U.S. v. Thompson

• Decision Date: 27 December 2006
• Docket Number: No. 05-15052.,05-15052.
• Citation: 473 F.3d 1137
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Corry THOMPSON, a.k.a. Larry Scott, a.k.a. Corey Thompson, et al., Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1137

473 F.3d 1137

UNITED STATES of America, Plaintiff-Appellee, v. Corry THOMPSON, a.k.a. Larry Scott, a.k.a. Corey Thompson, et al., Defendant-Appellant.

No. 05-15052.

United States Court of Appeals, Eleventh Circuit.

December 27, 2006.

W. Matthew Dodge, Stephanie Kearns, Fed. Pub. Def., Fed. Def. Program, Inc., Atlanta, GA, for Thompson.

Todd C. Alley, Amy Levin Weil, U.S. Atty., Atlanta, GA, for U.S Appeal from the United States District Court for the Northern District of Georgia.

Before CARNES and MARCUS, Circuit Judges, and JORDAN,^* District Judge.

CARNES, Circuit Judge:

In this appeal from his drug-related convictions and sentences Corry Thompson raises a number of issues, two of which merit discussion. The one with the most general application involves the requirement of 21 U.S.C. § 851(a)(1) that the government give formal written notice that it intends to seek enhanced penalties under 21 U.S.C. § 841 and identify the prior convictions it will rely on for that purpose. The § 851(a)(1) compliance issue arises from the fact that the required notice was given before Thompson's first trial, which ended in a mistrial, but no additional notice was given before the retrial. It's a little more complicated than that, because between the two trials the government obtained a superseding indictment adding more counts, and Thompson was convicted in the second trial of all the counts, not just those that were in the indictment at the time he received the notice before the first trial. We will get to this adequacy of notice issue after we set out the historical and procedural facts and address a sufficiency of the evidence issue that also deserves discussion.

I.

In late September 2002 an informant for the Atlanta police department purchased crack cocaine at an apartment on Oglethorpe Avenue in Atlanta. Based on that purchase the police obtained a search warrant, which they executed on October 1, 2002. When the officers entered the apartment they found four men and one child in the living room. The men were packaging drugs for sale, using small plastic bags and a digital scale.

One of the men, Deidric Parks, got up and ran into the apartment's left-rear bedroom. The officers followed him there where they found more bags of cocaine. As they escorted Parks out of that bedroom they looked across the hall into the right-rear bedroom, where they spotted more powder and crack cocaine. Those drugs were inside a plastic bag sitting on top of a plate, which was itself sitting on top of a bed. A thorough search of the apartment yielded more cocaine, marijuana, and ecstasy tablets. The officers also found two loaded handguns in the living room, one under a chair cushion and one on the floor.

Thompson was not in the apartment when the officers executed the warrant on October 1, 2002, but they found several documents belonging to him in the right-rear bedroom. Those documents had been placed on the bed, right next to the cocaine. Three of the documents were traffic citations that had been issued to Thompson on August 27, 2002 while he was driving Deidric Parks' car. One of the citations was for making an improper left turn, one was for driving with a suspended license, and one was for driving without a license. Thompson apparently told the officer who issued the citations that he resided at Welcome All Terrace in Atlanta, Georgia, because that is the address on the citations.

Other documents on the bed were an undated vehicle repair order for Thompson's car and Red Cross disaster relief application papers dated September 30, 2002 (the day before the search). The relief application papers listed Thompson's residence as Beckwith Street in Atlanta. Another document found on the bed next to the cocaine was an undated printout of telephone numbers that Thompson had stored in his cell phone. The list showed phone numbers for people listed by nickname, like "Bald Head" and "Big Boy." Testimony established that drug dealers sometimes use phone number lists like the one found on the bed to contact their customers.

In mid-October 2002, about two weeks after that search of the apartment on Oglethorpe Avenue, and based on what was found there, Thompson was arrested and charged with selling drugs out of the apartment. He was not promptly indicted, however; in fact, he was not indicted for those crimes until March 2005.

