USA v. Layne

• Decision Date: 18 June 1999
• Docket Number: No. 97-5097,97-5097
• Citation: 192 F.3d 556
• Parties: (6th Cir. 1999) United States of America, Plaintiff-Appellee, v. Wendell Layne, Defendant-Appellant. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 556

192 F.3d 556 (6th Cir. 1999)

United States of America, Plaintiff-Appellee, v. Wendell Layne, Defendant-Appellant.

No. 97-5097

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: June 18, 1999

Decided and Filed: September 16, 1999

Appeal from the United States District Court for the Eastern District of Tennessee at Chattanooga; No. 96-00059--R. Allan Edgar, Chief District Judge. [Copyrighted Material Omitted]

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[Copyrighted Material Omitted] Paul W. Laymon, Jr., OFFICE OF THE U.S. ATTORNEY, Chattanooga, Tennessee, for Appellee.

Susan G. James, SUSAN G. JAMES & ASSOCIATES, Montgomery, Alabama, for Appellant.

Before: JONES, COLE, and CLAY, Circuit Judges.

OPINION

CLAY, Circuit Judge.

Defendant Wendell Layne appeals an order entered by the district court on January 13, 1997, convicting and sentencing him to life in prison without parole for (1) three counts of conspiracy to manufacture, distribute and possess with intent to distribute cocaine in violation of 21 U.S.C. § 846; (2) aiding and abetting possession with intent to distribute cocaine in violation of 18 U.S.C. § 2 & §841(a)(1); (3) attempting to possess with intent to distribute powder cocaine in violation of 21 U.S.C. §841(a)(1) & §846; (4) distribution and possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1); (5) using and carrying a firearm during a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1); (6) being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1); (7) obstruction of justice in violation of 18 U.S.C. §1503; and (8) criminal forfeiture in violation of 18 U.S.C. § 853. Upon review, we AFFIRM in part and REVERSE in part the judgment of the district court.

I.

A. INVESTIGATION

In June or July 1994, Joe Copeland, a special agent with the Tennessee Bureau of Investigation ("TBI"), learned from Gary Bischoff that Gifford Fuller, an individual Copeland had arrested in 1985 for selling cocaine, was selling cocaine once again. Copeland arranged for Mike Finley, another TBI agent, to pose as a drug dealer from Florida and arranged for Bischoff to introduce Finley to Fuller. Finley set up a hotel room in Rhea County, Tennessee so that other agents could monitor and record the activity in the room. On the arranged meeting date, July 27, 1994, Bischoff introduced Finley to Steve Yearwood, an associate of Fuller. Finley, posing as a drug dealer, showed Yearwood a kilogram of cocaine.

The next day, Fuller himself came to meet Finley. Fuller sampled the cocaine and told Finley that although he did not have enough money to buy a kilogram, he would see someone who would have the money. The TBI followed Fuller to the residence of Defendant, located in Soddy-Daisy, Tennessee. Fuller then returned to the hotel room carrying a box containing a set of triple beam scales. Fuller told Finley that "his man" wanted him to buy an ounce of cocaine and to return the scales and ounce to him for sampling. (J.A. at 71.) Fuller said that if the man liked the cocaine, he would buy the kilogram. After Fuller paid about $1,350 for the cocaine, the TBI arrested him.

Fuller agreed to cooperate with the TBI, named Defendant as "his man," and agreed to assist the agents in their investigation of Defendant. Copeland scratched his initials onto the scales before Fuller returned them to Defendant. The agents recorded conversations between Fuller and Defendant, and heard Defendant complain that Fuller had kept the scales for so long that he had caused Defendant to miss out on opportunities to sell more cocaine. The conversations further revealed that Defendant was interested in Finley's cocaine because it was of better quality and cheaper, but would only buy it if Finley came to Defendant's residence. Because Defendant lived on a dead-end road where surveillance would be difficult, the investigation ended. Although Defendant agreed to sell Fuller a half ounce of cocaine, Defendant never showed up.

