U.S. v. Riddick, 97-1433

• Decision Date: 25 September 1998
• Docket Number: No. 97-1433,Nos. 97-1367,No. 97-1367,97-1433,97-1367,s. 97-1367
• Citation: 156 F.3d 505
• Parties: UNITED STATES of America, Appellant in, v. Harry Lee RIDDICK, Jr., Harry Lee Riddick, Appellant in
• Court: U.S. Court of Appeals — Third Circuit

Page 505

156 F.3d 505

UNITED STATES of America, Appellant in No. 97-1433, v. Harry Lee RIDDICK, Jr., Harry Lee Riddick, Appellant in No. 97-1367.

Nos. 97-1367, 97-1433.

United States Court of Appeals, Third Circuit.

Argued July 20, 1998.

Decided Sept. 25, 1998.

Glennis L. Clark (argued) Allentown, PA, for Appellant in No. 97-1367.

Michael R. Stiles, United States Attorney, Robert E. Courtney, III, Deputy United States Attorney, Walter S. Batty, Jr., Assistant United States Attorney, Barbara L. Miller (argued) Assistant United States Attorney, Philadelphia, PA, for Appellant in No. 97-1433.

Before: STAPLETON and ROSENN, Circuit Judges, and RESTANI, Judge ^*

OPINION OF THE COURT

RESTANI, Judge.

Harry Lee Riddick, Jr. appeals his conviction following a jury trial. Riddick raises multiple claims including that there was a variance between the single conspiracy charged and the evidence produced at trial, there was insufficient evidence to support his continuing criminal enterprise ("CCE") conviction, the Government both improperly disclosed and presented misleading grand jury testimony, the court erred in denying Riddick's suppression motion, and the Government conducted an unauthorized wiretap. The court affirms the conviction.

The Government cross-appeals Riddick's sentence to a term of 33 years on the CCE count. The Government contends that the district court erred in assigning Riddick an offense level of 42 based on the United States Sentencing Commission, Guidelines Manual, § 2D1.5 (Nov.1995) (hereinafter "USSG"), the guideline applicable to his CCE conviction, even though USSG § 2D1.2, the guideline applicable to his conviction for distribution of cocaine near a school, required a higher offense level of 43 and a mandatory life sentence. The court vacates the sentence and remands for resentencing. ¹

Factual Background

This case began with an indictment against twenty three defendants who engaged in a drug distribution conspiracy in Pennsylvania from 1989 to 1994. The Government filed a superseding indictment in July 1994 against the original defendant and co-defendants, including Riddick. The indictment charged Riddick with one count of engaging in a continuing criminal enterprise (21 U.S.C. § 848(a)), one count of conspiring to distribute more than five kilograms of cocaine (21 U.S.C. § 846), thirteen counts of distributing cocaine in or near a school (21 U.S.C. § 860(a)), and one count of distribution of cocaine (21 U.S.C. § 841(a)(1)).

On February 6, 1996, a jury convicted Riddick on all counts. ² Following a sentencing hearing, the court found Riddick's CCE involved in excess of 150 kilograms of cocaine. The court based this finding on the Government's calculation that Riddick was responsible for in excess of 350 kilograms, the probation officer's calculation which was in excess of 250 kilograms, and the court's own detailed assessment of the trial evidence, including evidence of the length of time of the conspiracy, the suppliers, the sellers, and the amount of cocaine distributed each week.

The Government argued that Riddick should be sentenced under the Sentencing Guideline section resulting in the highest offense level within the group of counts. The Government reasoned that here, the conviction for distribution of cocaine near a school, rather than the conviction for operating a CCE, provided the higher offense level and life imprisonment. Moreover, the Government argued that the court was not precluded from sentencing Riddick on the distribution near a school counts because that offense is not a lesser included offense of the CCE count. The district court rejected this argument and held that "if you charge ... continuing criminal enterprise, ... that offense is so odious and so severe that if the Government secures a conviction on that offense, then the sentence should be imposed on that offense, even if it [is] not technically a lesser included offense."

Thus, the court imposed a sentence of 33 years on the CCE count. The district court did not dismiss the remaining counts and did not sentence Riddick on them. This appeal followed.

Jurisdiction

The district court exercised jurisdiction pursuant to 18 U.S.C. § 3231 (1994) because the case involved offenses against the laws of the United States. This court has jurisdiction of appeals from all final decisions of the district court pursuant to 28 U.S.C. § 1291 (1994). In addition, this court has jurisdiction over an appeal by the Government for review of a final sentence pursuant to 18 U.S.C. § 3742(b) (1994).

