U.S. v. Kincaide

• Decision Date: 21 May 1998
• Docket Number: Nos. 96-1771,96-1772 and 96-1915,s. 96-1771
• Citation: 145 F.3d 771
• Parties: 49 Fed. R. Evid. Serv. 655 UNITED STATES of America, Plaintiff-Appellee, v. Willie KINCAIDE (96-1771), Christian R. Key (96-1915), Keith Elbert Riley (96-1772), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 771

145 F.3d 771

49 Fed. R. Evid. Serv. 655

UNITED STATES of America, Plaintiff-Appellee, v. Willie KINCAIDE (96-1771), Christian R. Key (96-1915), Keith Elbert Riley (96-1772), Defendants-Appellants.

Nos. 96-1771, 96-1772 and 96-1915.

United States Court of Appeals Sixth Circuit.

Argued March 19, 1998.

Decided May 21, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied in No. 96-1915 July 20, 1998.

Melvin Houston (argued and briefed), Detroit, MI, Willie Kincaide, Leavenworth, KS, for Defendant-Appellant Willie Kincaide.

Keith M. Nathanson (argued and briefed), Nathanson & Nathanson, Farmington Hills, MI, Keith Elbert Riley, Detroit, MI, for Defendant-Appellant Keith Elbert Riley.

Kevin M. Schad (argued and briefed), Schad, Buda, Lucia & Cook, Cincinnati, OH, Christian R. Key (briefed), Otisville, KY, for Defendant-Appellant Christian R. Key.

David Debold (argued and briefed), Amy B. Hartmann, Office of the U.S. Attorney, Detroit, MI, for Plaintiff-Appellee.

Before: KENNEDY, WELLFORD, and SILER, Circuit Judges.

OPINION

KENNEDY, Circuit Judge.

Defendants Willie Kincaide, Christian Key, and Keith Riley were convicted on various counts of a nine-count indictment that a grand jury returned against thirteen alleged participants in a drug distribution ring. Count one of the indictment charged Kincaide, Key, and Riley under 21 U.S.C. §§ 841(a)(1) and 846 with conspiring to possess with intent to distribute and to distribute heroin, cocaine, and cocaine base from July 1, 1994 through December 14, 1994. Count two charged Kincaide with possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and aiding and abetting under 18 U.S.C. § 2. Count five charged Key under 21 U.S.C. § 841(a)(1) with possessing seven kilograms of cocaine with the intent to distribute and under 18 U.S.C. § 2 with aiding and abetting. Count six charged Key and Riley with the possession of heroin with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and aiding and abetting under 18 U.S.C. § 2. Count Eight charged Key and Riley under 18 U.S.C. § 922(g)(1) as felons in possession of firearms. Finally, count nine charged Kincaide with possessing a firearm while he was a fugitive from justice, in violation of 18 U.S.C. § 922(g)(2). After a jury trial in the United States District Court for the Eastern District of Michigan, defendants were convicted of various offenses. Each defendant alleges that the District Court committed errors that require reversal of his convictions, and defendants Key and Riley also contest the validity of their sentences. For the reasons that follow we affirm the convictions and sentences of each of the defendants.

I. Facts

In the middle of 1994, acting on a tip from a confidential informant, agents of the Federal Bureau of Investigation (FBI) in Detroit began investigating one Kevin Hill for narcotics activities. The FBI agents made controlled purchases of drugs from Hill, placed him under surveillance, and placed pen registers on his telephone. The FBI then received judicial authorization to place a wiretap on Hill's phone and tape record conversations relating to the distribution of narcotics. Investigators identified others suspected of participating in the distribution of cocaine and heroin in Detroit and received authorization for additional wiretaps. These suspects included defendants Kincaide, Key, and Riley, as well as Harlan Gibbs and defendant Kincaide's brother Sam Kincaide.

The defendants' heroin and cocaine distribution organization worked as follows. Gibbs and defendant Kincaide operated crack and heroin distribution houses on Detroit's east side and employed Kevin Hill and Sam Kincaide to handle their daily operations. In June and July of 1994, Gibbs and defendant Kincaide began working with defendant Key, who had connections with a cocaine and heroin supplier in the New York City area. Gibbs, Kincaide, and Key became partners, and Gibbs accompanied Key on at least eight supply trips to New York City. Sometimes defendant Kincaide also went, and at least once defendant Riley accompanied them. Key traveled to New York in his GMC Jimmy, which had a secret compartment under the floorboards of the driver's side that his suppliers installed to hide drugs and money. Defendant Riley served as defendant Key's lieutenant. They worked out of an apartment that Riley rented on East Larned in Detroit (the "East Larned apartment"). Upon returning to Detroit, Key stashed the powder cocaine until it was delivered to Gibbs and Kincaide, who then oversaw the production and distribution of cocaine base. Riley and Key processed the uncut heroin and delivered bundles of the packaged of heroin to Gibbs for distribution. Sometimes Key was alone when he delivered the drugs to Gibbs, often he was accompanied by Riley, and at least once, Riley delivered the heroin to Gibbs by himself.

