201 F.3d 61 (2nd Cir. 2000), 96-1198, USA v Joyner, et al

Docket Nº:Docket Nos. 96-1198, 96-1720, 96-1721, 97-1069, 97-1196, 97-1197, 97-1292, 98-1176, 98-
Citation:201 F.3d 61
Party Name:UNITED STATES OF AMERICA, Appellee, v. ARCHIE JOYNER; TRACEY SMITH; KARIN JACKSON aka Karin Shuford; ERIC D. BRYANT aka E; SEAN L. BRYANT; CRAIG GILLESPIE, aka Mountain; CLARENCE BROWN aka Lo; DAVID SCHON aka Crazy Dave; GREGORY Y. BOWLES aka Shun, aka Young; SHATIMA TURNER aka Little; RUDOLPH W. GRIFFIN aka Rudy; JERRY LEWIS aka Luwan; NIGEL J. WI
Case Date:January 10, 2000
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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201 F.3d 61 (2nd Cir. 2000)

UNITED STATES OF AMERICA, Appellee,

v.

ARCHIE JOYNER; TRACEY SMITH; KARIN JACKSON aka Karin Shuford; ERIC D. BRYANT aka E; SEAN L. BRYANT; CRAIG GILLESPIE, aka Mountain; CLARENCE BROWN aka Lo; DAVID SCHON aka Crazy Dave; GREGORY Y. BOWLES aka Shun, aka Young; SHATIMA TURNER aka Little; RUDOLPH W. GRIFFIN aka Rudy; JERRY LEWIS aka Luwan; NIGEL J. WILLIAMS; ODELL SHANNON DAVIS aka O; RICHARD JASON LAPSLEY aka Jay; JOHN C. POLLAK, JR. aka JP; BRIAN KEITH PARKS aka Bam Bam; DARREN M. RHODES aka D, aka Dee Dee; YOLANDA TURNER aka Landis; ASARIAH JEFEREYS aka Eyes, aka Bebo; COLIN M. JONES aka C; SERITA THOMPSON; REGINALD PERRY aka Trooper, aka Man Big; MELVIN E. DOVE aka Tony, aka Tyson, aka Mel; ANTHONY A. DEVIVO aka Tony; JON P. GARDELLA aka Limpy, aka John; SHAROLYN C. CANTY aka Lynne; HELENA J. MCFARLANE aka Helena; KEVIN J. MICKENS aka Mel, aka Jamel; BRIDGET WILLIAMS; GERALD M. JIGGETS aka G, aka Jerry, aka G-man; MALKIA M. ROBINSON, aka Makia; VLADIMIR L. VINCENT aka Ricky Vlige, aka Vito; DARRYL L. WILLIAMS aka Bookie, aka John Bowens, Defendants,

JESSE M. CARTER aka Uncle Jess; CARLOS CHARLES; TEDDY T. ATKINSON; RAYMOND A. COLLINS aka Ray, aka Ron Turner; MICHAEL BARRETT aka Mike Mike; CRAIG SWEAT aka Tank; WILLIAM H. WILLOGHBY aka Crush, Defendants-Appellants.

Docket Nos. 96-1198, 96-1720, 96-1721, 97-1069, 97-1196, 97-1197, 97-1292, 98-1176, 98-­1177

United States Court of Appeals, Second Circuit

January 10, 2000

Argued: Feb. 8, 1999

Appeals from convictions and sentences in the United States District Court for the Northern District of New York (Thomas J. McAvoy, Chief Judge). We vacate certain drug conspiracy convictions, reverse certain firearm convictions, and vacate a portion of the sentence requiring restitution. We affirm in all other respects.

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THOMAS E. BOOTH, United States Dept. of Justice, Criminal Division, Washington, D.C. (Thomas J. Maroney, United States Attorney, Northern District of New York, Miroslav Lovric, Assistant United States Attorney, on the brief), for Appellee.

MARJORIE M. SMITH, Englander & Smith, Tappan, New York, for Defendant-Appellant Teddy T. Atkinson.

MELYNDA COOK, Schad, Buda, Lucia & Cook (Kevin M. Schad, of counsel), Cincinnati, Ohio, for Defendant-Appellant Jesse M. Carter.

DARRELL B. FIELDS, Legal Aid Society, Federal Defender Division, New York, New York, for Defendant-Appellant Carlos Charles.

MICHAEL YOUNG, New York, New York, for Defendant-Appellant Raymond A. Collins.

JAMES E. LONG, Albany, New York, for Defendant-Appellant Michael Barrett.

Richard L. Mott, Albany, New York, for Defendant-Appellant Craig Sweat.

DENNIS CLAUS, Syracuse, New York, for Defendant-Appellant William Willoghby.

Before: WINTER, Chief Judge, CARDAMONE, and PARKER, Circuit Judges.

