodyguards and deployed sentinels with two-way radios on rooftops. The sophistication of the gang's operation enabled it to survive the periodic targeting of various members for prosecution by the New York City Police Department ("NYPD") and the Queens County District Attorney's Office (collectively, the "State").

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            In...

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