801 F.2d 304 (8th Cir. 1986), 85-2351, United States v. Jones

Docket Nº:85-2351, 85-2441.
Citation:801 F.2d 304
Party Name:UNITED STATES of America, Appellee, v. Michael E. JONES, Appellant. UNITED STATES of America, Appellee, v. Ralph Milton PFEISTER, Appellant.
Case Date:September 11, 1986
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 304

801 F.2d 304 (8th Cir. 1986)

UNITED STATES of America, Appellee,

v.

Michael E. JONES, Appellant.

UNITED STATES of America, Appellee,

v.

Ralph Milton PFEISTER, Appellant.

Nos. 85-2351, 85-2441.

United States Court of Appeals, Eighth Circuit

September 11, 1986

Submitted June 11, 1986.

Rehearing Denied Oct. 31, 1986 in No. 85-2441.

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[Copyrighted Material Omitted]

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E. David Lewis, Little Rock, Ark., for appellant Jones.

Paul Johnson, Little Rock, Ark., for appellant Pfeister.

Terry L. Derden, Asst. U.S. Atty., Little Rock, Ark., for appellee.

Before HEANEY, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and BATTEY, [*] District Judge.

HEANEY, Circuit Judge.

Michael E. Jones and Ralph M. Pfeister were convicted of narcotics violations which stemmed from an alleged conspiracy to sell amphetamines and cocaine in the State of Arkansas. Twenty-one others were also indicted; charges against them were disposed of through dismissals or guilty pleas to lesser offenses. After entering jury waivers, Jones and Pfeister were tried together to the court and convicted of: 1) conspiring to possess with the intent to distribute methamphetamine, amphetamine, and cocaine in violation of 21 U.S.C. Sec. 846; 2) knowingly and willfully distributing amphetamine and methamphetamine

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in violation of 21 U.S.C. Sec. 841(a)(1); 3) unlawfully using a communications facility in furtherance of a conspiracy in violation of 21 U.S.C. Sec. 843(b); and 4) engaging in a continuing criminal enterprise (CCE) in violation of 21 U.S.C. Sec. 848. Jones received a twenty-two year sentence and Pfeister received a twenty-year sentence.

On appeal, Jones and Pfeister claim the evidence was insufficient to sustain their CCE convictions. Jones alleges nine additional errors: 1) Wharton's Rule bars his conspiracy conviction; 2) the evidence was insufficient to sustain the unlawful use of communications facility conviction; 3) the motion to recuse the magistrate who executed the wiretap orders and search warrants should have been granted; 4) the motion to have the informants interviewed by defense counsel should have been granted; 5) the motion to suppress items seized at the execution of the search warrant should have been granted; 6) the fruits of the electronic wiretap should have been suppressed; 7) the court should have suppressed statements made by the defendants to a confidential informant; 8) the district court's application of the Criminal Justice Act violated Jones' sixth amendment right to counsel; and 9) the district court improperly admitted evidence of two assaults. Pfeister alleges one additional error: the indictment should have been dismissed because his right to a speedy trial was violated. We address each issue in turn.

I. CONTINUING CRIMINAL ENTERPRISE.

Jones and Pfeister contend that the evidence was insufficient to sustain their convictions under the CCE statute. In examining this contention, we view the evidence in the light most favorable to the government to determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979) (emphasis in original). Section 848 comprises five essential elements:

1) a felony violation of the federal narcotics laws;

2) as part of a continuing series of violations;

3) in concert with five or more persons;

4) for whom the defendant is an organizer or supervisor;

5) from which he derives substantial income or resources.

United States v. Lewis, 759 F.2d 1316, 1331 (8th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 406, 88 L.Ed.2d 357 (1985) (citations omitted).

For reversal, Jones and Pfeister argue that the government did not prove that their drug sales were part of a continuing series of violations, that they organized a group of people, or that they derived substantial income from selling drugs.

A. Continuing Series of Violations.

"Continuing" requires that the course of illicit conduct span a definite period of time, and a "series" is established by proof of three or more related violations. United States v. Bergdoll, 412 F.Supp. 1308, 1317 (D.Del.1976). See United States v. Becton, 751 F.2d 250, 254 (8th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 3480, 87 L.Ed.2d 615 (1985).