WINTER, Chief Judge:

From 1989 to 1995, Archie Joyner operated a drug trafficking ring in Binghamton, New York. Forty-one individuals, including appellants Teddy T. Atkinson, Jesse M. Carter, Carlos Charles, Raymond A. Collins, William Willoghby, Michael Barrett, and Craig Sweat, were indicted for offenses arising out of the ring. Atkinson, Carter, Charles, Collins, Barrett, and Sweat pleaded not guilty. After an eight week jury trial before Chief Judge McAvoy, in which Joyner was the government's key witness, the jury convicted: (i) Atkinson of engaging in a continuing criminal enterprise ("CCE"), see 21 U.S.C. § 848, of drug trafficking conspiracy, see 21 U.S.C. § 846, and of possession of cocaine with intent to distribute and cocaine distribution, 21 U.S.C. § 841(a)(1); (ii) Carter of engaging in a CCE, of drug trafficking conspiracy (subsequently vacated by the district court), of attempted cocaine distribution, cocaine distribution, and possession of cocaine with intent to distribute and of using and carrying a firearm during a drug

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trafficking offense, see 18 U.S.C. § 924(c); (iii) Charles of engaging in a CCE, of drug trafficking conspiracy, of cocaine distribution and possession with intent to distribute and of using and carrying a firearm during and in relation to a drug trafficking offense; and (iv) Collins of arson conspiracy, see 18 U.S.C. § 371, and arson, see 18 U.S.C. § 844(i). The jury was unable to agree on a verdict with respect to Barrett and Sweat. On retrial, however, both were convicted of a CCE and of drug trafficking conspiracy. Willoghby pleaded guilty to drug trafficking conspiracy. Judge McAvoy sentenced: (i) Atkinson to 292 months' imprisonment, (ii) Carter to 360 months' imprisonment, (iii) Charles to 392 months' imprisonment, (iv) Collins to life imprisonment, (v) Barrett to 262 months' imprisonment, (vi) Sweat to 262 months' imprisonment, and (vii) Willoghby to 36 months' imprisonment. The court also ordered Collins to pay $1,846,637.45 in restitution. These appeals followed.

The evidence amply supports the various CCE convictions. However, because a drug conspiracy is a lesser included offense of a CCE, see Rutledge v. United States, 517 U.S. 292, 300 (1996), we vacate the drug conspiracy convictions of Atkinson, Charles, Barrett, and Sweat. We also vacate Carter's firearm convictions on Counts 44, 47, and 48, and Charles's firearm convictions on Counts 46, 47, and 48 for insufficient evidence. Finally, because the sentencing court failed to consider the factors specified in 18 U.S.C. § 3664(a), we vacate that portion of the sentence requiring Collins to pay $1,846,637.45 in restitution and remand for further consideration. Otherwise, we affirm.

BACKGROUND

We briefly describe the evidence leading to appellants' convictions, in all its dreary repetition, in the light most favorable to the government. See Glasser v. United States, 315 U.S. 60, 80 (1942).

Joyner began his drug trafficking operation in 1989. He bought cocaine in New York City, transported it to Binghamton, distributed it to "sellers" at one of a number of Binghamton bars, and received a portion of the sellers' profits. In 1990, Joyner's longtime friend Carter followed him to Binghamton. Within less than three weeks, Carter was arrested at a bar called "Dell's" for possession with intent to distribute cocaine. Atkinson, another longtime Joyner friend, subsequently moved to Binghamton and formed a partnership with Joyner to sell cocaine at a bar called "Sail Inn." That partnership dissolved after Joyner discovered that Atkinson had stolen money from him. Joyner then recruited others to work for him as he expanded his operation.

In 1992, Joyner decided that managing a bar called "Amp's" would help him avoid police surveillance while selling cocaine. His organization also began to buy guns, which were kept in stash houses. In the spring of 1993, Carter returned to Binghamton to become one of the managers of Amp's. That summer, Joyner purchased a Binghamton bar called "Begie's." In the fall of 1993, Carter became a manager of that bar as well. At about the same time, Atkinson -- who was dealing drugs on his own after the dissolution of his partnership with Joyner -- was arrested for distributing cocaine. He was released after Joyner posted bail on his behalf. Following his release, Atkinson worked as a seller at Begie's in order to repay Joyner until the state court sentenced him to a prison term. At the end of 1993, Begie's lost its liquor license, was raided by police, and temporarily closed.

At about the same time, however, Joyner purchased another bar called "Sheion's." After Begie's was closed, Joyner moved Carter to Sheion's, but he needed a second manager at Sheion's to handle all the customers. Because Atkinson was still in prison, Joyner recruited longtime-friend Charles for that position. Joyner

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paid Charles for his services as manager by allowing him to sell cocaine, marijuana, and heroin at Sheion's. Willoghby, a cocaine addict, was a janitor at Sheion's and sold cocaine there for Joyner from time to time. On February 10, 1994, Carter was arrested in New Jersey for possessing almost 3,000 vials of cocaine in a car he and Joyner had borrowed. After Carter's release on bail several weeks later, he resumed managing Sheion's for Joyner.

At about the same time, Joyner reopened Begie's under the new name "Choice's" and allowed the leaders of a rival ring, Barrett and his lieutenant Sweat, to sell cocaine there in exchange for a percentage of their profits. At about the same time, Joyner began to purchase both cocaine and heroin from a new supplier, Reginald Perry. In May 1994, Joyner, Perry, and several others -- including Collins, whom Perry had worked with in New York and whom he had recruited for this job -- conspired to torch a Binghamton bar called "Dell's," the principal competitor of Sheion's. An elderly man, Willard Allen, died in the fire.

On June 17, 1994, the Binghamton and New York state police raided Sheion's and arrested Charles, Joyner, and several others. Charles and Joyner were subsequently sent to prison, where they have since remained. Joyner continued his drug operation from prison. Barrett visited Joyner frequently, and they agreed that the former organization would sell cocaine at Choice's at night (still splitting the profits with Joyner) and that Joyner's girlfriend, Tracey Smith, would sell on his behalf during the day.

At one point, Smith and Barrett clashed. Joyner sent his personal bodyguard, Craig Gillespie, to Choice's to bring peace. Within a few weeks, Barrett and his crew left. Subsequently, in the fall of 1994, Atkinson, who had recently been released from state prison, returned to Choice's and resumed drug-selling. Several...

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