U.S. v. Jones

• Citation: 30 F.3d 276
• Decision Date: 11 July 1994
• Docket Number: Nos. 319,679 and 680,D,s. 319
• Parties: UNITED STATES of America, Appellee, v. William JONES, Dwayne Frederick and Alson Schmidt, Defendants-Appellants. ockets 93-1334, 93-1350 and 93-1513.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 276

30 F.3d 276

UNITED STATES of America, Appellee, v. William JONES, Dwayne Frederick and Alson Schmidt,

Defendants-Appellants.

Nos. 319, 679 and 680, Dockets 93-1334, 93-1350 and 93-1513.

United States Court of Appeals, Second Circuit.

Argued Dec. 8, 1993.

Decided July 11, 1994.

Abraham L. Clott, New York City (Legal Aid Soc., Federal Defender Services Unit, of counsel), for defendant-appellant William Jones.

Paul J. McAllister, New York City, for defendant-appellant Dwayne Frederick.

Robert Koppelman, New York City, for defendant-appellant Alson Schmidt.

James E. Johnson, Asst. U.S. Atty., S.D.N.Y., New York City (Mary Jo White, U.S. Atty., Andrew C. McCarthy, Alexandra Rebay, Asst. U.S. Attys., of counsel), for appellee U.S.

Before NEWMAN, Chief Judge, OAKES and CARDAMONE, Circuit Judges.

CARDAMONE, Circuit Judge:

William Jones, Dwayne Frederick and Alson Schmidt appeal from judgments of conviction entered April 27, April 29 and June 23, 1993 respectively in the United States District Court for the Southern District of New York following jury trials held before Judge Louis L. Stanton. These three defendants were found guilty of operating a cocaine distribution ring in the South Bronx, New York. The legal issues they raise concern the sufficiency of the evidence, jury instructions, whether the Hobbs Act was violated, and the calculation of their sentences. The facts call attention, in addition, to the bravery of one police officer, something that should not be forgotten. This officer was one of a small band of those officers who at enormous personal risk go undercover to obtain the sort of evidence necessary to support a drug conviction in court. Here, an undercover New York City police officer having finally gained access to the drug ring headquarters was held at gunpoint, ordered to lie down, and then shot twice in the back. Although leaving him with serious permanent injuries, miraculously these wounds did not cost the officer his life. Because the facts on this appeal are somewhat complex we set them forth in some detail.

BACKGROUND

The Drug Ring

Defendant William Jones was the leader of a cocaine ring that he ran out of apartments located in tenements at 1975 Bathgate Avenue and 2115 Washington Avenue in the South Bronx. The initial contact that brought Jones' criminal activity to the attention of the police occurred during a May 15, 1989 undercover "buy and bust" narcotics operation by New York City police investigators. On that occasion an undercover police officer approached two of Jones' workers at a stairway near the fourth floor landing at 1975 Bathgate Avenue and said he wanted to buy some cocaine. While the undercover agent waited, defendant Jones, standing in the doorway of apartment 5D, handed one of the two men a tin foil packet later found to contain $40 worth of cocaine. After the sale, police officers entered the apartment, arrested Jones, seized over an ounce of cocaine, a triple beam scale, and $15,000 in cash. In his post-arrest statement, Jones admitted he was being supplied with up to one-half kilogram of cocaine per week. When released he continued conducting his narcotics operation.

While investigating Jones, Jerry Ortiz, the seriously wounded New York City police officer, encountered, among others, defendants Alson Schmidt, Dwayne Frederick and Dwayne's brother, Curtis Frederick. Posing as a dealer of drugs from Westchester County, New York, officer Ortiz commenced a series of ever larger cocaine buys during the summer of 1989 with the object of gaining evidence concerning the cocaine ring and its participants. The first purchase occurred on June 30, 1989 when Dwayne Frederick and another man sold him 15 vials of crack cocaine from the Bathgate Avenue address.

Next, on July 5 Allen Matthews, one of Jones' workers who later became a police informant, introduced agent Ortiz to Dwayne's brother, Curtis Frederick. Curtis and the undercover officer left 1975 Bathgate Avenue and walked to 2115 Washington Avenue to purchase cocaine. Curtis went into apartment 2F, which belonged to Jones, and there obtained one ounce of cocaine that he sold to officer Ortiz for $700. Ortiz did not meet directly with Jones because Jones did not yet trust him.

On July 14 the agent returned to Bathgate Avenue where he told Dwayne Frederick that he wanted to purchase more cocaine from either Jones or Dwayne's brother Curtis. The undercover agent was unable to make a purchase because as Curtis explained the person who supplied them had been Thus, on July 25 when agent Ortiz returned to 1975 Bathgate Avenue and met Jones in front of the building, they proceeded directly to 2115 Washington Avenue where Jones allowed officer Ortiz to enter apartment 2F and there sold him an ounce of cocaine for $700. Jones also agreed to sell him 125 grams (one-eighth kilogram) of cocaine on August 3 for $2,500.