Jones and Pfeister argue that the evidence shows only that they consummated separate unrelated drug sales which are not covered by the CCE statute. We are not convinced. A careful examination of the record reveals that during the time frame of the indictment--January, 1983, to February 19, 1985--Jones and Pfeister were major suppliers in a large and active narcotics distribution network.

At least seven witnesses testified to purchasing drugs from Jones during 1983. Jack Branch testified that he had an ongoing relationship with Jones and purchased one ounce of methamphetamine per week during the course of the indictment. Lester Kendrick testified that he gave Jones $60,000 for amphetamines and marijuana during 1983, in various increments, for a

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series of sales. These sellers, who were working for Jones, were cognizant of the organization they were a part of and knew they could get more drugs from Jones at any time.

Pfeister had an ongoing relationship with Jones and was Jones's primary supplier during the indictment period. Kendrick testified that he paid Pfeister at least $65,000 for marijuana in various increments during 1983 and 1984. It is clear that both Jones' and Pfeisters' drug sales were part of a continuing series of violations as contemplated by the CCE statute.

B. Organized, Supervised, or Managed at Least Five Other Persons.

The supervisory relationship specified in the CCE statute need not have existed with regard to the five persons at the same time, those five persons need not have acted in concert, and the same type of supervision need not have been exercised over each person. Becton, 751 F.2d at 254-55. The accused must, however, occupy a "sufficiently central role to be regarded as holding 'a position of organizer, a supervisory position or any other position of management.' " The five others must participate in such a way so that they could be said to have fallen under the accused's managerial authority. United States v. Lewis, 759 F.2d 1316, 1331 (8th Cir.1985). Furthermore, the government need not prove that the supervisor had personal contact with each person. United States v. Dickey, 736 F.2d 571, 587 (10th Cir.1984), cert. denied, sub nom., Freidrich v. U.S., 469 U.S. 1188, 105 S.Ct. 957, 83 L.Ed.2d 964 (1985).

Jones and Pfeister acknowledge that they "fronted," or sold on credit, drugs to five or more persons. They argue, however, that simply fronting drugs to five or more persons does not amount to controlling those persons and thus cannot support their conviction under the CCE statute. We agree with that contention. At oral argument before this Court, the government acknowledged that evidence of fronting drugs, without more, would be insufficient proof to support the "control" element of the CCE statute. However, as the government pointed out and our own review of the record revealed, the proof against Jones and Pfeister on this point was substantially more than simply that they fronted drugs.

The record reveals that Jones and Pfeister were closely aligned in this drug network. Although Pfeister sold Jones drugs and thus was one step up in the chain of distribution, theirs was a cooperative relationship. They conferred over payments, inventory, and quality of the drugs. Kendrick shuttled drugs and money between Jones and Pfeister at least fifteen times. Pfeister gave Jones a percentage of sales he made to Jones's customers. Further, Branch testified that Jones told him that he owned one-third of the Harrison, Arkansas, drug operation along with Pfeister and George Wheeler. However, we are not prepared to say that Jones and Pfeister were partners, and thus Jones cannot be convicted on the basis of testimony against Pfeister and vice versa. Nevertheless, we find sufficient evidence in the record indicating that Jones controlled at least five persons and that Pfeister controlled at least five other persons.

1. Jones.

Jones controlled, at the very least, the following six individuals: 1) Jack Branch, 2) Bobbie Staton, 3) Lonnie Staton, 4) David Briscoe, 5) Allan Koller, and 6) Wally Kendrick. Jones asserted a possessory interest in at least three of those individuals as his customers. Branch testified: "I could go other places [for drugs] as long as he [Jones] knew where I was going." Kendrick testified that he had to pay an extra $100 for drug purchases from Pfeister, to be paid to Jones, because Kendrick was a Jones customer: "If you bought from him [Pfeister] and you was from Little Rock, you paid an extra hundred dollars [to Jones]." Lonnie and Bobbie Staton temporarily purchased drugs from an alternate source after having established themselves as Jones customers. When Jones learned of this purchasing arrangement, he went to

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the new source's home and beat him up with a pistol. As Bobbie Staton testified: "He was put out of business real quick."

Additionally, the evidence reveals that Jones used physical force, or threatened its use, to encourage his "sellers" to promptly pay him. And, he kept track of when his sellers were scheduled to be paid by their customers so that he knew just when to...

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