16 F.3d 1429 (6th Cir. 1994), 93-5103, United States v. Wright

Docket Nº:93-5103.
Citation:16 F.3d 1429
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Kevin Eugene WRIGHT, Defendant-Appellant.
Case Date:February 14, 1994
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 1429

16 F.3d 1429 (6th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,

v.

Kevin Eugene WRIGHT, Defendant-Appellant.

No. 93-5103.

United States Court of Appeals, Sixth Circuit

February 14, 1994

Argued and Submitted Jan. 15, 1994.

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Van S. Vincent, Robert Anderson, Asst. U.S. Attys., Ernest W. Williams, Office of U.S. Atty., Nashville, TN, Michael E. O'Neill, U.S. Dept. of Justice, Washington, DC (argued and briefed), for U.S.

N. Reese Bagwell, Bagwell, Bagwell, Parker & Riggins, Clarksville, TN (briefed), for Kevin Wright.

Before: KENNEDY, MILBURN, and GUY, Circuit Judges.

MILBURN, Circuit Judge.

Defendant Kevin Wright appeals his convictions for one count of conspiring to distribute cocaine base in violation of 21 U.S.C. Sec. 846, two counts of possessing cocaine base with intent to distribute in violation of 21 U.S.C. Sec. 841(a), and two counts of carrying or using a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. Sec. 924(c). On appeal, the issues are (1) whether the district court properly denied defendant's motion to suppress, (2) whether the evidence at trial was sufficient to sustain defendant's convictions, and (3) whether the district court properly admitted testimony

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concerning defendant's prior bad acts. For the reasons that follow, we affirm.

I.

On August 9, 1991, as part of a narcotics investigation, police officers in Springfield, Ohio, arrested Aaron Bray, Roscoe Kidd, Jr., and David McWhorter for possession of crack cocaine. At the time of his arrest, Bray was on parole for an earlier drug-related conviction. After spending one night in jail, Bray requested to speak with a police officer. In response to this request, Officer Barry Eggers, a member of the Springfield Narcotics Unit, met with Bray on August 10 and advised him of his Miranda rights. Bray then signed a waiver of those rights and voluntarily spoke with Officer Eggers.

Bray stated that he did not want to go back to prison and that he was willing to provide information to the police in exchange for leniency. Eggers told Bray that there was nothing he could do about the parole violation charge but that he could look into the Ohio drug charges. Bray then gave Eggers a list of drug dealers in the Springfield area. Included in this list was defendant Kevin Wright, also known under the alias "Charlie Brown," who Bray indicated was capable of selling the most drugs of anyone he had named. Bray also informed Officer Eggers that he, Kidd, McWhorter, and defendant had plans to go to Clarksville, Tennessee, in late August for the purpose of selling drugs. Although Bray had been arrested, he anticipated that the Clarksville trip would commence as planned without him.

Bray described the plans for this trip in detail, stating that the trip would be made in a rental car, probably rented from Thrifty Car Rentals in Vandalia, Ohio, near the Dayton airport, and that nine ounces of crack cocaine would be taken. Bray stated that the cocaine would be kept in a potato chip bag, to throw off any drug-sniffing police dogs, and that a TEC 9 (a 9 mm. semi-automatic weapon) and another 9 mm. pistol would be taken. These weapons would be stored in a pink gym bag, and ammunition would be stored in the glove compartment. Bray further stated that upon arriving in Clarksville, they would stay at the Motel 6.

On August 15, Officer Eggers returned to the jail to speak with Bray and informed him that the state prosecutor did not believe Bray's story. To convince the officer that his information about the forthcoming trip was true, Bray provided details of a previous drug-selling trip to Clarksville in late July. On that trip they had used the same mode of operation: Bray, Kidd, McWhorter, and defendant had rented a Chrysler from Thrifty Car Rentals, initially stayed at the Motel 6, but then moved to a second motel in order to avoid detection, sold six ounces of crack cocaine for $15,000, and carried firearms in a pink gym bag. While in Clarksville, they distributed the drugs throughout the Lincoln Homes housing project from an apartment rented by a woman named "Maria."

