U.S. v. Whiting

• Decision Date: 06 January 1994
• Docket Number: 92-1183,92-1258,Nos. 92-1182,s. 92-1182
• Citation: 28 F.3d 1296
• Parties: 40 Fed. R. Evid. Serv. 1357 UNITED STATES of America, Appellee, v. Darryl WHITING, a/k/a G., God, Rah, Defendant, Appellant. UNITED STATES of America, Appellee, v. Sean DIXON, a/k/a Michael White, Defendant, Appellant. UNITED STATES of America, Appellee, v. Renaldo PLEDGER, a/k/a Eugene Noble, Defendant, Appellant. UNITED STATES of America, Appellee, v. Edwin CARMICHAEL, a/k/a Freedom, Defendant, Appellant. UNITED STATES of America, Appellee, v. William BOWIE, a/k/a Cuda, Diamond, Defendant, Appellant. UNITED STATES of America, Appellee, v. Steven WADLINGTON, a/k/a Mohammed, Defendant, Appellant. UNITED STATES of America, Appellee, v. Kenneth BARTLETT, a/k/a Cheyenne, Defendant, Appellant. to 92-1185, 92-1259, 92-1442 and 92-1443. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1296

28 F.3d 1296

40 Fed. R. Evid. Serv. 1357

UNITED STATES of America, Appellee, v. Darryl WHITING, a/k/a G., God, Rah, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Sean DIXON, a/k/a Michael White, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Renaldo PLEDGER, a/k/a Eugene Noble, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Edwin CARMICHAEL, a/k/a Freedom, Defendant, Appellant.

UNITED STATES of America, Appellee, v. William BOWIE, a/k/a Cuda, Diamond, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Steven WADLINGTON, a/k/a Mohammed, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Kenneth BARTLETT, a/k/a Cheyenne, Defendant, Appellant.

Nos. 92-1182, 92-1258, 92-1183 to 92-1185, 92-1259, 92-1442

and 92-1443.

United States Court of Appeals First Circuit.

Heard January 6, 1994.

Decided July 6, 1994.

Gary C. Crossen, by Appointment of the Court, and Stephen D. Sowle with whom Sarah Reed, John A. Shope and Foley, Hoag & Eliot, Boston, MA, were on briefs for appellant Darryl Whiting.

John H. LaChance, by Appointment of the Court, with whom LaChance and Whatley, Framingham, MA, was on briefs for appellant Sean Dixon.

John C. Doherty, Andover, MA, by Appointment of the Court, for appellant Renaldo Pledger.

Janet L. Sanders with whom Zalkind, Rodriguez, Lunt & Duncan, Boston, MA, was on briefs for appellant Steven Wadlington.

Lois Lewis, Newton, MA, by Appointment of the Court, for appellant Edwin Carmichael.

John P. Slattery, by Appointment of the Court, with whom Wysocki and Slattery, Boston, MA, was on brief for appellant Kenneth Bartlett.

Paul A. Dinsmore, Rumford, RI, by Appointment of the Court, for appellant William Bowie.

Robert W. Iuliano, Asst. U.S. Atty., Paul V. Kelly, Asst. U.S. Atty., (for IAD issue), and Thomas C. Frongillo with whom Donald K. Stern, U.S. Atty., Boston, MA, was on briefs for the United States.

Before BREYER, ^* Chief Judge, BOUDIN and STAHL, Circuit Judges.

BOUDIN, Circuit Judge.

These cases arise out of an extensive undercover law enforcement operation targeted at the "New York Boys," a large-scale drug distribution ring operating out of the Orchard Park Housing Project in Roxbury, Massachusetts. The seven defendants currently before the court appeal their convictions, their sentences, or both. We affirm the district court's rulings on all but one point. ¹

I.

On December 11, 1990, a federal grand jury indicted Darryl Whiting, Sean Dixon, Renaldo Pledger, Edwin Carmichael, and Steven Wadlington--as well as 26 co-defendants Rather than try 50 defendants at once, the district court severed the case into smaller cases. The first five defendants named above ("the first-trial defendants") were placed in the initial trial group, along with a sixth defendant (David Waight) who has not appealed. Trial began on June 17, 1991, and continued for 18 days spread over the next four weeks. The evidence consisted primarily of the testimony of undercover agents and cooperating co-defendants. Taken in the light most favorable to the government, United States v. Gonzalez-Torres, 980 F.2d 788, 789 (1st Cir.1992), the evidence showed the following:

--for conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 846. A superseding indictment returned on April 11, 1991, expanded the case to include a total of 50 defendants, including Kenneth Bartlett and William Bowie. The individual defendants were also charged with various combinations of substantive cocaine distribution, 21 U.S.C. Sec. 841(a)(1), firearms offenses, 18 U.S.C. Sec. 922(g)(1); 26 U.S.C. Sec. 5861(d), or money laundering, 18 U.S.C. Sec. 1956(a)(1), and Whiting was alleged to be the organizer and supervisor of a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848.

