U.S. v. Warman
| Decision Date | 18 August 2009 |
| Docket Number | No. 05-4416.,05-4416. |
| Citation | 578 F.3d 320 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Steven E. WARMAN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Appellee. ON BRIEF: Paul L. Nelson, Federal Public Defender's Office, Western District of Michigan, Grand Rapids, Michigan, for Appellant. Ava M.R. Dustin, Joseph R. Wilson, Assistant United States Attorneys, Toledo, Ohio, for Appellee. Steven E. Warman, Morgantown, West Virginia, pro se.
Before: COLE and CLAY, Circuit Judges; CLELAND, District Judge.*
Defendant-Appellant Steven E. Warman appeals his conviction for conspiracy to possess and distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. He also challenges his 97-month sentence. Warman's conviction and sentence arise from his involvement in a drug-selling operation with members of the Outlaw Motorcycle Club ("OMC" or "Outlaws"), an international motorcycle club with chapters nationwide and abroad. Following a large-scale investigation, Warman and thirty-seven co-defendants were indicted for a widespread conspiracy involving violations of the Racketeer Influenced Corrupt Practices Act ("RICO"), 18 U.S.C. § 1961, et seq., and various narcotics and firearms laws. Warman asserts that: (1) there was insufficient evidence to support his conviction; (2) the district court improperly admitted co-conspirator statements in violation of Federal Rule of Evidence 801(d)(2)(E) ("Rule 801(d)(2)(E)"); (3) he was prejudiced by an impermissible variance between the indictment and the proof at trial; (4) the district court abused its discretion by empaneling an anonymous jury; (5) the district court committed numerous other trial errors; and (6) his 97-month sentence is unreasonable. For the following reasons, we AFFIRM Warman's conviction and sentence.
Since its founding outside of Chicago in 1935, the OMC has grown to become an international motorcycle club with over 1700 dues-paying members in 176 chapters throughout the United States and in twelve foreign countries. See Department of Justice, About Violent Gangs, available at http://www.usdoj.gov/criminal/gangunit/ about/omgangs.html (last visited Aug. 1, 2009). The Outlaws are reputed to engage in a number of criminal activities, including arson, assault, explosives, extortion, fraud, homicide, intimidation, kidnapping, money laundering, prostitution, robbery, theft, and weapons violations. Id. According to the United States Department of Justice Gang Reports, the Outlaws have a history of secrecy and violence, and are well known for retaliating against witnesses and informants. Id.
In December 1997, the Toledo, Ohio office of the Federal Bureau of Investigation ("FBI") and various state law enforcement agencies initiated an investigation of the "Green region" of the OMC, consisting of club chapters in Dayton, Ohio; Fort Wayne, Indiana; Louisville, Kentucky; Indianapolis, Indiana; and Oklahoma City, Oklahoma. As a result of the investigation, in April 2003, a federal grand jury in the Northern District of Ohio returned a forty-count indictment charging thirty-eight defendants with various offenses, including RICO violations, drug-trafficking conspiracy, and firearms offenses. Warman was charged with the drug-trafficking conspiracy.
The defendants charged with RICO violations were tried separately. See United States v. Wheeler, No. 3:03-cr-07739 (N.D.Ohio). On July 28, 2004, at the close of the RICO trial, the government obtained a superseding indictment against thirteen defendants setting forth two separate counts. Count 1, the narcotics conspiracy charge, and Count 2, the firearms conspiracy charge, were both abbreviated versions of the narcotics and firearms conspiracy counts contained in the original indictment. Warman was again charged only with the narcotics conspiracy. Ten of the thirteen defendants charged under the superseding indictment pleaded guilty, but Warman, Rex Deitz, and Lloyd Heckman proceeded to trial together.
Evidence at the trial established that although Warman was never a member of the OMC, he had been closely associated with the Green region Outlaws for a number of years. Warman testified that after becoming acquainted with the OMC in the 1970s, he employed Outlaws at his Dayton, Ohio motorcycle shop, S & S Custom Cycle ("S & S"), and rented Outlaws several of his residential properties. Warman also owns a building that houses Eisenhauer's Tavern ("Eisenhauer's")—a popular Outlaw hangout in Dayton—where Warman worked as a bartender. FBI Agents Larry Hawks and David Potts testified that Warman's close social and financial association with the OMC sparked the FBI's interest in him. Although Warman claimed that he never sold drugs, a number of witnesses testified that Warman conducted narcotics transactions with Outlaws. The following comprises the key testimony relating to Warman's conviction.
