U.S. v. Parker

• Decision Date: 03 February 2009
• Docket Number: Docket No. 07-1464-cr(con),,Docket No. 07-5672-cr(con).,Docket No. 07-1217-cr(con).,Docket No. 07-1457-cr(con).,Docket No. 07-1650-cr(con).,Docket No. 07-0620-cr(L).
• Citation: 554 F.3d 230
• Parties: UNITED STATES of America, Appellee, v. David PARKER, also known as Big D and Robert Jackson, Defendants, Kevin Bryan, also known as B(10), Kelvin Minott, George Fuller, also known as Shawn Fuller, Jonathan Baker, also known as JB and Eugene Brooks, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

554 F.3d 230

UNITED STATES of America, Appellee, v. David PARKER, also known as Big D and Robert Jackson, Defendants, Kevin Bryan, also known as B(10), Kelvin Minott, George Fuller, also known as Shawn Fuller, Jonathan Baker, also known as JB and Eugene Brooks, Defendants-Appellants.

Docket No. 07-0620-cr(L).

Docket No. 07-1217-cr(con).

Docket No. 07-1457-cr(con).

Docket No. 07-1464-cr(con),

Docket No. 07-1650-cr(con).

Docket No. 07-5672-cr(con).

United States Court of Appeals, Second Circuit.

Argued: December 8, 2008.

Decided: February 3, 2009.

Brenda K. Sannes, Assistant United States Attorney (Glenn T. Suddaby, United States Attorney, on the brief, Lisa M. Fletcher, Assistant United States Attorney, of counsel), United States Attorney's Office for the Northern District of New York, Syracuse, NY, for Appellees.

Catherine E. Stuckart, Binghamton, NY, for Defendant-Appellant Kelvin Minott.

Charles F. Willson, Nevins & Nevins LLP, East Hartford, CT, for Defendant-Appellant Jonathan Baker.

Vivian Shevitz, South Salem, NY, for Defendant-Appellant George Fuller.

Before: FEINBERG, LEVAL, and CABRANES, Circuit Judges.

LEVAL, Circuit Judge:

Defendants Kelvin Minott, George Fuller, and Jonathan Baker¹ appeal from their convictions after jury trial in the United States District Court for the Northern District of New York (Hurd, J.). They were convicted of conspiracy to possess crack cocaine with the intent to distribute in violation of 21 U.S.C. §§ 841 and 846. The appellants contend that the evidence was legally insufficient to support their convictions relying on the so-called "buyer-seller" exception. The appellants contend that as buyers of drugs from a selling conspiracy, they could not be convicted of conspiring with the sellers for the illegal transfer of the drugs. We reject the contention and affirm the convictions. The appellants' argument is based on an oversimplified misunderstanding of the buyer-seller exception. Even if the buyer-seller exception protects buyers from criminal liability for conspiracy with their sellers to make the transfer between them, it does not protect them from criminal liability for conspiracy with their sellers with regard to other transfers either by the seller or by the buyers, if the facts support such a charge. We remand Fuller's case for the district court to reconsider his sentence in light of Kimbrough v. United States, ___ U.S. ____, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007).

BACKGROUND

The evidence, seen in the light most favorable to the government, see Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), showed the following: A drug distribution organization located in the Utica, New York area sold crack cocaine to numerous customers, at the rate of approximately one kilogram per week. Members of this organization included Sandra Willis, the organization's principal recruiter, "Carmen," "Bujo," "Jamaican Mike," "Shortman," "Dizzy," and later, Mark Ramsey. The group sold crack cocaine to customers who would call drug-order phone lines. Beginning in 2003, Dizzy and Bujo, whom Willis brought into the organization and trained to sell crack cocaine, operated one of the drug-order phone lines out of a second floor apartment on Taylor Avenue, which customers referred to as either "T," "Taylor," or "T Block." The selling group sold crack cocaine in amounts ranging from a minimum of an "eightball," consisting of 3.5 grams, to multiple ounces. An eightball was typically divided into "tens" (0.1 gram packages for $10), "twenties" (0.2 gram packages for $20), or "fifties" (0.5 gram packages for $50) for resale.

Pursuant to court-authorized wiretaps, the appellants Fuller, Minott, and Baker were recorded numerous times calling the drug order phone line arranging to buy crack cocaine. Members of the selling organization testified that they sold frequently to Fuller, Minott, and Baker, whom they had never known to use crack cocaine themselves. However, members of the selling group, including Willis, Dizzy, Bujo, and Ramsey, knew that the appellants engaged in resale of the crack cocaine they purchased.

The appellant Minott purchased crack cocaine in large quantities from at least seven different members of the selling group. In 2005, he bought approximately an ounce of crack cocaine each week from Dizzy. He also ordered eightballs from both Dizzy and Bujo over the drug order phone line using coded terms such as "Guinness" and "Heineken" to refer to various types of drugs. Willis testified that Minott purchased crack from her, on and off, for three years, in quantities of between one and four eightballs. Willis knew that Minott resold the crack he bought.

