United States v. Gadson

• Decision Date: 19 August 2014
• Docket Number: Nos. 12–30007,12–30047.,s. 12–30007
• Citation: 763 F.3d 1189
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Anthony GADSON, aka Anthony Gadsen, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Willie Wilson, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

763 F.3d 1189

UNITED STATES of America, Plaintiff–Appellee,

v.Anthony GADSON, aka Anthony Gadsen, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Willie Wilson, Defendant–Appellant.

Nos. 12–30007, 12–30047.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Aug. 13, 2013.

Filed Aug. 19, 2014.

John Balazs, Sacramento, CA, for Defendant–Appellant Anthony Gadson.

Krista Hart, Sacramento, CA, for Defendant–Appellant Willie Wilson.

Kirby A. Heller (argued), Mythili Raman, Acting Assistant Attorney General, Denis J. McInerney, Acting Deputy Assistant Attorney General, Criminal Division, United States Department of Justice, Washington, D.C.; Karen L. Loeffler, United States Attorney, Elizabeth F. Crail, Special Assistant United States Attorney, Stephen Cooper, Assistant United States Attorney, Anchorage, AK, for Plaintiff–Appellee.

Appeal from the United States District Court for the District of Alaska, Ralph R. Beistline, Chief District Judge, Presiding. D.C. Nos. 4:11–cr–00010–RRB–4, 4:11–cr–00010–RRB–2.

Before: ALEX KOZINSKI, Chief Judge, and MARSHA S. BERZON and SANDRA S. IKUTA, Circuit Judges.

OPINION

IKUTA, Circuit Judge:

Anthony Gadson and Willie Wilson appeal their convictions for conspiracy to distribute more than 500 grams of cocaine, possession with intent to distribute controlled substances, and possession of firearms in furtherance of their conspiracy and possession of controlled substances. Wilson also appeals his conviction for retaliation against a witness. On appeal, they challenge various evidentiary rulings, the correctness of certain jury instructions, the sufficiency of the evidence as to two counts, and sentencing determinations. We affirm the convictions.

I

During the period from March 2009 through February 2010, a residence at 5260 Fouts Avenue in Fairbanks, Alaska, was the hub of a drug trafficking operation. Two brothers, Brandon and Joshua Haynes, along with Donte Edwards, lived at the Fouts house.¹ Gadson, a brother of Brandon and Joshua Haynes, visited the house from time to time, though he lived in Anchorage. Wilson, a cousin of the Haynes brothers and Gadson, joined the group in November 2009. Joe Powell was also involved with the group and would sometimes complete transactions on behalf of Brandon Haynes.

According to testimony at trial, Joshua Haynes regularly sold crack cocaine at or near the Fouts house. Joshua made ten sales of cocaine to Joshua Voaklander during the spring and summer of 2009, half of which were witnessed by Gadson. During one of the transactions at which Gadson was present, Joshua displayed an assault rifle hidden under his couch cushions to Voaklander, which Joshua said was “for when somebody comes in through the front door.”

One of the sources for the cocaine was a person with the code name “Transporter” who brought drugs up from Anchorage to the Fouts house in Fairbanks. On the two occasions that Gadson's trips to the Fouts house coincided with Transporter's trips, Gadson picked up bags containing $40,000 to $50,000 in cash from Brandon Haynes. At one point, Transporter was arrested for driving without a license, and Gadson complained that his arrest could have “messed everything up,” meaning “everybody go to jail.”

Officer Avery Thompson, a member of the Alaska Statewide Drug Enforcement Unit, began investigating this drug conspiracy in early 2010. By February 2010, he suspected that the Fouts house was at the center of a drug operation. A confidential informant working with the investigation executed two controlled buys of cocaine from Edwards, one of which took place in the driveway of the Fouts house. Following the buy, Officer Thompson and other members of the Fairbanks police department obtained a search warrant for the Fouts house. Although no one was in the house at the time of the search, they saw footprints in the new snow leading away from the open kitchen window. Subsequent investigation revealed that these footprints belonged to Wilson, and that when the police arrived, Wilson escaped out the window in his bare feet and scrambled over to a friend's house.

Inside, Officer Thompson and the other police investigators found a shoe box on top of the living room couch containing approximately a kilogram of cocaine, another shoe box containing another kilogram of cocaine and some $29,000 in cash behind the drugs. Gadson's fingerprints were identified on the second living room shoe box. A loaded shotgun and ballistic vests were found near the shoe boxes. Powder cocaine, crack cocaine, ecstasy, marijuana, drug paraphernalia, and more cash and money orders were found in various locations in the kitchen and dining room. The bedrooms contained more drugs. In one bedroom, the police found Wilson's possessions, including prescription pill bottles in Wilson's name and a ring with Wilson's initials. Inside that room, the officers found powder cocaine, crack, marijuana, heroin, 156 tabs of ecstasy, and approximately $13,000 in cash. A loaded handgun was nearby on the floor.

