430 F.3d 317 (6th Cir. 2005), 03-3833, United States v. Martinez

Docket Nº:03-3833, 03-3835, 03-3879, 03-3917.
Citation:430 F.3d 317
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Gilberto MARTINEZ, Jerel Henderson, Kevin S. Harris, Brian Garrett, Defendants-Appellants.
Case Date:November 17, 2005
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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430 F.3d 317 (6th Cir. 2005)

UNITED STATES of America, Plaintiff-Appellee,


Gilberto MARTINEZ, Jerel Henderson, Kevin S. Harris, Brian Garrett, Defendants-Appellants.

Nos. 03-3833, 03-3835, 03-3879, 03-3917.

United States Court of Appeals, Sixth Circuit.

November 17, 2005

Argued: Sept. 15, 2005.

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Argued: September 15, 2005

Appeal from the United States District Court for the Northern District of Ohio at Toledo. No. 02-00747—David A. Katz, District Judge.


Spiros P. Cocoves, Toledo, Ohio, Bertrand R. Puligandia, Toledo, Ohio, Jonathan K. Stock, JONES DAY, Columbus, Ohio, John M. Nicholson, McNABB ASSOCIATES, Houston, Texas, for Appellants.

William C. Brown, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.


Spiros P. Cocoves, Toledo, Ohio, Bertrand R. Puligandia, Toledo, Ohio, Jonathan K. Stock, Shawn J. Organ, JONES DAY, Columbus, Ohio, John M. Nicholson, Douglas C. McNabb, McNABB ASSOCIATES, Houston, Texas, for Appellants.

William C. Brown, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

Before: GUY, BATCHELDER, and GILMAN, Circuit Judges.

GUY, J., delivered the opinion of the court, in which BATCHELDER, J., joined.

GILMAN, J. (pp. 21-22), delivered a separate concurring opinion.


RALPH B. GUY, JR., Circuit Judge.

Defendants Gilberto Martinez, Jerel Henderson, Kevin Harris, and Brian Garrett each appeal their conviction on a single count of conspiracy to distribute and to possess with intent to distribute cocaine, cocaine base, and marijuana. 21 U.S.C. §§ 846 and 841(a)(1). All four defendants contend that admission of an anonymous letter as a coconspirator statement under Fed.R.Evid. 801(d)(2)(E) was improper and violated the Confrontation Clause. Two defendants, Harris and Henderson, challenge the sufficiency of the evidence to support their convictions. Other claims of trial error are raised by one or more of the defendants concerning evidence of prior

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convictions, the denial of a mistrial, testimony concerning two drug sales made within 1000 feet of a school, the instructions given to the jury, and inconsistencies between the indictment and the judgments. In addition, Henderson asks this court to consider the claim that he received ineffective assistance of counsel at trial. Finally, all four defendants raise multiple claims of error in sentencing; not least of which is to argue that resentencing is required under United States v. Booker, 125 S.Ct. 738 (2005). After review of the record and the arguments presented on appeal, we AFFIRM the defendants' convictions but VACATE the sentences of all four defendants and REMAND for resentencing in accordance with this opinion.


A lengthy investigation of drug trafficking activities in the Sandusky, Ohio, area by state and federal authorities led to an indictment of 14 individuals in July 2001, all of whom pleaded guilty. A number of those defendants, including Daryl Castile, Ervin Turner, Shawn Gray, Bert Fenderson, and Thomas Hamilton, testified for the government at the trial in the present case. Further investigation led to the indictment in this case charging ten additional defendants with the same drug conspiracy charged in the first case.

The second indictment alleged in a single count that from 1990 through May 1, 2002, Gilberto Martinez, Eddie B. Thomas, Alastair Hatter, Herbert Hatter, Kevin Harris, Demetrius Brown, Ernest Chaney, Brian Garrett, Jerel Henderson, and Deshay Jones knowingly conspired to distribute and possess with intent to distribute cocaine, cocaine base, and marijuana. It was further alleged that the purpose and object of the conspiracy was to distribute over 250 kilograms of cocaine, over 10 kilograms of cocaine base, and over 1000 pounds of marijuana in Sandusky and Fremont, Ohio. Multiple overt acts, mostly drug transactions, were alleged to have been taken in furtherance of the conspiracy.

