48 F.3d 73 (2nd Cir. 1995), 314, United States v. Washington

Docket Nº:314, 319 and 341, Dockets 94-1007, 94-1065 and 94-1141.
Citation:48 F.3d 73
Party Name:UNITED STATES of America, Appellee, v. Jacob WASHINGTON, Robert Hickman, and Jerome Washington, Defendants-Appellants, Frank Salas, Marlon Douglas, Stephen Collins, and Percy Culcleasure, Defendants.
Case Date:February 07, 1995
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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48 F.3d 73 (2nd Cir. 1995)

UNITED STATES of America, Appellee,

v.

Jacob WASHINGTON, Robert Hickman, and Jerome Washington,

Defendants-Appellants,

Frank Salas, Marlon Douglas, Stephen Collins, and Percy

Culcleasure, Defendants.

Nos. 314, 319 and 341, Dockets 94-1007, 94-1065 and 94-1141.

United States Court of Appeals, Second Circuit

February 7, 1995

Argued Nov. 3, 1994.

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Gregory L. Waples, Asst. U.S. Atty., Burlington, VT (Charles R. Tetzlaff, U.S. Atty., for the D. VT, David V. Kirby, Chief, Crim. Div., John P. Tavana, Asst. U.S. Attys., of counsel), for appellee.

Richard C. Bothfeld, Essex Junction, VT, for Robert Hickman.

Bonnie Barnes, Middlebury, VT (Sessions, Keiner, Dumont and Barnes, P.C., of counsel), for Jerome Washington.

Mark A. Kaplan, Burlington, VT (Jarvis & Kaplan), for Jacob Washington.

Before: LUMBARD, CARDAMONE, and MINER, Circuit Judges.

LUMBARD, Circuit Judge:

Jacob Washington, Robert Hickman, and Jerome Washington appeal from judgments of conviction entered between December 1993 and March 1994 in the District of Vermont (Parker, J.), of charges arising from a conspiracy to distribute cocaine. A jury found all three defendants guilty of conspiring to distribute cocaine, in violation of 21 U.S.C. Sec. 846, and found Jacob and Hickman also guilty of using a communication facility in furtherance of this conspiracy, in violation of 21 U.S.C. Sec. 843. In addition, Jacob was convicted of seven counts of distributing cocaine, in violation of 21 U.S.C. Sec. 841; one count of possessing cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 841; five counts of possessing firearms as a convicted felon, in violation of 18 U.S.C. Sec. 922; and two counts of using firearms in relation to drug transactions, in violation of 18 U.S.C. Sec. 924. Finally, the jury found Jerome guilty of two counts of distributing cocaine, in violation of 21 U.S.C. Sec. 841; and one count of possessing a firearm with an obliterated serial number, in violation of 18 U.S.C. Sec. 922. The court dismissed the latter charge against Jerome, due to insufficient evidence that the firearm in question was obtained in interstate transport.

The court sentenced Jacob to a twenty-five year prison term for the use of a firearm counts, a consecutive 235 month term for the conspiracy, distribution, and possession counts, and concurrent terms of 96 months for the communication facility count and 120 months for the firearm possession counts. The court sentenced Hickman to a 264 month prison term for the conspiracy count, and to a concurrent 96 month term for the communication facility count. The court sentenced Jerome to a 121 month prison term for the conspiracy and distribution counts.

On appeal, the defendants claim numerous pre-trial, trial, and sentencing errors. We affirm the judgments of conviction.

I.

The defendants were tried on an indictment charging them and six co-defendants--Frank Salas, Dexter Wilson, Marlon Douglas, Stephen Collins, Percy Culcleasure, and Chance Marden--with offenses arising from a conspiracy to distribute cocaine in Burlington, Vermont between May 1991 and May 1992. The six co-defendants all entered guilty pleas.

The evidence at trial showed that in February 1991, Hickman conspired with Salas, Wilson, and Douglas to transport cocaine from New York City for sale in Burlington. That summer, Salas abandoned the enterprise; Hickman replaced him with Jacob, who sold cocaine from Wilson and Douglas's apartment at 106 Hill Gardens in Burlington over a five month period.

Chance Marden began purchasing cocaine from Jacob in the summer of 1991. In the fall, Marden, Jacob, and Judd Colby moved into an apartment at 120 Hill Gardens, and

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distributed cocaine from this address. Jacob received regular shipments of cocaine from Hickman, and paid him through Western Union money transfers. In November 1991, Jerome moved in with Jacob, Marden, and Colby. Although Jerome did not initially sell cocaine, in December he began taking a share of Jacob and Marden's cocaine, selling to Marden's customers if Marden was out. At the same time, Wilson, Douglas, Collins, and Culcleasure sold cocaine from nearby apartments. In March 1992, Jacob and Jerome moved to 55 Monroe Street, where they continued selling cocaine.

