U.S. v. White

• Citation: 116 F.3d 903,325 U.S. App. D.C. 282
• Decision Date: 27 June 1997
• Docket Number: Nos. 94-3063,s. 94-3063
• Parties: , 47 Fed. R. Evid. Serv. 472 UNITED STATES of America, Appellee v. Antone R. WHITE, a/k/a Tone, Appellant. to 94-3066.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 903

116 F.3d 903

325 U.S.App.D.C. 282, 47 Fed. R. Evid. Serv. 472

UNITED STATES of America, Appellee v. Antone R. WHITE, a/k/a Tone, Appellant.

Nos. 94-3063 to 94-3066.

United States Court of Appeals District of Columbia Circuit.

Argued March 24, 1997.

Decided June 27, 1997.

Appeals from the United States District Court for the District of Columbia (Nos. 93cr00097-01 to 93cr00097-04).

Neil H. Jaffee, Assistant Federal Public Defender, argued the cause, for appellant Antone R. White. With him on the briefs was A.J. Kramer, Federal Public Defender, Washington, DC.

Diane S. Lepley, appointed by the court, argued the cause and filed the briefs, for appellant Ronald R. Hughes.

Joseph J. Gigliotti, appointed by the court, argued the cause and filed the briefs for appellant Eric A. Hicks.

John A. Briley, Jr., Pittsburgh, PA, appointed by the court, argued the cause and filed the briefs, for appellant Dan R. Hutchinson. All counsel for appellants were also on the joint briefs.

Geoffrey G. Bestor and Steven E. Rindner, Assistant U.S. Attorneys, argued the cause, for appellee. With them on the brief were Eric H. Holder, Jr., U.S. Attorney, John R. Fisher, Leanne Shaltis Fallin, and Michael L. Volkov, Assistant U.S. Attorneys. Elizabeth Trosman, Assistant U.S. Attorney, Washington, DC, entered an appearance.

Before: WILLIAMS, HENDERSON and TATEL, Circuit Judges.

Opinion for the court filed PER CURIAM.

PER CURIAM: ¹

Four appellants, members of the First Street Crew, challenge their convictions and sentences for drug conspiracy and related crimes. We affirm.

I

Viewed in the light most favorable to the Government, see, e.g., United States v. Rawlings, 73 F.3d 1145, 1146 (D.C.Cir.1996), the evidence presented at trial established the following: Antone White and several friends, including Eric Hicks and Dan Hutchinson, sold crack cocaine in the area of First and Thomas Streets, N.W., from early 1988 until March 1993. Although White initially sold small amounts of cocaine, he soon became a wholesale supplier, selling "weight," or large amounts of crack, and fronting his cohorts smaller amounts of cocaine to sell for him. Ronald Hughes and Derrick Ballard began working with White in 1990. Together, White and his partners were known as the "First Street Crew."

Members of the First Street Crew worked together when they sold drugs. They referred customers to each other, watched out for each other to protect against police or robbers, changed money with each other to thwart attempts to trace marked bills, used common stash areas, and cut up drugs at the same house. Although White orchestrated the group's activities, Hicks took charge when, as the prosecution put it, White was "out of the neighborhood," i.e., in prison.

The Crew's drug operation and violent activities, along with the youth of the Crew's members--few were over twenty-five years old, and White employed several juveniles to hold and run drugs for him--caught the attention of the United States Attorney's office and the Metropolitan Police Department. In August 1992, an acquaintance of White, Arvell Williams, walked into an Assistant United States Attorney's office and offered his help in investigating the First Street Crew. Sergeant Dale Sutherland, an undercover officer with the Metropolitan Police Department, became Williams's primary contact. Sutherland and Williams arranged six drug purchases from members of the First Street Crew, on August 14, 19, and 21, September 3 and 8, and October 2, 1992. On several of those occasions, Williams wore a concealed tape recording device called a "NAGRA." Williams bought crack from Hutchinson, White, and other members of the First Street Crew.

Some time after the September 8 transaction, White began suspecting that Williams was "hot," i.e., that he was working for the police, and that Sutherland was an undercover officer. Williams made his last purchase from White on October 2. Returning to the undercover vehicle, Williams, visibly shaken, told one police officer that White would not talk to him.

On October 5, Williams and Officer Sutherland arranged to purchase crack cocaine from Hicks and Derrick Ballard. The next afternoon, while waiting for Ballard in the passenger seat of Ballard's car, Williams was shot sixteen times at close range by two armed men who ran out of a nearby alley. Williams was pronounced dead on the scene. Several witnesses identified the shooters as White and Hughes.

