U.S. v. Williamson

• Decision Date: 14 April 1995
• Docket Number: 94-3026 and 94-3053,93-3399,Nos. 93-3389,s. 93-3389
• Citation: 53 F.3d 1500
• Parties: 41 Fed. R. Evid. Serv. 1298 UNITED STATES of America, Plaintiff-Appellee, v. Clarissa WILLIAMSON, aka Clarissa Lewis, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Carl MARSHALL, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Karen PARKER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Edward DRYDEN, Jr. aka Honky, aka Hunky, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1500

53 F.3d 1500

41 Fed. R. Evid. Serv. 1298

UNITED STATES of America, Plaintiff-Appellee, v. Clarissa WILLIAMSON, aka Clarissa Lewis, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Carl MARSHALL, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Karen PARKER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Edward DRYDEN, Jr. aka Honky, aka Hunky, Defendant-Appellant.

Nos. 93-3389, 93-3399, 94-3026 and 94-3053.

United States Court of Appeals Tenth Circuit.

April 14, 1995.

Tanya J. Treadway (Randall K. Rathbun, U.S. Atty., with her, on the brief), Asst. U.S. Atty., Kansas City, KS, for plaintiff-appellee.

Jill M. Wichlens (Michael G. Katz, Federal Public Defender, with her, on the briefs), Asst. Federal Public Defender, Denver, CO, for defendant-appellant in No. 93-3389.

Carl E. Cornwell (Keith C. Sevedge, Kansas City, KS, with him, on the brief), of Cornwell & Edmonds, Overland Park, KS, for defendant-appellant in No. 93-3399.

Kimberley Kellogg, Overland Park, KS, for defendant-appellant in No. 94-3026.

Bruce C. Houdek of James, Millert, Houdek, Tyrl & Maloney, Kansas City, MO, for defendant-appellant in No. 94-3053.

Before SEYMOUR, Chief Circuit Judge, and BALDOCK and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

Defendants-appellants Carl Marshall, Clarissa Williamson, Edward Dryden, Jr., and Karen Parker (collectively "defendants"), were convicted of various drug related offenses. On appeal, they assert infirmities with their respective convictions and sentences. Our jurisdiction arises under 28 U.S.C. Sec. 1291 and 18 U.S.C. Sec. 3742(a). We affirm.

BACKGROUND

On May 6, 1993, a federal grand jury in Kansas City, Kansas, returned an eight count indictment charging seven individuals ¹ with A joint trial involving the defendants and Mr. Haynes ² commenced on September 8, 1993, and on October 4, 1993, after a five week trial, the jury convicted the defendants on the conspiracy and substantive distribution counts. The jury, however, was unable to reach a unanimous verdict as to Mr. Haynes and the court declared a mistrial as to the charges against him.

conspiracy to distribute cocaine base, commonly referred to as "crack" cocaine, in violation of 21 U.S.C. Sec. 846, as well as seven substantive counts of distributing cocaine base in violation of 21 U.S.C. Sec. 841(a)(1). Count one, the conspiracy count, alleged a single continuing conspiracy among these seven individuals from "on or before January 1, 1986 ... to on or about October 31, 1991."

The government's theory of the case, supported by evidence offered at trial, can be summarized as follows. In 1986, Mr. Marshall married Ms. Phyllis Harper, whom he had known since 1985. At the time they met, Ms. Harper had been dealing marijuana and PCP for over a decade. Mr. Marshall joined in his wife's drug dealing operation and he expanded their distribution base to cover the ever-increasing crack cocaine market. Although their crack cocaine distribution began as a relatively small operation, the evidence revealed that in 1987, Mr. Marshall made approximately $10,000 to $15,000 per month in profits.

While Ms. Harper and Mr. Marshall were experiencing professional success in their drug ventures, their personal relationship and their marriage were simultaneously failing. As a result, they decided to establish independent drug distribution networks. They recognized, however, that if they pooled their money, they would be able to purchase larger quantities of drugs from the same supplier, presumably at better prices. They decided it would be in both of their interests to do this, and they subsequently pooled their money when purchasing large volumes of cocaine from their primary suppliers in California.

From 1987 until late September 1988, Mr. Marshall's drug business was becoming increasingly profitable. To meet his buyers' demands, he and his "employees" made numerous trips to California--in custom-designed vans with secret compartments--to make multiple kilogram purchases of powder cocaine. Upon returning to Kansas City, Mr. Marshall and his employees would "cook" the powder cocaine into crack that would then be sold to various buyers.

