U.S. v. Wilkinson
| Decision Date | 22 February 1985 |
| Docket Number | D,Nos. 95-98,455,s. 95-98 |
| Parties | UNITED STATES of America, Appellee, v. Margaret Elaine WILKINSON, a/k/a "Jane Doe", a/k/a "Tippy", Ella Shipp, a/k/a "Ella Stitman", McAvoy Joseph Shipp, a/k/a "Shipp", a/k/a McAvoy Shipp, a/k/a "Mac", Wilfred C. Burch, a/k/a "Billy", Defendants-Appellants. UNITED STATES of America, Appellee, v. Walter Lee HILL, Defendant-Appellant. ocket 84-1108-1111, 84-1238. |
| Court | U.S. Court of Appeals — Second Circuit |
Henry Putzel, III, New York City, for defendant-appellant Margaret E. Wilkinson.
Robin Charlow, The Legal Aid Society, New York City (The Legal Aid Society, Federal Defender Services Unit, New York City, of counsel), for defendant-appellant Ella Shipp.
Audrey Strauss, New York City (Michelena Hallie, Mudge, Rose, Guthrie, Alexander & Ferdon, New York City, of counsel), for defendant-appellant McAvoy Joseph Shipp.
Theodore Krieger, New York City (William C. Chance, Jr., New York City, of counsel), for defendant-appellant Wilfred C. Burch.
Edward J.M. Little, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., Howard E. Heiss, Barry A. Bohrer, Asst. U.S. Attys., New York City, of counsel), for appellee.
Victor J. Herwitz, New York City, for defendant-appellant Walter Lee Hill.
Before LUMBARD, MANSFIELD and CARDAMONE, Circuit Judges.
After a jury trial in the Southern District of New York before Judge Edward Weinfeld on charges of conspiring to distribute and to possess with intent to distribute heroin and cocaine, 21 U.S.C. Sec. 846, engaging in a continuing criminal enterprise, 21 U.S.C. Sec. 848, possessing cocaine with intent to distribute, 21 U.S.C. Sec. 841(a)(1), and possessing heroin with intent to distribute, 21 U.S.C. Sec. 841(a)(1), four defendants appeal from the following convictions:
(1) Ella Shipp, narcotics conspiracy (Count One), continuing criminal enterprise (Count Two), possessing cocaine with intent to distribute (Count Three), and possessing heroin with intent to distribute (Count Four);
(2) McAvoy Joseph Shipp, narcotics conspiracy (Count One), possessing cocaine with intent to distribute (Count Three), and possessing heroin with intent to distribute (Count Four);
(3) Wilfred Burch, narcotics conspiracy (Count One);
(4) Margaret Elaine Wilkinson, narcotics conspiracy (Count One).
After a separate jury trial before Judge Weinfeld arising out of the same alleged narcotics conspiracy defendant Walter Lee Hill was convicted of conspiracy to distribute and to possess with intent to distribute heroin and cocaine, 21 U.S.C. Sec. 846. His appeal has not been consolidated with those of the other four defendants. However, since the cases involve the same background facts, we heard them on the same argument date and now write a single opinion covering all the appeals.
The evidence, viewed as it must be on appeal in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), reveals a far-reaching narcotics conspiracy, controlled from New York, which involved approximately a dozen people and narcotics sales made in New York and other cities, including Cleveland, Boston and Miami. 1 The central manager of the enterprise was Ella Shipp ("Ella"), who lived in New York with McAvoy Shipp ("Mac"). On June 9, 1982, an undercover FBI agent, Theodore Domine, met her through a confidential informant in Cleveland, Ohio. After giving Domine free samples of heroin and a diluent she explained that she preferred to deal in kilograms, with the least amount being an ounce of heroin for $12,000. On June 15 she gave Domine more details about her extensive narcotics distribution business, which was doing well, and described her luxurious life style in New York, following which she sold him a "40 On July 21, 1982, Ella met Domine and Bell in New York City, where she gave them a small quantity of cocaine and explained that she was involved with Mac, who had set her up in the heroin business with "Mafia" people in September 1981. Upon being introduced by her to Mac at their apartment the undercover agents were told by Mac about his cocaine supplier and that he had "lots of connections." Ella advised that she sold kilograms of heroin for $250,000 each, making a $50,000 profit on each sale. She later told Domine that under her arrangement with Mac she would handle the heroin sales while he handled the cocaine. Further negotiations by Ella with Domine in the following months for sale of heroin in varying amounts were aborted for different reasons, on one occasion because Ella's son, Marty Frierson, who was used by her to deliver heroin, panicked in the course of attempting to deliver heroin to Domine at a Cleveland hotel.
package" containing 28.23 grams of heroin for $12,000. On July 1 she invited Domine and the undercover agent with him, John Bell, to New York City, giving them her New York phone number and the Cleveland number of her sister, Elizabeth Thomas, described as knowing where Ella was at all times.