Discussion

I.

A. Variance

Riddick claims that there was a prejudicial variance between the indictment and the trial evidence because he and co-defendant Shannon Riley were charged as members of a single conspiracy, but the trial evidence showed that they were members of separate conspiracies. It is undisputed that the indictment charged that Riddick, and all of his co-defendants including Shannon Riley, were part of a single conspiracy to distribute more than five kilograms of cocaine using Phill's Bar and Grill, Allentown, as a headquarters and safe haven for drug dealing. Thus, the only remaining question is whether the jury properly found the existence of a single conspiracy. The existence of a single conspiracy is a finding of fact that must be sustained if, when viewed in the light most favorable to the government, there is substantial evidence to support that finding. United States v. Smith, 789 F.2d 196, 200 (3d Cir.1986).

The court finds that the Government presented substantial evidence supporting the jury's finding of a single conspiracy. The trial evidence showed that Riddick and Riley closely cooperated and consulted each other to protect Riddick's ongoing cocaine operation. They supplied each other with information about law enforcement investigations. Riley used the "safe haven" that Riddick created at Phill's Bar and Grill to sell cocaine, which she was permitted to do only because she was associated with Riddick. Thus, there was no variance between the indictment and the evidence, both of which show a highly interdependent group of sellers who shared a unity of purpose and who were led by Riddick.

B. CCE Conviction

Riddick claims that there was insufficient evidence to support his conviction for operating a continuing criminal enterprise because the Government's evidence showed that Riddick supervised only two "runners," not five or more persons as required by 21 U.S.C. § 848(c). ³ The court reviews the sufficiency of the evidence in the light most favorable to the government and must credit all available inferences in favor of the government. United States v. Dickens, 695 F.2d 765, 779 (3d Cir.1982).

The court finds that the Government presented sufficient evidence to support Riddick's conviction for operating a CCE. The trial testimony shows that Riddick controlled more than five couriers and sellers. Riddick hired sellers, set daily guaranteed wages for sellers, set cocaine prices, provided pagers, and numerical identifier codes to his sellers, posted bail for arrested sellers, and obtained confidential police information to protect sellers. Riddick stationed certain sellers at Phill's Bar & Grill, where they had the right to sell cocaine. Other sellers sold door to door. Therefore, the testimony showed that Riddick had supervised numerous sellers in a unified drug ring.

C. Grand Jury Testimony

Riddick appeals the district court's denial of his motion for a new trial by raising two arguments regarding grand jury testimony. Riddick claims that the contents of a newspaper article published six weeks before Riddick was indicted showed that confidential grand jury testimony by government witness Nigel McFarlane was leaked to the press in violation of Fed.R.Crim.P. 6(e). The district court's denial is reviewed for abuse of discretion. United States v. Gilsenan, 949 F.2d 90, 95 (3d Cir.1991). This argument is without merit as Riddick has failed to cite any part of McFarlane's grand jury testimony to support his claim.

Second, Riddick claims that the Government presented misleading testimony to the grand jury or withheld exculpatory testimony from the grand jury. All of the "examples" cited by Riddick were refuted by the actual transcripts of the grand jury proceedings. Thus, this argument is also without merit.

D. Motion to Suppress Evidence

Riddick also claims that the district court erred in denying his motion to suppress evidence from the 1994 search of his home at 1106 1/2 Tilghman Street, on the grounds that: (1) the warrant contained stale facts, (2) the warrant failed to list with particularity the items to be seized, and (3) the agents seized items from 1108 Tilghman Street, a location not listed in the warrant. Riddick did not raise the first two claims in his suppression motion and therefore the district court's denial is reviewed for plain error. See Fed.R.Crim.P. 52(b).

Riddick's first two claims are without merit. The warrant lists the items to be seized with sufficient specificity. Moreover, the information in the warrant was not stale; it showed an entrenched ongoing five-year drug operation in which Riddick frequently used his home to conduct cocaine transactions, and in which the most recent drug sale by one of his employees occurred only six days before the warrant was executed.

As for Riddick's third claim, the court reviews the district court's denial of the motion to suppress for "clear error as to the underlying facts, but exercise[s] plenary review as to its legality in light of the court's properly found facts." United States v. Inigo, 925 F.2d 641, 656 (3d Cir.1991). The district court did not err in denying Riddick's motion to suppress all evidence seized during an August 12, 1994, search of his residence. Riddick failed to substantiate his claim that Government agents improperly searched an adjoining property. Rather, the suppression hearing testimony showed that the agents...