In the meantime, Thompson was arrested again in late October 2003. This arrest followed an investigation into drug sales at a house located on Palmetto Street in Atlanta. The investigation began after the same police informant who had purchased drugs at the Oglethorpe Avenue apartment purchased cocaine for officers at the Palmetto Street house. After he did so, the officers obtained a search warrant for the house, but they decided to conduct surveillance before executing the warrant. While doing so, an officer saw Thompson enter the home carrying a dog food bag. Twenty minutes later, the same officer saw Thompson leave the house with two other men but without the bag.

Minutes after they left the house, the officers detained Thompson and the other two men. They used Thompson's keys to unlock the house, where they found the dog food bag. Instead of dog chow, the bag contained cocaine. Next to the bag the officers also found several small plastic bags filled with ecstacy pills. In other parts of the house they found two loaded handguns stuffed among the couch cushions, two shoe boxes containing marijuana, three sets of digital scales, and two surveillance monitors. The monitors were wired to outside cameras that covered the house's perimeter. The house was set up for drug sales, not for law-abiding everyday living. After the police finished searching the home, they arrested Thompson.

This time the government moved quickly to indict Thompson. On November 18, 2003, a federal grand jury handed down a six-count indictment against Thompson based on the October 2003 search. The counts included the following charges: being a convicted felon in possession of firearms, in violation of 18 U.S.C. §§ 922(g), 924(e) (count one); possessing cocaine, cocaine base, marijuana, and Methylenedioxymethamphetamine (ecstasy), with the intent to distribute, in violation of 21 U.S.C. §§ 841, 851 (counts two through five); and possession of firearms in furtherance of drug-trafficking crimes, in violation of 18 U.S.C. § 924(c) (count six).

On August 26, 2004, the government filed and served a sentencing information, as required by 21 U.S.C. § 851(a)(1), informing Thompson that it would seek to enhance his sentence under § 841(b)(1)(A)(iii). The information listed Thompson's three prior convictions for possession of cocaine with intent to distribute, as well as his prior conviction for possession of a firearm by a convicted felon, as the basis for the enhancement, and it noted that he and his attorney had previously been provided with copies of the indictments and sentences in those earlier cases. In addition to warning generally that the prior convictions would lead to enhancement "of any sentence imposed on the defendant," the government's information specifically let Thompson know that if he were convicted on count three in the indictment (possession of cocaine with the intent to distribute), the enhanced sentence he would face on that count would be a mandatory one of "life imprisonment without release, pursuant to 21 U.S.C. § 841(b)(1)(A)."

Thompson's first trial was held in September of 2004. It involved the six counts stemming from the search of the Palmetto Street house, which were the only charges in the indictment at that time. The trial ended with a hung jury. Before Thompson was retried, the government on March 1, 2005 obtained a superseding indictment, which added five more counts to cover the charges arising from the search of the Oglethorpe Avenue apartment. Those five new counts charged Thompson with: being a convicted felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g), 924(e) (count seven); possessing cocaine, cocaine base, and ecstasy with the intent to distribute, in violation of 21 U.S.C. §§ 841, 851 (counts eight through ten); and possessing a firearm in furtherance of drug-trafficking crimes, in violation of 18 U.S.C. § 924(c) (count eleven).

The charges contained in the five counts added by the superseding indictment did not increase the maximum sentence that Thompson faced in the sense that he was already facing a mandatory life sentence if he was convicted of count three and the enhancement was applied under 21 U.S.C. § 841. The new charges, however, did expose him to two sets of sentences instead of one, including an additional mandatory life sentence. At the second trial, which was held from April 18-25, 2005, Thompson was convicted on all eleven counts contained in the superseding indictment.

Having filed a § 851(a)(1) information before Thompson's first trial, the government did not file another one before his second trial began. It did, however, file another one the day after the jury returned its verdict convicting Thompson of all eleven counts in the superseding indictment. The new information added the words "Superseding" to the caption ("Sentencing Information Establishing Prior Convictions for the Purpose of Increased Punishment") and had a different date. Other than that it was identical in all respects to the information filed before the first trial, except that the specific warning of a mandatory term of life imprisonment was pegged to counts three and nine of the superseding indictment, instead of count three alone.

At sentencing on September 1, 2005, Thompson objected to the district court's enhancement of his sentence under § 841, arguing that the government had failed to comply with § 851(a)(1) because it had not filed or refiled the necessary information before the second trial started. The district court overruled the objection and sentenced Thompson to the...