In addition to purchasing crack cocaine from members of the Taylor Avenue selling group, Minott introduced associates to the group. In the summer of 2002, Minott introduced his roommate, Mark Ramsey, to the selling group. Initially, Ramsey and Minott jointly purchased about an eightball of crack per week from Dizzy, which they subdivided and sold. Carmen and Shortman eventually induced Ramsey to operate one of the drug-order phone lines, and Minott began to make drug deliveries for the selling group. Minott made at least two deliveries for Ramsey, and told him that he would be willing to make more deliveries. In another instance, Minott used an intermediary named Pops to distribute crack. In the summer of 2005, Minott introduced Pops to Dizzy, and later complained to Dizzy when Pops began purchasing crack directly from Dizzy behind Minott's back.

The appellant Fuller had a relationship with Dizzy, Willis, and others in the organization for several years, over which time he bought crack cocaine on numerous occasions. Fuller was frequently at the Taylor Avenue crack house, and was considered by Willis to be a "constant" customer, buying anywhere between one to four eightballs at a time. In July 2005, Fuller bought crack from Mark Ramsey. During this period, Fuller purchased at least an eightball of crack cocaine every day. Willis and Ramsey each provided crack on credit to Fuller on at least one occasion.

Willis knew that Fuller sold crack out of a house at 721 Lansing Street, and would occasionally deliver crack to Fuller there. Fuller also told Willis that he had customers outside Utica, in Watertown. Likewise, Ramsey knew that Fuller distributed the crack Ramsey sold him. Fuller complained to Ramsey that his customers were dissatisfied with the crack he had gotten from Ramsey, and that he had lost customers while waiting for Ramsey to make a delivery. One customer testified that he purchased crack in "twenties" from Fuller at the Taylor Avenue crack house (and ultimately at the Lansing Street house, as well) because the Taylor Avenue selling group would not sell crack in quantities smaller than an eightball.

The appellant Baker purchased eighteen eightballs of crack cocaine from Dizzy and Bujo through the drug-order phone line during an eighteen-day period in 2005. Often Baker would meet Dizzy or Bujo at the Taylor Avenue crack house to collect the drugs. On one day, July 1, 2005, Baker bought five eightballs of crack cocaine from Bujo and was prevented from making a sixth purchase only because operations had closed for the night.

Trial began on October 10, 2006, and lasted six days. The jury convicted appellants on all charges with one minor exception.² Each was sentenced principally to 240 months imprisonment. These appeals followed.

DISCUSSION

I. Buyer-Seller Exception

Appellants contend that the evidence was insufficient to show that they had joined a conspiracy to distribute crack cocaine. They argue that their transactions were nothing more than purchases, which under the so-called "buyer-seller exception" developed in this Circuit's case law, do not suffice to prove a conspiracy for the transfer of illegal drugs. Their argument overstates the scope of the exception.

The essence of conspiracy is agreement among two or more persons to join in a concerted effort to accomplish an illegal purpose. United States v. Bayer, 331 U.S. 532, 542, 67 S.Ct. 1394, 91 L.Ed. 1654 (1947). To prove a conspiracy, the evidence must show that "two or more persons agreed to participate in a joint venture intended to commit an unlawful act." United States v. Desimone, 119 F.3d 217, 223 (2d Cir.1997). To be a member of a conspiracy one must, under Judge Learned Hand's classic formulation, "in some sense promote [the illegal] venture himself, make it his own, have a stake in its outcome." United States v. Falcone, 109 F.2d 579, 581 (2d Cir.1940) (L. Hand, J.), aff'd 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940); see also United States v. Beech-Nut Corp., 871 F.2d 1181, 1191 (2d Cir.1989) ("[A] defendant may be deemed to have agreed to join a conspiracy if there is something more, some indication that the defendant knew of and intended to further the illegal ventures, that he somehow encouraged the illegal use of goods or had a stake in such use." (internal quotation marks omitted)); United States v. Borelli, 336 F.2d 376, 385 (2d Cir.1964). Accordingly, unless at least two persons have a shared purpose or stake in the promotion of an illegal objective, there is no conspiracy.

As a literal matter, when a buyer purchases illegal drugs from a seller, two persons have agreed to a concerted effort to achieve the unlawful transfer of the drugs from the seller to the buyer. According to the customary definition, that would constitute a conspiracy with the alleged objective of a transfer of drugs. Our case law, however, has carved out a narrow exception to the general conspiracy rule for such transactions. See, e.g., United States v. Hawkins, 547 F.3d 66, 71-72 (2d Cir.2008) (citing several cases from our Circuit to the effect that a simple drug transaction is not sufficient, by itself, to support a conspiracy conviction); United States v. Gore, 154 F.3d 34, 40 (2d Cir. 1998) (observing that "[w]ithout...