Allen Robertson, a police informant, made controlled purchases of cocaine both at 120 Hill Gardens and 55 Monroe Street. Burlington Detective John Lewis, who strip-searched Robertson before and after each purchase, provided Robertson with a recording device and "buy money." Robertson made purchases from Jacob on February 11, February 17, March 13, April 29, May 1, and May 19, 1992, and from Jerome on February 24 and May 21, 1992. 1 Robertson also made purchases on February 21 and March 5, 1992, when both Jacob and Jerome were present. On each occasion, Robertson gave the cocaine to Detective Lewis.

During this time, Jacob, who had a prior state felony conviction, acquired two 12-gauge shotguns, an Intratech 9mm pistol ("Tech 9"), and .380 and .45 caliber pistols. Several witnesses saw loaded firearms in Jacob's bedroom, where he conducted drug sales. Witnesses also reported that Jacob said he was prepared to "shoot" should a police raid occur. When detectives searched Jacob's apartment during a May 22, 1992 raid, they found a shotgun protruding from beneath the couch on which Jacob was lying, five packets of cocaine on a nearby table, a loaded Tech 9 stashed between the mattress and the box spring in Jacob's bedroom, and one quarter-ounce of cocaine in the bedroom closet. Photographs obtained from the apartment during the search showed Jacob holding various firearms and large sums of cash.

II.

Jacob claims that the government violated the Speedy Trial Act by failing to file an indictment within 30 days of his arrest on May 22, 1992. We disagree. After arresting Salas and Hickman on June 9, the government requested a 45-day extension under 18 U.S.C. Sec. 3161(h)(8)(B)(iii), citing the complexity of its investigation. As this extension was "reasonably related to the needs of the case," United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1197 (2d Cir.), cert. denied, 493 U.S. 933, 110 S.Ct. 324, 107 L.Ed.2d 314 (1989), grant of the request was proper. Jacob's complaint, that the extension enabled the government to conduct a more thorough grand jury investigation than it could have conducted otherwise, does not satisfy the required showing of prejudice, see United States v. Tedesco, 726 F.2d 1216, 1221-22 (7th Cir.1984).

Jacob and Jerome argue that the warrant authorizing the search of their apartment was invalid, and that the evidence seized in that search should have been suppressed. The warrant authorized seizure of the following items:

  1. Any and all forms of cocaine and/or unlawfully possessed regulated drugs.

  2. Any and all drug paraphernalia to include: scales, packaging materials, cutting agents, user paraphernalia (pipes, syringes) etc.

  3. Any and all papers, records, receipts, documentation, telephone lists and records which may be related to illicit drug activities.

  4. Any and all money acquired through illicit drug activities.

  5. Any and all firearms and ammunition used to facilitate and/or protect the illicit drug dealing and records [of] firearms purchases.

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Defendants argue that the description of items to be seized was too broad, citing Buck v. United States, 813 F.2d 588 (2d Cir.), cert. denied, 484 U.S. 857, 108 S.Ct. 167, 98 L.Ed.2d 121 (1987). We disagree.

Unlike the search request we criticized in Buck, Detective Lewis's affidavit fully stated the facts supporting his warrant request: the continuous sale of small quantities of cocaine from the apartment, and the presence of multiple firearms in the apartment. Unlike the warrant in Buck, the warrant issued to Lewis recited the specific categories of drug-related evidence sought. Given the nature of Jacob and Jerome's enterprise, the warrant described with sufficient particularity the criminal instrumentalities to be found at their premises. See United States v. Young, 745 F.2d 733, 758-60 (2d Cir.1984), cert. denied, 470 U.S. 1084, 105 S.Ct. 1842, 85 L.Ed.2d 142 (1985); United States v. Dunloy, 584 F.2d 6, 10-11 (2d Cir.1978).

Jacob, Jerome, and Hickman complain of the court's denial of their motions for change of venue and the court's conduct of voir dire. On May 24, 1992, Jerome shot and wounded Marden, whom Jerome believed responsible for the May 22 raid; he also shot and killed Marden's girlfriend, Melissa Wells. Jerome was convicted in the state court of Wells's murder before this case came to trial. Defendants contend that common knowledge of these events within the venue prevented their fair trial.

Pretrial publicity included local newspaper and television coverage of (1) the drug arrests, (2) Jerome's murder conviction, and (3) the effects of Melissa Wells's death on the community. Defendants further argued that as three black men from New York City, they could not obtain an impartial jury from a largely white population in a rural area. The district court determined that defendants failed to show "that any negative publicity has so permeated the community with prejudice" as to create a reasonable likelihood of compromising their right to a fair and impartial jury. United States v. Washington, 813 F.Supp. 269, 273 (D.Vt.1993). During voir dire, the court excused any jurors who either (1) knew of Jerome's guilty verdict in the trial for Wells's murder, or (2) had formed an opinion about the case that prevented their impartial deliberation. The court did not...

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