On November 15, 1994, Key and Gibbs left Detroit with seven kilograms of defective cocaine stashed in the secret compartment of Key's GMC Jimmy. They drove to New York, exchanged the unsaleable cocaine for seven kilograms of higher quality cocaine, and returned to Detroit at approximately 5:00 a.m. on November 17. Around 8:00 that morning, FBI agent Larry Kuhl saw Key's truck outside the East Larned apartment and took up a position from which he could see the apartment building and the truck. Riley and Key emerged from the building, and Riley got in a van and left. Key moved the GMC Jimmy from the rear of the parking lot to a spot within sight of the apartment and returned inside.

Kuhl, knowing that a search warrant for the East Larned apartment had already been obtained, summoned a search team. At approximately 10:30 a.m., a team of law enforcement agents conducted a warrant-based search of the apartment. Along with defendant Key, the search team found the following evidence: eighty-eight packets of heroin; powder cocaine; a bag full of ammunition; a loaded Smith & Wesson .357 revolver adjacent to the couch; a 9 millimeter semi-automatic pistol in plain view on the floor of the kitchen; a loaded .22 caliber rifle in a living room closet; a loaded .380 handgun in a bedroom closet; thousands of dollars in cash; chemicals used to cut heroin; surgical masks and gloves; packaging envelopes; and a triple beam scale. Meanwhile, Agent Kuhl noticed what appeared to be a secret compartment on the exterior of the GMC Jimmy's undercarriage below the driver's seat. The FBI impounded the vehicle, and an inventory search revealed approximately seven kilograms of powdered cocaine in the secret compartment.

On May 23, 1995, a grand jury in the Eastern District of Michigan returned a nine-count indictment against thirteen people, including Key, Kincaide, Riley, and Gibbs. Gibbs entered into a plea agreement and testified at the jury trial of defendants Key, Kincaide, and Riley. Despite the warnings of the District Court, defendants Key and Kincaide waived their rights to counsel and elected to represent themselves. On February 20, 1996, after a joint trial that lasted five weeks, the jury convicted Key and Kincaide of all of the charges against each of them. It convicted Riley of the drug conspiracy charge and the charge of being a felon in possession of a weapon, but acquitted him of possessing heroin with an intent to distribute.

The District Court sentenced Riley to 200 months' imprisonment on the drug conspiracy charge and to a concurrent 120 month sentence on the charge of possession of a weapon by a felon. Kincaide was sentenced to imprisonment for life on the drug conspiracy count, to a concurrent term of forty years' imprisonment on the heroin possession count, and to a concurrent term of ten years' imprisonment on the fugitive in possession of a firearm count. Key received concurrent 360-month prison terms on the drug conspiracy and possession charges and a concurrent 120-month term of imprisonment on the charge of possession of a weapon by a felon. All three defendants filed timely notices of appeal, and we have jurisdiction under 28 U.S.C. § 1291.

II. Discussion

This case presents the following issues: (1) each defendant argues that the District Court erred in admitting the tape recordings made during the government's wiretap investigation; (2) defendant Key challenges the District Court's denial of his motion to suppress the evidence gathered in the searches of the East Larned apartment and his automobile; (3) defendant Kincaide challenges the District Court's denial of his discovery motion; (4) defendants Key and Riley argue that the District Court erred when it denied their pre-trial motions to be tried separately and failed to order a mistrial; (5) defendant Riley alleges that there was insufficient evidence to support his conviction on the drug conspiracy charge; (6) defendant Key attacks his conviction of being a felon in possession of a firearm; (7) defendant Kincaide argues that the District Court erroneously admitted evidence of violent and fraudulent acts committed by Kincaide and other members of his organization; (8) defendants Key and Riley assert that the District Court committed errors in its calculation of their sentences; and (9) Riley and Kincaide raise ineffective assistance of counsel claims. We consider these claims in turn.

A. Wiretap Evidence

All three defendants argue that the District Court committed error when it admitted tape recordings of telephone conversations that the Government intercepted pursuant to judicial authorization under 18 U.S.C. § 2518. They argue that the manner in which the tape recordings were sealed did not comply with the requirements set forth in 18 U.S.C. § 2518(8)(a). In addition, defendant Key argues that the District Court abused its discretion by failing to consider the merits of his pretrial motion to suppress these tapes, thereby denying him the opportunity to raise several challenges to the wiretap recordings. We review...