In late September 1988, while Ms. Harper and Mr. Marshall were in California to make a buy, Mr. Dryden, a twenty-five year veteran of the Kansas City, Kansas, police force who was Mr. Marshall's brother-in-law and who was involved in Mr. Marshall's drug operation, advised Mr. Marshall that the authorities were going to arrest Ms. Harper upon her return to California. Based on this information, changes to the itinerary and travel route were arranged, and Charles Marshall, Mr. Marshall's brother, was given the responsibility for driving the cocaine back from California. Shortly thereafter, Ms. Harper was doused with gasoline and set on fire, resulting in her death. An investigation into her death commenced, and the scope of the investigation encompassed Mr. Marshall and potentially, his drug activities. In reliance on Mr. Dryden's advice, Mr. Marshall decided to cease temporarily his drug operation until the investigation into Ms. Harper's death died down.

As a result, Mr. Marshall's drug operations ceased business from the fall of 1988 until the spring of 1989, a period of seven months. During this time frame, Mr. Marshall enjoyed the fruits of his trade, spending much of his profits on women, poker, a taxi cab company and pleasure trips. After the seven-month hiatus, Mr. Marshall resumed his distribution operation with many of the same people working for him as had worked for him earlier.

When Mr. Marshall resumed his operations in the spring of 1989, he was no longer Mr. Marshall, the head of this drug operation, enlisted the services of each of the six other individuals charged in the indictment. The government's theory on the conspiracy count was that each of these individuals was an active participant in his crack distribution ring.

dealing on the same scale as he had been before Ms. Harper's death. His purchases from his California suppliers were reduced to one or two kilograms per trip. In October 1991, Mr. Marshall's operation was essentially out of business, as there was little money left to continue to sustain the businesses' operations and Mr. Marshall's own personal crack use and extravagant life-style.

For example, Mr. Marshall headed the operation, purchased the cocaine from suppliers in California and directed the other participants. Mr. Dryden was enlisted for assistance with financial matters and, at least in the government's view, for his help in avoiding detection by law enforcement personnel through his connections with the Kansas City police department. Therisa Ross, one of Mr. Marshall's girlfriends, characterized Mr. Dryden as a "watchdog" for Mr. Marshall's business. In that capacity, Mr. Dryden would run names and car licenses before trips to California, as well as warn the organization about possible busts on their return trips from California and warn everyone about investigations, including the investigation into Ms. Harper's death, and possible sales to undercover officers. He also stored some of the monetary proceeds from the sales at his residence. In return for his assistance, Mr. Marshall would provide him with free crack "crumbs" that were created when Ms. McGee would cook the powder cocaine into crack. Mr. Dryden used these crumbs to support his own drug habit.

Ms. Williamson was hired by Mr. Marshall in 1987 to cook the powder cocaine into crack, to store the cocaine at her residence, which was used as a base of operation, to assist in transporting the cocaine back from California and to sell and deliver most of the operations' crack to its buyers. In exchange for her services, Mr. Marshall paid Ms. Williamson on a commission basis.

Tina McGee, Mr. Marshall's ex-wife and the mother of their son, was hired to perform many of the same functions Ms. Williamson did, including cooking the powder cocaine and storing it at her residence, which was also used as a base of operation. Unlike Ms. Williamson, however, Ms. McGee received a flat salary of $400 per week for her services, rather than a commission. Mr. Marshall also enlisted the services of two of his girlfriends, Ms. Ross and Ms. Parker, both of whom served as cookers and runners. After Ms. Ross and Mr. Marshall had a falling out, Ms. Parker assumed Ms. Ross' duties in exchange for free use of a residence.

Most of the seven substantive distribution counts alleged in the indictment were based on sales by Ms. Williamson and Mr. Marshall to undercover officers. These sales eventually led to the arrest of each of the seven named individuals, and ultimately resulted in the convictions forming the basis for the present appeals.

DISCUSSION

I. Challenges to the Defendants' Convictions

A. Constitutional Issues

1.

Ms. Parker, Mr. Dryden and Mr. Marshall assert the prosecution improperly exercised one of its peremptory challenges to excuse a potential juror, an African-American woman, from the venire. They claim this challenge was made "because of" the venireperson's race, which is an impermissible race-based use of a peremptory challenge, in violation of principles of equal protection under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and its progeny. See United States v. Johnson, 941 F.2d 1102, 1105 & n. 3 (10th Cir.1991). The ultimate issue of intentional discrimination under Batson is a question of fact and thus, we review the district court's finding under the clearly erroneous standard. See United States v. Johnson, 4 F.3d 904, 913 (10th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1082, 127 L.Ed.2d 398 (1994).

The defendants' Batson claim in this case arose from the following circumstances. During jury selection, a female African-American juror, Ms. Roland, was selected from the venire as a potential juror. After voir...