The first-trial defendants, together with many other individuals, were members of or associated with the "New York Boys," a street gang headed by Whiting and operating out of the Orchard Park Housing Project in Roxbury, Massachusetts. The gang was so named because many of its members hailed from Queens, New York. During the period from 1986 to 1990, the New York Boys evolved into a large, highly structured organization that employed up to 100 different people and sold cocaine and cocaine base ("crack" cocaine) in shifts 24 hours a day.

The Whiting organization received its cocaine from New York City. A number of couriers transported the drugs to Boston on airline shuttles. The drugs were then processed--"cut" with dilutants and divided into individual bags--at several different apartments located outside the Orchard Park Project. Finally, the cocaine was sold at Orchard Park through an elaborate network of personnel: "runners" who met customers and took their money; other individuals who "worked the pack" by holding small quantities of cocaine and distributing it to incoming runners in exchange for cash; and a third group who held larger inventories of cocaine packs in more secure locations and periodically resupplied those "working the pack." Additional workers served as lookouts for police or provided security against rival gangs. During the organization's most prosperous period, the New York Boys sold as much as five kilograms of cocaine per week, grossing up to $100,000 in a single half-day shift.

The organization sent substantial sums out of Boston via Western Union, giving rise to money-laundering charges against Whiting and Carmichael. Many of the workers were paid up to $1,000 per week for their services, although not consistently. Whiting invested funds in various Roxbury businesses, including a barber shop, video store, and the Crown Social Hall. Although this hall functioned as a community center, it also served as a front for drug distribution activities and a means of laundering the proceeds of drug sales. Whiting also sponsored rap concerts, barbecues, and other social events, and provided gifts of clothing and money to youth in the Roxbury community.

The government's witnesses testified about numerous weapons possessed by defendants and acts of violence done to maintain discipline within the organization and security vis-a-vis rival gangs. Security measures were elaborate: gang members were equipped with binoculars, walkie-talkies, and headphones and had ready access to firearms ranging from riot pump shotguns to Uzi machine guns. There was extensive evidence of beatings and other acts of violence against members of the organization who stole money or cocaine, attempted to sell drugs on their own, or otherwise disobeyed orders.

The first-trial defendants mounted a defense consisting primarily of attacks on the credibility of the government's witnesses. Defense counsel attacked the testimony of one of the government's two primary undercover operatives, Jeffrey Coy, by emphasizing instances in which Coy had failed to follow proper police procedures and by showing On July 24, 1991, the jury convicted Whiting of one count of engaging in a continuing criminal enterprise, 21 counts of distribution of cocaine, and one count of money laundering; he was acquitted of two counts of distribution of cocaine. ² Dixon, a runner and security worker, was convicted of conspiracy to distribute cocaine and of one substantive distribution count, but was acquitted on an additional distribution count. Pledger, another security worker, was convicted on the conspiracy count and on one count of being a felon in possession of a firearm. Edwin Carmichael, who had a managerial role, was convicted of conspiracy to distribute cocaine and of one count of money laundering. Steven Wadlington, a security worker, was convicted on the conspiracy count and of one count each of distribution of cocaine and possession of an unregistered firearm; he was acquitted on two additional distribution counts.

                that Coy had suffered serious psychological and emotional problems during and after the investigation.  Defendants also sought to undermine the second undercover agent, Maurice Dawkins, by way of testimony from a former supervisor that Dawkins was not "a man of truth."   Defense counsel also won admissions that many of the cooperating co-defendants who testified had drug problems, and that some would be willing to lie to further their own interests.  Whiting himself testified that he was not involved in drug dealing and that his income came from legitimate business activities
                

Sentences were imposed on October 7, 21, and 22, 1991, and the five defendants filed timely notices of appeal. The specific sentences imposed were as follows:

Darryl Whiting Life without parole on the continuing criminal enterprise count; 240 months imprisonment for each of 21 distribution counts and one money laundering count, to be served concurrently; and a $1200 special assessment.

Sean Dixon 188 months imprisonment and 60 months supervised release on the conspiracy count; 60 months imprisonment for distribution count, to run concurrently; and a $100 special assessment.

Renaldo Pledger 235 months imprisonment and 60 months supervised release; and a $100 special assessment.

Edwin Carmichael 262 months imprisonment and 60 months supervised release; and a $100 special assessment.

Steven Wadlington 360 months imprisonment on the conspiracy count and 60 months supervised release; 240 months imprisonment on distribution count; 120 months imprisonment on the firearms count, all sentences to run concurrently; and a $150 special assessment.

Bartlett and Bowie were among six co-defendants slated for trial in the second group created by the district court. Both Bartlett and Bowie were alleged to have served as security workers. Bowie, the government claimed, acted as the chief of security for the organization and as Whiting's bodyguard. The second trial commenced on November 19, 1991. On the sixth day of trial, Bartlett and Bowie pled guilty to conspiracy to distribute cocaine.

Bowie was sentenced on February 10,...