213 F.3d 302 (6th Cir. 2000), 98-1353/98-1391/98-1533/98-1534/98-1535/98-1537, United States v Buchanan IV

Docket Nº:98-1353/98-1391/98-1533/98-1534/98-1535/98-1537 /98-1538/98-1590/98-1594/98-1780
Citation:213 F.3d 302
Party Name:United States of America, Plaintiff-Appellee, v. Allie Richard Buchanan IV (98-1353), Troy Swindle (98-1780), Albert Derring (98-1391), Derrick C. Flowers (98-1594), Charles Washpun (98-1590), Rodney D. Atkinson (98-1538), Otis Murray III (98-1537), Eurtis Jones (98-1535), George Kellum (98-1534), and Darryl Ford (98-1533), Defendants-Appellants.
Case Date:February 17, 2000
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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213 F.3d 302 (6th Cir. 2000)

United States of America, Plaintiff-Appellee,

v.

Allie Richard Buchanan IV (98-1353), Troy Swindle (98-1780), Albert Derring (98-1391), Derrick C. Flowers (98-1594), Charles Washpun (98-1590), Rodney D. Atkinson (98-1538), Otis Murray III (98-1537), Eurtis Jones (98-1535), George Kellum (98-1534), and Darryl Ford (98-1533), Defendants-Appellants.

Nos. 98-1353/98-1391/98-1533/98-1534/98-1535/98-1537 /98-1538/98-1590/98-1594/98-1780

United States Court of Appeals, Sixth Circuit

February 17, 2000

Rehearing and Suggestion for Rehearing En Banc Denied in 98-1533 May 16, 2000.

As Corrected on Denial of Rehearing May 22, 2000.

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Barbara Colby Tanase (briefed), Office of the U.S. Attorney for the Western District of Mischigan, Grand Rapids, MI, Glenn Martin, Office of the U.S. Attorney, Lansing, MI, for Plaintiff-Appellee in No. 98-1353.

Barbara Colby Tanase (briefed), Office of the U.S. Attorney for the Western District of Mischigan, Grand Rapids, MI, Glenn Martin, Office of the U.S. Attorney, Lansing, MI, for Plaintiff-Appellee in No. 98-1391.

Barbara Colby Tanase (briefed), Office of the U.S. Attorney for the Western District of Mischigan, Grand Rapids, MI, Glenn Martin, Office of the U.S. Attorney, Lansing, MI, for Plaintiff-Appellee in Nos. 98-1533, 98-1534, 98-1535, 98-1537, 98-1538, 98-159098-1594, and 98-1780

David W. Garrett, DAVID W. GARRETT & ASSOCIATES, Comstock Park, Michigan, Gaylor L. Cardinal, SLUITER, AGENTS, CARDINAL, VAN GESSEL, WINTHER & CARLSON, Wyoming, Michigan, William Mitchell III, SHERBOW & MITCHELL, Troy, Michigan, Kenneth A. Rathert, RATHERT LAW OFFICES, Kalamazoo, Michigan, John R. Minock, CRAMER, MINOCK & GALLAGHER, Ann Arbor, Michigan, Stuart G. Friedman, Ann Arbor, Michigan, Maureen M. Milliron, SHERBOW & MITCHELL, Troy, Michigan, for Appellants.

Barbara Colby Tanase, UNITED STATES ATTORNEY, Grand Rapids, Michigan, for Appellee.

Craig T. Wormley, MILLER & ASSOCIATES, Santa Monica, California, for defendant-Appellant in No. 98-1353.

Albert Derring, Bradford, Pennsylvania,

David W. Garrett, (argued and briefed) DAVID W. GARRETT & ASSOCIATES, Comstock Park, Michigan, for Defendant-Appellant in No. 98-1533

Darryl Ford, Springfield, Missouri,

Gaylor L. Cardinal, SLUITER, AGENTS, CARDINAL, VAN GESSEL, WINTHER & CARLSON, Wyoming, Michigan,

William Mitchell III, SHERBOW & MITCHELL, Troy, Michigan, Kenneth A. Rathert, RATHERT LAW OFFICES, Kalamazoo, Michigan,

John R. Minock, CRAMER, MINOCK & GALLAGHER, Ann Arbor, Michigan, Stuart G. Friedman, Ann Arbor, Michigan,

Charles Washpun, Greenville, Illinois,

Maureen M. Milliron, SHERBOW & MITCHELL, Troy, Michigan,

Troy Swindle, Pekin, Illinois, pro se.

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C. Mark Pickrell, Nashville, Tennessee, for Appellants. Barbara Colby Tanase, UNITED STATES ATTORNEY, Grand Rapids, Michigan, for Appellee.

Before: JONES, MOORE, and GILMAN, Circuit Judges.

GILMAN, J., announced the judgment of the court and, with one exception, delivered the opinion of the court. MOORE, J., concurred in the opinion except as to Part II.C.3 (the drug dog issue). NATHANIEL R. JONES, J., delivered a separate opinion in which he concurred in the above opinion except as to Parts II.C.3 and II.C.5 (the photo issue). MOORE, J., joined in this opinion only as to Part I, making it the opinion of the court as to the drug dog issue.

OPINION

GILMAN, Circuit Judge.

