U.S. v. Ivy, K-D

• Citation: 83 F.3d 1266
• Decision Date: 10 May 1996
• Docket Number: Nos. 94-6131,K-D,s. 94-6131
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tracy Dinah IVY, aka Tracy Norwood, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Samuel Earl NORWOOD, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Joye Collette TRAYLOR, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Raymond Howard HICKMAN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Kenny TAYLOR, akaawg, Defendant-Appellant. to 94-6133, 94-6136 and 94-6137.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1266

83 F.3d 1266

UNITED STATES of America, Plaintiff-Appellee, v. Tracy Dinah IVY, aka Tracy Norwood, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Samuel Earl NORWOOD, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Joye Collette TRAYLOR, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Raymond Howard HICKMAN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Kenny TAYLOR, aka K-Dawg, Defendant-Appellant.

Nos. 94-6131 to 94-6133, 94-6136 and 94-6137.

United States Court of Appeals,

Tenth Circuit.

May 10, 1996.

Nos. 94-6136 and 94-6137 submitted on the briefs. ^*

Leslie M. Maye, Assistant United States Attorney (Patrick M. Ryan, United States Attorney, with her on the brief), Oklahoma City, Oklahoma, for Plaintiff-Appellant.

Jill M. Wichlens, Assistant Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on the briefs), Denver, Colorado, for Defendant-Appellant Tracy Dinah Ivy.

David M. Dunlap (David Lynn on the brief), Oklahoma City, Oklahoma, for Defendant-Appellant Samuel Earl Norwood.

David M. Dunlap, Oklahoma City, Oklahoma, for Defendant-Appellant Joye Collette Traylor.

Thomas D. McCormick, Oklahoma City, Oklahoma, for Defendant-Appellant Raymond Howard Hickman.

Kenneth Watson, Oklahoma City, Oklahoma, for Defendant-Appellant Kenny Taylor.

Before BRORBY, McKAY and ALARCON, ^** Circuit Judges.

BRORBY, Circuit Judge.

A jury convicted Tracy Dinah Ivy, Samuel Earl Norwood, Joye Collette Traylor, Raymond Howard Hickman, and Kenny Taylor of one count of conspiracy "to possess with intent to distribute and to distribute cocaine powder and/or cocaine base (crack)" in violation of 21 U.S.C. §§ 841(a)(1) and 846, and convicted Ms. Ivy of four counts, Mr. Norwood of seven counts, Ms. Traylor of nine counts, and Mr. Hickman and Mr. Taylor of three counts of distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1). It also convicted Mr. Norwood and Ms. Traylor of two counts and Mr. Hickman of one count of distribution of cocaine to persons under age twenty-one in violation of 21 U.S.C. § 859, convicted Mr. Norwood and Mr. Hickman of three counts of possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1), and convicted Mr. Norwood of two counts of interstate travel in aid of racketeering in violation of 18 U.S.C. § 1952(a)(3) and two counts of aiding and abetting distribution of cocaine base in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1).

The district court sentenced Mr. Norwood and Mr. Hickman each to an aggregate sentence of life imprisonment. Ms. Ivy received an aggregate sentence of thirty years, Ms. Traylor received an aggregate sentence of twenty-seven years, and Mr. Taylor received an aggregate sentence of twenty-one years, ten months.

In this consolidated appeal, Ms. Ivy, Mr. Norwood, Ms. Traylor, Mr. Hickman, and Mr. Taylor challenge their convictions, and all except Mr. Taylor challenge their sentences. We exercise jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. 1291, remand Ms. Ivy's and Mr. Hickman's cases for resentencing in accordance with this opinion, and affirm the defendants' convictions and sentences in all other respects.