The nature and scope of the operations of Ella and Mac were further attested to by Gary Burke and Elaine Vivian Rodriguez, cooperating witnesses. In the spring of 1982 Burke supplied a half-kilogram of cocaine to Mac and Ella at the latter's New York apartment, for which Ella made a $10,000 down payment toward the $29,000 purchase price. Through two associates Burke continued to furnish drugs to Ella during the summer of 1982. On August 28th he delivered 22 to 25 pounds of marijuana to Ella and a half-kilogram of cocaine to Mac, receiving $4,000 from Ella plus an ounce of heroin which, in accordance with her instructions, was delivered to one Robert Cook and an "Ira" in South Carolina in exchange for $8,500 cash. More narcotics were supplied by Burke to the Shipps in the fall of 1982 until the relationship terminated as a result of a break-up between Ella and Mac and their failure to pay Burke all the money owed him.
Meanwhile, through Rodriguez Ella located another narcotics source, Carlos Cedeno, who in September 1982 delivered a kilogram to Ella and Mac at their New York apartment, for which Ella paid $40,000. As additional kilograms of cocaine were delivered to her in November by Cedeno Ella arranged with defendant Wilfred ("Billy") Burch, one of her distributors, to obtain cash from his sales, which she used to make payments to Cedeno and Rodriguez, sometimes accompanied by her son, Marty Frierson. On one occasion Mac brought defendant Margaret Elaine Wilkinson ("Tippy"), Ella's sister, from Cleveland to make a payment of $7,000 to Rodriguez and, when the latter asked Ella about supplying drugs directly to Tippy, Ella advised that Tippy used to help Ella sometimes. In all, Cedeno supplied Ella and Mac with approximately $200,000 of cocaine but received only $118,000 from them.
Intercepted telephone conversations revealed that during the period from October 20, 1982 to December 22, 1982, Ella (1) instructed her son Marty Frierson to pick up money and meet with customers; (2) arranged with "Billy" Burch and his employee Viola Reid for delivery of drugs to them and pick-ups of cash from them; (3) gave instructions to her sister Tippy in Cleveland regarding the handling of deliveries to and the payment schedules of customers and associates in Cleveland, including "Chuck," "Big Man," "Veenie" and Leola ("Lee") Moreland; and (4) orchestrated a trip by Walter Hill (during which he was kept under FBI surveillance) by air from Cleveland to her New York apartment to pick up narcotics and return by bus. 2
Ella's operations continued into 1983 when an undercover Drug Enforcement
Administration (DEA) agent, Antonio Rodriguez, pursuant to arrangements made through an informant and Gregg Shipp, Mac's son, negotiated a deal with her for the purchase of an ounce of cocaine. Though the sale was initially aborted on August 15, 1983, it was finally consummated in Gregg Shipp's apartment for $2,400. Upon her arrest on September 8, 1983, Ella was carrying five pocket-sized telephone books containing the names of various co-defendants. In Viola Reid's apartment agents found an Ohaus triple-beam balance scale (a type used to weigh narcotics), and one ounce of lactose, a commonly used diluent. In the apartment in which Hill was arrested the arresting agent found a similar scale and $2,200 cash 3; upon arresting Leola Moreland agents seized 44 packets of heroin and $5,000 in cash.
Ella Shipp contends that there was insufficient evidence to support her conviction under Count 2, which charged her and others with engaging in a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848. We disagree.
Section 848 makes it a separate crime for a person to commit a narcotics felony "in concert with five or more persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management," from which the person "obtains substantial income or resources." 4 Although the government must establish that the person charged acted as an organizer, supervisor or manager, these terms are to be given their ordinary meaning, United States v. Mannino, 635 F.2d 110, 116, 117 (2d Cir.1980), and the person need not have been the dominant organizer or manager as long as she was in a managerial position with respect to five other persons. United States v. Losada, 674 F.2d 167, 174 (2d Cir.), cert. denied, 457 U.S. 1125, 102 S.Ct. 2945, 73 L.Ed.2d 1341 (1982).
These requirements are met by the evidence in the present case. Though Mac introduced Ella to the drug business, she handled negotiations with the suppliers and had him function as a courier, finally directing Burch not to give him any more of the proceeds from the sales. Ella directed Marty Frierson's activities delivering drugs and collecting the proceeds. With...
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