Copeland again began to investigate Defendant in 1996, with the assistance of Special Agent David Shelton of the United States Drug Enforcement Administration ("DEA"). They arranged to use Paul "Pete" Winesburgh as an informant, and from April to May 1996, the agents taped three conversations between Defendant and Winesburgh. On May 21, 1996, the agents asked Winesburgh to take three kilograms of cocaine, three guns, including a .357 Colt Python, ammunition, and assorted drug paraphernalia to Defendant with the explanation that Winesburgh had stolen the items from a drug dealer. The agents had sprayed these items, along with a cooler, with a special powder which could only be seen under a black light. When Winesburgh arrived at Defendant's residence, Defendant was present, along with Jerry Ables, Teresa Hicks, and Ed Goins. Defendant directed Ables to get a set of scales, cut into one of the cocaine packages to sample it, and then sent Ables to get tape to seal the package back up. After Defendant and Winesburgh negotiated a price, Defendant went to the neighboring residence of his mother and returned with $36,500 for Winesburgh. Defendant took the three kilograms and the Colt Python and paid Winesburgh in twenties and hundreds. Winesburgh left with the money and the two remaining firearms.

On May 22, 1996, DEA agents in possession of a warrant to arrest Defendant and monitoring Defendant's residence by airplane decided to move in when they spotted a pickup truck moving across Defendant's field. The agents discovered Defendant and Ables by an orange pickup truck, and found a small can with one kilogram of cocaine by Defendant, and another can with two kilograms of cocaine by Ables. They found a small amount of crack cocaine and $2,500 on Defendant's person. The agents found the Colt Python that Winesburgh gave to Defendant in Defendant's garage, and found other weapons in Defendant's trailer, his mother's home, and the garage, and found in Defendant's home empty gun boxes with serial numbers matching two of the guns found in Defendant's mother's home. They also found Inositol that was used to cut cocaine, baggies, containers, and the scales on which Copeland had scratched his initials in Defendant's trailer and garages. Agents discovered $671,300 in twenties and hundreds in lock boxes and a safe located in Defendant's mother's home, and found traces of the special powder in Defendant's mother's home, as well as in the garage and Defendant's trailer.

B. TRIAL

On June 12, 1996, the government filed an eleven-count indictment against Defendant, charging him in Counts 1, 4, and 6 with three counts of conspiracy to manufacture, distribute and possess with intent to distribute powder and crack cocaine in violation of 21 U.S.C. § 846; in Count 2 with aiding and abetting possession with intent to distribute powder cocaine in violation of 18 U.S.C. §§ 2 & 841(a)(1); in Count 5 with attempting to possess with intent to distribute powder cocaine in violation of 21 U.S.C. § 841(a)(1) & 846; in Count 7 with distribution and possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841; in Count 8 with using and carrying a firearm during a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1); in Count 9 with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1); in Count 10 with obstruction of justice in violation of 18 U.S.C. § 1503; and in Count 3 with criminal forfeiture in violation of 18 U.S.C. §853. ¹ On August 2, 1996, Defendant pleaded not guilty to every count.

At trial, the government introduced the testimony of Rhonda Pearce, who began buying cocaine from Defendant in 1981, 1982, or 1983, and bought cocaine from Defendant almost continuously through the time of his arrest in 1996. She testified that she usually bought cocaine from Defendant in one-sixteenth ounce quantities for $100 each, or in 3.3 gram quantities ("eight balls") for $200 each; that she occasionally saw other customers at Defendant's residence when she went to buy cocaine; and that Defendant occasionally gave her cocaine so that she would watch his mother, an elderly woman with vision problems who could not walk. ² Pearce further testified that up until two years prior to Defendant's arrest, she often saw Debbie Arnold, Defendant's long-time girlfriend, at Defendant's home, and that Arnold became absent when Teresa Hicks moved in with Defendant. ³ Pearce testified that she began observing the presence of crack at Defendant's home after Hicks arrived, and that she (Pearce), Hicks, Ables and Defendant smoked crack together on several occasions. Pearce testified that generally, Defendant gave them the crack and they did not pay for it. Pearce also testified that on occasion she observed other individuals using crack at Defendant's home.

The government also offered the testimony of its informants, Fuller and Winesburgh. Fuller testified that he began buying cocaine from Defendant in 1992, and that he continuously bought cocaine from Defendant through the time of Defendant's arrest in 1994. Fuller stated that he generally bought half-ounces of cocaine from Defendant at a price of $850 to $1,000 on at least twenty to twenty-five occasions over two years. Fuller stated that he had never known Defendant to work but that he often saw Defendant with large sums of money. ⁴ Winesburgh, who had known Defendant for almost thirty years, testified that although he himself used marijuana, he had purchased cocaine three or four times from Defendant for a friend. During his stint as an informant, Winesburgh saw Defendant using his scales to weigh cocaine and selling it to customers in baggies. He also testified that Ables served as a lookout during drug sales and that Ables was present almost every time he went to see Defendant.

Finally, the government introduced the...