Four of the defendants entered guilty pleas and testified for the government at trial; they were Eddie Thomas, Deshay Jones, Al Hatter, and Herb Hatter. The remaining six were tried jointly and, after several weeks of testimony, the jury acquitted Chaney and failed to reach a verdict as to Brown.1 The last four defendants, Martinez, Henderson, Harris, and Garrett, were each convicted on the conspiracy count. The jury returned special verdicts finding them each responsible for the following drug quantities: (1) Martinez, five or more kilograms of cocaine, and 100 kilograms but less than 1000 kilograms of marijuana; (2) Garrett, five or more kilograms of cocaine, and 50 grams or more of cocaine base; (3) Harris, 500 grams but less than five kilograms of cocaine, and five grams but less than 50 grams of cocaine base; and (4) Henderson, less than 500 grams of cocaine, five grams but less than 50 grams of cocaine base, and 50 kilograms but less than 100 kilograms of marijuana. The jury also found Garrett had made two drug sales from a residence located within 1000 feet of a school.

The defendants were sentenced to the following terms of imprisonment: Martinez, 292 months; Harris, 130 months; Garrett, 349 months; and Henderson, 360 months. In calculating the guideline ranges, the district court found the defendants were responsible for higher quantities of drugs than were found by the jury and increased their base offense levels accordingly.

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Collectively, defendants challenge sentencing enhancements based on drug quantity (USSG § 2D1.1), role in the offense (USSG § 3B1.1), being a career offender (USSG § 4B1.1), and the distribution of drugs within 1000 feet of a school (USSG § 2D1.2).2Defendants raise other sentencing errors in addition to arguing that resentencing is required under Booker. These consolidated appeals followed.


A. Anonymous Letter

We begin first with the anonymous letter because all four of the defendants argue that its admission requires reversal.3 The letter was found in one of the coordinated searches conducted on May 8, 2002, one week after the indictment was returned in this case. The letter, Exhibit 58, was found in the apartment of Garrett's girlfriend, Brenda Stachki. The apartment was frequented by Garrett, who kept clothes and other belongings there. The letter was handwritten, unaddressed, unsigned, and undated. The letter mentions "papers" that were previously sent, which appears to refer to documents that had been disclosed to defense counsel in the first case. Those documents, which were found in a car used by Garrett, in an apartment used by Chaney, and in Brown's bedroom, included a witness list, photographs of cooperating individuals and confidential informants, and reports of interviews with cooperating witnesses. None of the defendants argue that it was error to admit these documents, but all of them claim it was error to have admitted the anonymous letter.

Defense counsel objected, and the district court deferred ruling until defense counsel had an opportunity to review and address what the district court referred to as "a very significant piece of evidence." Arguments were heard and the matter was taken under advisement. Ultimately, the district court concluded that the letter was admissible under Fed.R.Evid. 801(d)(2)(E) and that its admission would therefore not violate the Confrontation Clause. Because the district court inferred from the context and content of the letter that it was written by a coconspirator in the course and furtherance of the conspiracy, we quote the letter in full:

Well, I was hoping y'all niggas would've wised up, and thought about the reason why those papers were sent to y'all. It wasn't for our health. Y'all let them niggas walk around like they didn't do shit. Y'all out there with them. If we locked up, who's next on the list to be told on? Right! So take heed, cause you know Tommy used you as a[] scapegoat, Kenny used Mike. It don't take much to get these people going. Bert and Kyle started this shit, but it ain't finished. Not all of them paperworks was correct, but the ones you got were. The nigga Chat[man], supposedly put venom on y'all to. He still down here. Tell Ace hoe ass to quit running off at his mouth, cause his gay ass brother got a 2 V2 hour video tape, talking about how E.B. [Thomas] put y'all on, over on Adams, Meigs, Jefferson, and Perry [streets]. And he mentioned his on

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brother Ace [Matt Johnson]. So quit taking up for his hoe ass. They supposedly got Othel Loofties, Willie Philon, Kevin Duvall, Ladale Kidd, Erv Turner, Eric Reed (Detroit-Boy), Darnell Kirkwood, Tommy Hamilton, Lemon Jones, Mike Johnson, Lil Mike Kincaide, Fred Lanier, and Tony Cook all in Milan, separated from us, so they can get interviewed, they call it debriefing. Telling everything they know about drug activity in the city. This will be it. This pretty much let's you know that they trying to clean up them streets. Right now they handing out 10 pieces and up, if your not willing to lie on somebody else. Be cautious of your surroundings, and start cutting your so-called boys or niggas lose. 9 out of 10 will be on the enemy side when it's over. Don't wait til the last minute, like we did. Get prepared.

Based on his knowledge of the investigation, Officer Dana Newell identified the individuals referenced by their first names or by their "street names." He explained that the letter named many individuals who had been charged in the first case, whose interviews were disclosed to defense counsel in the first case, and who ultimately testified for the government in this...

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