In early 1998, James Dilts became an FBI confidential informant in return for money to pay off drug debts and club dues he owed to Gary "Rambo" Hohn, the president of the Dayton chapter at that time. Dilts worked as a confidential informant until he left the Outlaws in 2000, and during that time he covertly tape-recorded several drug transactions and related incriminating conversations between him and other club members.
Dilts testified that he saw Warman hand Al Lawson, an Outlaw, a quarter of an ounce of cocaine at a January 31, 1999 Super Bowl party at the Dayton clubhouse. He also witnessed Warman with scales, cocaine, and plastic baggies at S & S on March 2, 1999. Dilts further testified that David Jack Hannum, an Outlaw and well-known drug supplier, told Dilts that Warman was his "partner" in the cocaine trade. Dilts also stated that on June 10, 1999, he saw Hannum hand Warman $2000 in cash, although Dilts acknowledged that he did not know the reason for the transfer. Further, Dilts testified that on August 9 and 11, 1999, he accompanied Hannum to Hannum's pottery shop, located across the street from Eisenhauer's, where he witnessed Hannum retrieve cocaine from a mold in the basement, which Hannum subsequently gave to Hohn at Eisenhauer's. Dilts also recalled that on August 21, 1999, Warman handed Hannum a plastic baggy containing white powder at Eisenhauer's.
Dilts testified that in early December 1999, Hannum told him that he and Warman had arranged to receive a shipment of cocaine from a Florida supplier. Dilts further testified that Hannum elaborated on the transaction while driving with Dilts from Dayton to Florida to attend a New Year's party, at which time he also told Dilts that he would kill informants and that he had once witnessed other Outlaws murder an informant. Hannum also said that he planned to hand his cocaine business over to Warman and another Outlaw, so he could focus on selling Vicodin and Xanax.
Gary Watkins, an Outlaw, became a confidential informant for the FBI in June 2001, and was the Dayton chapter treasurer in 1998. Watkins testified that in late 1999, Hannum told him that he was planning to travel to Florida with Warman to pursue a connection to a cocaine distributor, and Watkins recalled that cocaine was "more plentiful" after the two men returned to Dayton. Watkins further stated that although he saw Warman with cocaine at both S & S and the Dayton clubhouse, he never actually witnessed Warman buy or sell any illegal drugs.
Greg Armstrong, a former member of the Indianapolis chapter and the local "enforcer"—the Outlaw responsible for organizing retaliation efforts and serving as a bodyguard for high-profile members—testified that he transported cocaine from Indianapolis to Sandusky, Ohio ten to fifteen times for then-international club president, James "Frank" Wheeler. Armstrong testified that he knew Warman and had used cocaine with him, but he explained that he never saw Warman with more than a half an ounce of cocaine at one time. Armstrong also never saw Warman sell cocaine, and he testified that he did not consider Warman to be a cocaine dealer, and that he "probably [would have] know[n] if he was...." (Joint Appendix ("JA") 507.)
Christopher Walters, a confidential informant, testified about statements Warman's son, Johnny Warman ("Johnny"), made to him about Warman's drug sales. Walters stated that Johnny told him that he processed cocaine for Warman and others, cutting it with cheaper materials and compressing it into the shape of a "hockey puck." (JA 514.) Walters testified that according to Johnny, Warman received one to two kilograms of cocaine at a time from a Florida supplier, that Johnny also processed cocaine for Hannum and other Outlaws, and that although Johnny and his father worked on Outlaws' motorcycles and peddled their cocaine, they would never join the OMC because they did not want to pay the significant club dues or share a percentage of their drug-related profits.
Walters testified that after he witnessed Johnny with thirty processed "pucks" and one "brick" (kilogram) of cocaine, which he considered a large quantity, he called the Drug Enforcement Agency ("DEA") and began making controlled purchases from Johnny for DEA Agent Brent Rasor. He recalled that during one such transaction in 2002, Johnny was repairing his mother's driveway when Warman stopped by to inform Johnny's mother that he needed to talk to Johnny about a shipment that had arrived; Johnny subsequently left his mother's home for the rest of the day. Walters testified that he assumed Warman was referring to a shipment of cocaine that he...
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