After meeting with Bray, Officer Eggers called Officer John Atkins of the Clarksville Police Department and informed him of the upcoming trip in August and of the previous trip in July. Officer Eggers also faxed pictures of McWhorter, Kidd, Bray, and defendant Kevin Wright to Officer Atkins. Atkins and other members of the Clarksville Police Department then verified the July trip by checking the registration logs at the Motel 6 and the Midtowner Motel. Those records showed that on July 29, defendant Kevin Wright had checked into the Motel 6, listing two adults on the sign-in card and giving an address in Springfield, Ohio. A trace of the car defendant listed revealed that the automobile was a Dodge rented from Thrifty Car Rentals in Vandalia, Ohio. Also on July 29, there was a registration for two adults under the name "Bill Benson." The car listed on that registration was traced to David McWhorter. On July 30, defendant Kevin Wright checked into the Midtowner Motel, listing the same address and car as he had at the Motel 6.

Police records also indicated that on July 31, 1991, officers of the Clarksville, Tennessee, police department obtained a search warrant for apartment 13C in the Lincoln Homes housing project located in Clarksville, Tennessee. The warrant was based on a confidential informant's purchase of crack cocaine

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from that apartment. Upon executing the search warrant, the officers found drug residue and drug paraphernalia, including an assortment of pipes, roach clips, baking soda, razor blades, and straws. The officers arrested the four occupants of the apartment. Three of these individuals gave statements, claiming that four out-of-state persons had been in the apartment selling crack cocaine but had left just prior to the execution of the search warrant. The men had left following a dispute with a dissatisfied drug customer, which ended in a shoot-out.

After verifying the July trip, the Clarksville police began informal surveillance of the parking lots of the two motels, looking for rental cars with Ohio plates. On Saturday, August 23, an officer located a Dodge Dynasty with Ohio plates in the Motel 6 parking lot. A license plate check revealed that the car had been rented from Thrifty Car Rentals in Vandalia, Ohio. The officer noticed that the side window of the car had been smashed with a rock. Officer Atkins then arrived on the scene and checked the motel registration log. Defendant Kevin Wright had checked into room 221 the night before, listing the same Springfield, Ohio, home address that he had listed in July. Defendant's brother, Samson Wright, had checked into room 223, listing "W221," presumably indicating he was with room 221.

As the police conducted surveillance, they observed one person leave the motel and walk toward the Lincoln Homes housing project. Another officer confirmed that this person entered an apartment there. Defendant and Samson Wright then discovered the broken car window and called the Clarksville police. When police arrived, two males, one who identified himself as Samson Wright, reported the damage. A short time later, the police observed two males leave room 221 carrying several bags, including a pink gym bag. One male from room 223 then joined them. The three individuals, later determined to be defendant Kevin Wright, Samson Wright, and Dwight Gober, got into the rented car and ran several errands, including going to a car wash and vacuuming the glass out of the car. Ultimately, the officers followed the car into the parking lot of the Midtowner Motel, across the street from the Motel 6, where defendant, who was driving the vehicle, pulled over and parked. Defendant exited the car and walked toward the motel office. The trunk latch had been released from inside the car, and Dwight Gober, the front seat passenger, exited the car and began walking toward the rear of the car. Samson Wright remained in the back seat of the car. Clarksville police officers, with weapons drawn, then surrounded the car, removed defendant from the office, and forcibly placed all three men on the ground. The police officers handcuffed defendant's hands behind his back.

Officer Atkins testified that as the officers moved to secure the area, he noticed that defendant was "moving his handcuffs around to the side[,] attempting to get into his shorts or underwear." I Tr. 62 (John Atkins). Atkins testified that, believing defendant was reaching for a gun, police officers subdued defendant, patted him down, and removed a plastic bag containing a large rock of crack cocaine from his crotch area. At this time, the three men were informed they were under arrest for trafficking in cocaine.

The officers then searched the car. Inside the trunk, police found a pink gym bag that contained a 9 mm. semi-automatic pistol, approximately $600 in cash, and nine bags filled with crack cocaine. From another gym bag, police recovered a TEC 9 pistol. A potato chip bag also was found, although it is unclear whether the drugs were found inside the potato chip bag or elsewhere in the trunk.

On March 4, 1992, a grand jury indicted defendant for conspiring to distribute cocaine base between July 25 and August 23, 1991, in violation of 21 U.S.C. Sec. 846 (count one); possessing cocaine base with intent to distribute from July 27 to July 31, 1991, in violation of 21 U.S.C. Sec. 841(a) (count two); carrying or using a firearm during and in relation to a drug trafficking crime from July 27 to July 31, 1991, in violation of 18 U.S.C. Sec. 924(c) (count three); possessing cocaine base with intent to distribute on August 23, 1991, in violation...

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