While the police were searching the Fouts house, Wilson had reached his friend's house, and informed Edwards (who was also at the friend's house) about the raid. Edwards and Wilson drove to Gadson's house in Anchorage and decided to stay there until things cooled off in Fairbanks. Brandon Haynes was also in Anchorage at the time. After about two weeks, Edwards returned to Fairbanks, and began buying drugs from Gadson for sale. But when Brandon Haynes returned to Fairbanks at the end of May, and resumed drug activities in a new location, Edwards switched back to Haynes as a supplier.

At some point in November 2010, the police used a confidential informant named Donny Pitka to make a controlled buy from Brandon Haynes. Pitka asked Brandon to deliver the drugs to undercover police in a vehicle near Brandon's new apartment on Adams Drive. Brandon had Powell deliver the cocaine, and the police arrested Powell when he approached the vehicle. The police then closed in on the Adams Drive apartment, arrested Brandon, and discovered cocaine, marijuana, ecstasy, oxycontin, and $14,000 in cash inside the apartment.

With Brandon Haynes in police custody, Edwards began buying again from Gadson. In January 2011, Gadson sold Edwards seven or more ounces of cocaine. By March 2011, Gadson moved up from Anchorage to 2805 Gillam Way in Fairbanks. On April 20, a federal grand jury indicted Gadson, Wilson, Brandon Haynes, Edwards, Powell, and others. Arrest warrants were issued for the defendants.

Officer Thompson picked up Gadson's trail at the end of April. After conducting several days of surveillance at Gadson's Gillam Way house and observing a good deal of “short-term traffic” indicative of drug dealing, he obtained a search warrant for the residence and garage. Officers executed the warrant at the beginning of May and found a ballistic vest and around $3,950 cash in the house. They discovered another $38,430 in a bag in the unlocked garage. The officers did not recover any firearms or an appreciable amount of cocaine from the Gillam Way house. Later that day, Gadson was arrested in his vehicle with another $1,300 on his person. Wilson turned himself in a few days later after learning of the outstanding warrant. Further investigation of the items obtained from the Gillam Way house suggested they had been used in drug transactions. A drug dog named Marley gave positive alerts for the presence of narcotics when presented with cash found at Gadson's house and on his person.

Following their arrests, Gadson, Edwards, Wilson, and Powell were all detained in the same wing of the Fairbanks Correctional Center. Pitka, who had been involved in the controlled buy that led to Brandon Haynes's arrest, was in the same prison on unrelated charges. After Powell learned about Pitka's role from his attorney, word spread to the other co-conspirators. In a series of recorded phone calls between Wilson and his cousin, Gabriella Haynes, Wilson discussed the police reports mentioning Pitka and told Gabriella Haynes that “the CI's here,” using the standard abbreviation for a confidential informant. A few days later, Wilson told Gabriella that “[s]nitches can't go into the hallways.” On May 21, soon after the call to Gabriella Haynes, Wilson assaulted Pitka as he was walking down the hallway. The assault lasted two minutes and was captured on video. Although the details of the fight are disputed, the video recording shows Wilson punching Pitka, who suffered a number of abrasions, scratches, and bites from the encounter. The day after the assault, Wilson called Gabriella Haynes again and told her that he hit “Donny,” who had “started this shit,” and referenced the earlier controlled buy between Pitka and Brandon Haynes.

On June 23, 2011, the government charged Gadson, Wilson, and others with five crimes: conspiracy to distribute, and possession with intent to distribute, more than 500 grams of cocaine and other controlled substances, in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(B), (b)(1)(C), (b)(1)(D) (Count 1); possession with intent to distribute controlled substances, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B), (b)(1)(C), (b)(1)(D) (Count 2); possession of firearms in furtherance of Counts 1 and 2, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count 3); and conspiracy to retaliate against a witness, in violation of 18 U.S.C. § 1513(e) (Count 5). The government also charged Wilson with attempting to kill a witness, in violation of 18 U.S.C. § 1513(a)(1)(B), (a)(2)(B) (Count 6), and retaliation against a witness, in violation of 18 U.S.C. § 1513(b)(2) (Count 7).

On October 11, 2011, a jury found Gadson and Wilson guilty of conspiracy to distribute, possession of drugs with intent to distribute, and possession of three firearms in furtherance of the conspiracy (Counts 1, 2 and 3). Wilson was also found guilty of retaliation against a witness (Count 7). Neither was found...