470 F.3d 220 (6th Cir. 2006), 05-3295, United States v. Caver

Docket NºCalvin CAVER (05-3295); Tamir Abdullah (05-3297); Fred Cloud (05-3344), Defendants-Appellants.
Citation470 F.3d 220
Party NameUNITED STATES of America, Plaintiff-Appellee, v.
Case DateDecember 04, 2006
CourtUnited States Courts of Appeals, Court of Appeals for the Sixth Circuit

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470 F.3d 220 (6th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellee,


Calvin CAVER (05-3295); Tamir Abdullah (05-3297); Fred Cloud (05-3344), Defendants-Appellants.

Nos. 05-3295/3297/3344.

United States Court of Appeals, Sixth Circuit.

Dec. 4, 2006

Argued: Sept. 19, 2006.

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Kevin M. Schad, Schad & Schad, Lebanon, Ohio, F. Clinton Broden, Broden & Mickelson, Dallas, Texas, Ryan D. Walters, Squire, Sanders & Dempsey, Cincinnati, Ohio, for Appellants.

Edward F. Feran, Assistant United States Attorney, Cleveland, Ohio, for Appellee.


Kevin M. Schad, Schad & Schad, Lebanon, Ohio, F. Clinton Broden, Broden & Mickelson, Dallas, Texas, Pierre H. Bergeron, Squire, Sanders & Dempsey, Cincinnati, Ohio, for Appellants.

Bruce A. Khula, Assistant United States Attorney, Cleveland, Ohio, for Appellee.

Before: CLAY and GILMAN, Circuit Judges; OBERDORFER, District Judge. [*]


CLAY, Circuit Judge.

"Operation Snow Removal," an investigation into drug crimes in the city of Cleveland, Ohio, led to the indictment of 15 alleged conspirators on December 17, 2003. Many of the alleged conspirators pleaded guilty; Defendants Caver, Abdullah, and Cloud (collectively "Defendants") did not. They proceeded to trial, and were found guilty of conspiracy to possess crack cocaine and possession of crack cocaine with the intent to distribute. 1 On September 27, 2004, Defendants Caver and Abdullah were sentenced to life without release; Defendant Cloud was sentenced to 30 years imprisonment. Defendants filed a timely notice of appeal.

On appeal, Defendants, either collectively or individually, argue that their convictions should be overturned because (1) the evidence was insufficient to support a conspiracy; (2) there was a prejudicial variance between the indictment and the proof at trial; (3) the district court improperly denied Defendant Caver's motion for a severance; (4) the district court made erroneous evidentiary rulings; (5) the district court improperly refused to grant a mistrial in response to improper outbursts by government witnesses; (6) the district court gave erroneous jury instructions; (7) Defendants' sentences are unconstitutional

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or unreasonable under Booker; 2 and (8) Defendant Cloud was denied effective assistance of counsel. For the reasons stated below, we AFFIRM Defendants' convictions and sentences.



This case involves drug and drug-related offenses that occurred in the city of Cleveland, Ohio, in the area of West 80th Street, West 83rd Street, and Detroit Avenue, during the years 2002 and 2003. In 2002, the Cleveland Police Department conducted an investigation known as "Operation Snow Removal" and found that this area of Cleveland had the highest crime rate in the police district. The Cleveland Police Department and the United States Drug Enforcement Agency cooperatively developed a plan targeting the main suspects involved in the drug trade in this area.

On March 18, 2003, a Cleveland Police Department detective, Schroeder, while conducting surveillance, observed a black Dodge Intrepid circling the block. He followed this car to a gas station, where he observed a man on a bicycle ride up to the passenger side window of the car and reach into the vehicle. The Intrepid drove off, and Schroeder followed it. It parked on a nearby street, and a minute later, a Ford Probe pulled up. The driver of the Probe got out of his car and got into the back seat of the Intrepid. Shortly thereafter, the driver of the Probe exited the Intrepid, returned to the Probe, and drove away. Schroeder stopped the Probe, and radioed for another officer to stop the Intrepid. Officer Bunjnak, acting on Schroeder's instruction, stopped the Intrepid, and observed Defendant Caver holding a bag of crack cocaine in his lap. Bunjnak arrested Defendant Caver, searched him, and found two pagers, lottery tickets, plastic baggies, and $242 of cash. He also found two cell phones on the passenger side of the Intrepid. The crack cocaine recovered from Defendant Caver weighed 12.04 grams.