The defendants in this action were convicted of conspiracy to possess and distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. They raise multiple issues in their appeals, including challenges to the jury selection process, to evidence admitted at trial, and to their sentences. For the reasons set forth below, we AFFIRM the convictions and sentences of all of the defendants except Allie Richard Buchanan, IV. As to Buchanan, we AFFIRM his conviction, but VACATE his sentence and REMAND the same for reconsideration in light of the district court's erroneous belief that it did not have discretion to depart from the applicable sentencing guideline.

I. BACKGROUND

A. Factual background

This case involves a large-scale drug organization involving numerous individuals, including Rodney D. Atkinson, Buchanan, Albert Derring, Derrick C. Flowers, Darryl Ford, Eurtis Jones, George Kellum, Otis Murray, III, Troy Swindle, and Charles Washpun, all of whom are African-American. The organization, which began operating in and around Kalamazoo, Michigan in 1990, was formed by Keylen Tremell Blackmon, Buchanan, and Scott Hughes.

In broad outline, Blackmon, Buchanan, and Hughes obtained large quantities of cocaine, primarily from sources in Chicago, and would then distribute the drugs--in some instances after converting it into cocaine base ("crack")--to various individuals in and around Kalamazoo. Atkinson, Derring, Flowers, Ford, Jones, Kellum, Murray, Swindle, and Washpun were all purchasers and/or sellers of the drugs obtained by Blackmon, Buchanan, and Hughes. The details of the charged conspiracy will, to the extent necessary, be discussed in connection with the defendants' specific assignments of error.

B. Procedural background

On June 5, 1997, a grand jury indicted twenty-four individuals--including Buchanan, Derring, Ford, Jones, Kellum, Murray, Swindle, and Washpun--with conspiracy to possess and distribute cocaine and cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 846. Four of the individuals were also charged with specific instances of possessing or distributing the illegal drugs.

A superseding indictment was filed on July 10, 1997, in which another individual not involved in these appeals was added to the conspiracy charge. The superseding indictment also contained money laundering charges and forfeiture allegations against some of the defendants. On October 1, 1997, Buchanan pled guilty to the conspiracy charge.

A second and final superseding indictment was issued on October 7, 1997. The new conspiracy charge omitted those defendants who were originally indicted but who had since pled guilty, such as Buchanan, and added four new individuals, including Atkinson and Flowers. In addition to those modifications, the alleged ending date of the conspiracy was changed from

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July of 1996 to June of 1997. Derring pled guilty on October 29, 1997.

By the beginning of 1998, all but fifteen of those indicted in the case had entered guilty pleas. Due to the relatively large number of remaining defendants, the district court assigned each individual to one of two trials. Atkinson, Flowers, Ford, Jones, Kellum, Murray, Swindle, and Washpun constituted the second group. On January 27, 1998, one day after their trial began, Swindle moved for a mistrial on the basis that Blackmon, without warning, revealed to the jury that Swindle had made a proffer to the government that he was, in fact, guilty of the offenses alleged in the indictments. The district court, after concluding that a limiting instruction would be insufficient, granted the motion and ordered that Swindle be tried at a later date.

On February 3, 1998, a jury convicted each of the remaining seven defendants. A separate jury convicted Swindle in late March of 1998. Unless otherwise stated, references in this opinion to a "trial" are to the trial which resulted in the conviction of Atkinson, Flowers, Ford, Jones, Kellum, Murray, and Washpun, and which originally included Swindle.

On February 19, 1998, the district court sentenced Buchanan to 156 months of imprisonment. Derring received a 145-month term of incarceration on March 12, 1998. The district court imposed a 235-month sentence on Ford on April 4, 1998. On May 1, 1998, Atkinson, Flowers, Jones, Kellum, Murray, and Washpun were sentenced to respective terms of 240, 360, 240, 360, 300, and 300 months' imprisonment. Finally, the district court sentenced Swindle to a 324-month term on June 23, 1998.

The defendants then appealed, setting forth a variety of arguments relating to the jury selection process, the government's arrangements with certain witnesses, evidence admitted at trial, and their sentences. In several instances, the defendants' individual briefs incorporate by reference the contentions raised by their co-defendants.

II. ANALYSIS

A. Issues regarding the racial makeup of the jury and the jury selection process

1. Standard of review

A district court's ruling on whether a peremptory challenge violates the mandates of Batson v. Kentucky, 476 U.S. 79, 90 L.Ed. 2d 69, 106 S.Ct. 1712 (1986), is entitled to great deference, and this court will not disturb that ruling unless it is clearly erroneous. See Hernandez v. New York, 500 U.S. 352, 364-65, 114 L.Ed. 2d 395, 111 S.Ct. 1859 (1991). "Whether a defendant has been denied his right to a jury selected from a fair cross-section of the community is a mixed question of law and fact, which we review de novo." United States v. Allen, 160 F.3d 1096, 1101 (6th Cir. 1998). As to objections raised for the first time on appeal, we will not set aside the rulings of the district court unless they constitute plain error. See Fed. R. Crim. P. 52(b); United States v. Segines, 17 F.3d 847, 851 (6th Cir. 1994).

2. The defendants' Batson objection

During jury selection, the government used a peremptory challenge to strike the only African-American person selected for the jury. Citing Batson, the defendants argued that because all of the defendants were African-American, the challenge was racially motivated. In response, the...

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