"busted." But, four days later, on July 18 Curtis Frederick introduced officer Ortiz to Jones in front of 1975 Bathgate Avenue. Jones then agreed to sell him one ounce of cocaine at 2115 Washington Avenue. After telling the undercover officer their cocaine business operated "24 hours, seven days a week," Curtis went to get the cocaine from Jones. Officer Ortiz asked Curtis if he could speak with Jones, but was told "no" because Jones was "busy and he ha[d] three other people up there and they're making bottles and he doesn't trust nobody," but that the next time he bought cocaine he would be permitted to "go straight upstairs."

On August 3 undercover surveillance officers observed Jones enter 1975 Bathgate Avenue accompanied by a Hispanic male who had arrived in a white Audi. This person had been observed entering the same address on July 14 and apparently was one of Jones' cocaine suppliers. When agent Ortiz arrived Jones escorted him to apartment 2D where he made the $2,500 buy. Jones then said that on August 10 he would sell him a half-kilo of cocaine for between $8,000 and $9,000.

The Robbery

Between August 3 and August 10 Jones, Curtis Frederick and Schmidt began to formulate a plan to rob agent Ortiz when he returned to make the half-kilo purchase. Dwayne Frederick and another person stored a duffle bag containing a .38 caliber silver-plated handgun in an apartment next to apartment 2D at Bathgate Avenue. On the morning of August 10 Schmidt brought the silver-plated gun into apartment 2D. Later, when undercover officer Ortiz arrived, Curtis arranged for Schmidt and Dwayne to join him. After Curtis escorted the officer up to apartment 2D, Schmidt entered the apartment and ordered the officer to "lay down" and told him that if he moved, he was dead. Agent Ortiz pleaded with Schmidt, but to no avail. After pulling the trigger of the .38 twice before finally reaching a loaded chamber, Schmidt fired three shots, striking the undercover agent twice in the back causing massive internal injuries. Because officer Ortiz was carrying a transmitter, surveillance police officers heard the shots and forced their way into the apartment where they arrested defendants Schmidt and Curtis Frederick, and summoned medical help for the wounded officer. Defendants Dwayne Frederick and Jones were arrested later. Schmidt's fingerprints were identified on the silver-plated .38 found at the scene of the crime, and it was established that this was the gun used to shoot officer Ortiz.

PRIOR PROCEEDINGS

As a result of their involvement in these crimes, William Jones, Dwayne Frederick, Alson Schmidt and Curtis Frederick were indicted and charged with conspiring to violate the narcotics laws of the United States, 21 U.S.C. Secs. 812, 841 and 846 (1988). Dwayne Frederick and Schmidt were also charged with conspiracy to commit robbery in violation of 18 U.S.C. Sec. 1951 (1988) (Hobbs Act), and with robbery and attempted robbery affecting interstate commerce in violation of 18 U.S.C. Secs. 1951 and 2, and possession and use of a firearm during a crime of violence in violation of 18 U.S.C. Secs. 924(c) and 2 (1988).

All of the defendants had previously been prosecuted by the State of New York in Bronx County for different offenses arising out of the conduct charged in the federal indictment. Jones had previously been convicted of criminal possession of cocaine (on May 15, 1989), and acquitted in a separate case for distributing cocaine on three occasions (July 18, July 25, and August 3, 1989) to officer Ortiz. Schmidt had been acquitted of attempting to murder officer Ortiz. Dwayne Frederick had been convicted for a June 30, 1989 sale of crack to officer Ortiz. Curtis Frederick had entered guilty pleas on charges of attempting to murder officer Ortiz and selling cocaine to him on several occasions.

The four defendants also had been previously tried in the United States District Court for the Southern District of New York (Knapp, J.) on an earlier indictment arising out of the same conduct. The trial before Judge Knapp ended in a mistrial when after nine days of deliberations the jury deadlocked. The case was subsequently reassigned to Judge Stanton before whom the judgments of convictions presently before us on appeal were obtained.

Defendant Jones, whose trial was severed from defendants Dwayne Frederick and Schmidt, was convicted of conspiracy to violate the narcotics laws of the United States in violation of 21 U.S.C. Sec. 846 and sentenced to 28 years imprisonment, five years supervised release and a special assessment of $50. Dwayne Frederick was convicted of conspiring to violate the narcotics laws in violation of 18 U.S.C. Secs. 841 and 846 and sentenced to 121 months imprisonment, five years supervised release and a special assessment of $50. Alson Schmidt was convicted of the same conspiracy violations and was also convicted of being a member of a conspiracy to commit robbery in violation of 18 U.S.C. Sec. 1951, and for the crimes of robbery and attempted robbery affecting interstate commerce in violation of 18...