On April 2, 2003, officers involved in Operation Snow Removal arrested Rahsaan Felix, a named but unindicted coconspirator in this case. Felix led police officers to Michael Morris, a drug dealer who supplied many other drug dealers in the target area. Morris agreed to cooperate with police, and on May 13, 2003, 3 the police planned to have Morris purchase drugs from Defendant Cloud and Arroyal Hall, another coconspirator. Morris was to purchase an ounce of crack cocaine from Hall and Defendant Cloud for $1,700. Morris met Hall and Defendant Abdullah (not Defendant Cloud, as originally planned) and the three of them drove to an apartment on Detroit Avenue, where the drugs were held. While parking the car, Hall recognized the undercover police car that was following Morris, and refused to go through with the transaction. Morris dropped Hall off at home. Defendant Abdullah, however, agreed to go through with the transaction. Morris paid only a portion of the money, $800, and received 20.8 grams of crack cocaine. Morris then dropped Defendant Abdullah off at Hall's home, and turned the crack cocaine over to police officers.

On June 17, 2003, police officers set up a controlled drug purchase of $50 worth of crack cocaine from Defendant Caver, using a reliable confidential informant. The informant told police that Defendant Caver

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would be arriving in a white car. When the white car arrived, Defendant Caver was driving, and the police arrested him. They recovered a bag of crack cocaine weighing 2.92 grams, $205, a cell phone, and a business card with the telephone number of the recovered cell phone listed on it.

On October 3, 2003, police were watching for drug activity from an apartment "perch." They observed a van drive onto the street, and a number of males who had been loitering on the street ran to the passenger side of the van. Suspecting a drug deal, the police stopped the van. The driver, who was Defendant Cloud, fled the van, but was apprehended. The front seat passenger was Defendant Abdullah. Police arrested Defendant Cloud and another passenger, and searched the van. The search did not reveal any drugs, but the police did recover photographs which depicted Defendant Cloud, Defendant Abdullah, and other suspects in various poses with money and cars. In one of the pictures, Defendant Cloud had a gun in his waistband.

On December 17, 2003, Defendants were indicted, along with 12 other coconspirators, for conspiracy to possess with the intent to distribute more than 50 grams of a mixture or substance containing a detectable amount of cocaine base, over a period beginning in 2002 and continuing throughout 2003, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) and § 846. Additionally, Defendant Caver was indicted for possession with the intent to distribute12.04 grams of crack cocaine stemming from his arrest on March 18, 2003. Defendant Caver was also indicted in a separate count for possession with the intent to distribute crack cocaine in the amount of 2.93 grams stemming from his arrest on June 17, 2003. Defendant Abdullah was indicted for possession with the intent to distribute 20.8 grams of crack cocaine stemming from the May 13, 2003 sale to Morris. 4

Only Defendants went to trial. Trial began on September 14, 2004. The prosecution's case included the testimony of police officers who recounted the events previously described, and the testimony of fifteen alleged coconspirators. The testimony elicited by the alleged coconspirators placed Defendants and the other alleged coconspirators within an intricate economic web of crack cocaine transactions. Because this testimony is necessary to the determination of the legal issues in this case, we briefly summarize the coconspirators' testimony at trial:

A. Michael Morris. Morris testified that he sold one-eighth of a kilogram of crack cocaine to Defendant Cloud "every day." J.A. at 965. Morris also stated that he sold one-ounce quantities of crack cocaine to Defendant Abdullah "once or twice," but that Morris was not Defendant Abdullah's regular supplier. J.A. at 948. Morris also testified that he did not sell Defendant Caver any drugs in 2002 or 2003. Additionally, Morris testified that he sold crack cocaine to Arroyal Hall, Yohnell Walker, Rondell Wylie, and Demetrius Bell over the relevant time frame.

B. Arroyal Hall. Hall testified that he sold large amounts of crack cocaine, ounces or portions of an ounce, to Defendant

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Abdullah "every day, or every other day." J.A. at 1084. He testified that he was also friends with Defendant Abdullah. Hall testified that Defendant Cloud was his best friend, that he and Defendant Cloud sold drugs together in 2002 and 2003, and that they would pool their money together to purchase crack cocaine from Morris. According to Hall, the two would use each other's suppliers to purchase crack cocaine, and he and Defendant Cloud would purchase a quarter or an eighth of a kilogram "every day almost." J.A. at 1125. Hall also testified that he sold drugs to Defendant Caver in one-ounce quantities numerous times during 2002 and 2003.

Additionally, Hall testified that during the time of the alleged conspiracy, Hall sold crack cocaine to Yohnell Walker, Derek Stokes, Rondell Wylie, Demetrius Bell, David Anderson, Ralph Jones, Allen Wilson, Jermaine Jones, and Randall Ramsey. Hall testified that he purchased crack cocaine from Michael Morris.

C. Andre Collier. Collier testified that he was a street level dealer. Collier testified that, over the relevant period, he purchased crack cocaine...

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