In March 1993, White, Hicks, Hughes, Hutchinson, and Ballard were charged in a twenty-six-count indictment with conspiracy to distribute cocaine base, RICO conspiracy, and numerous individual counts of drug distribution. White and Hicks were charged with engaging in a continuing criminal enterprise (CCE). Hicks was also charged with using or carrying a firearm in relation to a drug trafficking crime, a violation of 18 U.S.C. § 924(c) (Supp.1996). White and Hughes were charged with the murder of Arvell Williams in furtherance of a CCE, first-degree murder while armed, using and carrying a firearm in relation to a drug trafficking crime, and possession of a firearm during a crime of violence.

Prior to trial, the prosecution filed a motion to admit out-of-court statements made by Arvell Williams during debriefing sessions and before and after drug transactions, arguing that since defendants had "procured Williams's unavailability"--that is, killed him--they had waived their confrontation rights and hearsay objections to Williams's statements. At a motions hearing in October 1993, the prosecution presented, through a police detective, the testimony of several eyewitnesses to the shooting. Finding that the Government had proved by a preponderance of the evidence that Hughes, White, and Ballard conspired to murder Williams, the court ruled that those three defendants had waived their confrontation rights and hearsay objections to Williams's statements. United States v. White, 838 F.Supp. 618, 624 (D.D.C.1993). The court ruled that none of Williams's statements could be used against Hicks and Hutchinson, who, the prosecution eventually conceded, had not waived their confrontation rights. Id. & n. 8.

After the district court granted the Government's motion to admit Williams's statements against White, Hughes, and Ballard, Hicks and Hutchinson filed motions to sever their trial from the others. Denying the motion to sever, the trial court found the Government's offer to redact any of Williams's statements that mentioned Hicks, Hutchinson, the "Crew," or the "First Street Crew," along with its own intention to give a limiting instruction on the use of Williams's testimony, sufficient to prevent prejudice to Hicks and Hutchinson.

Trial began on November 8, 1993. In late December, Derrick Ballard pled guilty to drug conspiracy and assault charges. In late January 1994, the Government rested its case. Following defendants' motions for judgment of acquittal, the district court dismissed the RICO conspiracy charges against Hutchinson and Hughes.

On January 28, 1994, the case went to the jury. Three weeks later, the jury returned verdicts on some of the charges in the indictment, finding White, Hughes, Hicks and Hutchinson guilty of conspiracy to distribute crack cocaine, White and Hicks guilty of RICO conspiracy, and all four defendants guilty of individual counts of distribution. The jury acquitted Hicks of the section 924(c) charge. Continuing its deliberations on the remaining charges, the jury was unable to reach consensus. In early March, the district court declared a mistrial on the remaining counts of the indictment.

Several weeks later, defendants filed a motion for a new trial, relying on an affidavit from the jury foreperson stating that "[i]n the course of our jury deliberations," one of the jurors had told the others that she had spoken with a Government witness's sister, who had told her that a potential Government witness had been killed during the trial and that "Antone White and his group were responsible for her death." Joint Mot. For New Trial (Mar. 31, 1994), Attach. 1. In opposition, the prosecution submitted affidavits from the government witness's four sisters stating that they knew no jurors nor anything about the murder of another government witness, along with a second affidavit from the foreperson attesting that the juror's statement came in late February, after the jury had returned its partial verdicts. The district court denied defendants' new trial motion.

White was sentenced to life in prison on the drug conspiracy count, to run concurrently with a life sentence on the RICO conspiracy count and with 240- and 480-month sentences on individual drug distribution and aiding and abetting counts. Hicks received the same sentence. Hughes received a life sentence on the drug conspiracy count, to run concurrently with 240-month sentences on each of three drug distribution counts. Hutchinson was sentenced to 300 months in prison on the drug conspiracy count, to run concurrently with 300-month sentences on each of two drug distribution counts.

II

A. Admission of Out-of-Court Statements

The defendants make a number of challenges to the admission of the out-of-court statements of Arvell Williams, the potential witness whose absence defendants procured by murder. They claim that the government should have been required to prove the misconduct--a curiously bloodless term, in this context--that led to the loss of their Sixth Amendment confrontation rights by clear and convincing evidence, rather than merely by a preponderance. They also argue that, even if the trial court correctly resolved the confrontation clause issue, it should have excluded the hearsay as inherently unreliable. Finally, they object to the court's exclusive reliance on hearsay evidence in its initial finding that defendants had dispatched Williams, and to the sequence the court followed in determining admissibility.

The Sixth...