I. Factual and Procedural Background

This case is the result of a five-year investigation by federal and local law enforcement officers. The investigation uncovered a large-scale conspiracy to distribute crack cocaine in the Kerr Village area of Oklahoma City. Mr. Norwood was the leader of the conspiracy, and Ms. Ivy, Ms. Traylor, and Mr. Hickman acted as intermediaries, shuttling drugs and cash between Mr. Norwood and the many street dealers he supplied, including Mr. Taylor, Mr. Chitwood, Leroy Washington, Nathaniel Washington, Moty Davis, Nigel Clay, Flora Ingram, and Richard Ingram. What follows is a rough chronology of the Norwood/Hickman conspiracy, describing the involvement of the many players who passed in and out of it until its downfall in 1993.

A. The Street Dealers

The story of this conspiracy begins in the summer of 1988. One of Mr. Norwood's 1988 suppliers, Larry Hornsby, testified he fronted Mr. Norwood between one-half and one ounce of crack cocaine about twice per week for approximately two months. Mr. Hornsby was arrested in October 1988 on federal drug charges, but was released after six days. After he was released, their roles reversed, and Mr. Hornsby began purchasing cocaine from Mr. Norwood, who in turn got the cocaine from a supplier in California. Mr. Hornsby gave Mr. Norwood $1,500 to purchase one and one-half ounces of cocaine powder from his California supplier, which Mr. Hornsby later cooked into crack cocaine. Mr. Norwood personally drove to California and retrieved the cocaine. Mr. Hornsby continued to purchase cocaine from Mr. Norwood during the six to eight months following his release in October 1988. He made two or three purchases of one or one and one-half ounces of cocaine powder. Mr. Norwood showed Mr. Hornsby one-quarter to one-half kilogram of cocaine in Mr. Norwood's apartment in January 1989. Mr. Hornsby also saw a safe with money in it. On one occasion, Mr. Norwood had a woman he was living with at the time, Priscilla Meadows, deliver two ounces of cocaine powder to Mr. Hornsby. According to Mr. Hornsby, Mr. Norwood also had Ms. Ivy help him distribute crack cocaine, and there was "no doubt about it that she was part of his business." Mr. Norwood was distributing cocaine to a number of other individuals for resale during this time, including Audrey Holmes.

Orville Nelson testified that in summer 1989, when he was sixteen years old, he and Mr. Norwood's cousin used to steal items and sell them to Mr. Norwood. One day that summer, Mr. Norwood's cousin and Orville Nelson saw Mr. Norwood drive by, waved him down, got into his car, and drove toward the apartment Mr. Norwood was living in at the time. While they were in the car, Mr. Norwood showed Orville Nelson a large diamond ring he was wearing and said that to be rich like him, "what you all need to do is, you know, sell some dope for me." Mr. Norwood then fronted Orville Nelson seven grams of crack cocaine. Orville Nelson agreed to sell the crack cocaine for $500 and return $250 to Mr. Norwood. Mr. Norwood's cousin taught Orville Nelson how to divide up the cocaine with a razor and sell it on the street. It took Orville Nelson one week to sell the seven grams of crack cocaine. Mr. Norwood supplied Orville Nelson with approximately seven grams of crack cocaine per week for two and one-half months. Thereafter, Mr. Norwood stopped handling the crack cocaine he supplied to Orville Nelson, and had Ms. Ivy deliver it to him instead. However, Orville Nelson continued to give the money to Mr. Norwood. Ms. Ivy delivered seven gram packets of crack cocaine to Orville Nelson between five and ten times. Orville Nelson stopped selling crack cocaine in December 1989. In May 1993, Orville Nelson started selling crack cocaine he received from Richard Ingram, who in turn received his supplies from a man named Lawrence. Orville Nelson also saw Mr. Taylor selling crack cocaine in Kerr Village, and once in June 1993 bought one-half ounce of crack cocaine from him and resold it.

Richard Ingram, began selling crack cocaine in March 1990, when he was fifteen years old. In this first transaction, Mr. Hickman fronted him four or five grams of crack cocaine. For the next five or six months, Mr. Ingram sold approximate one-quarter ounce of crack cocaine every two days, all supplied by Mr. Hickman. Mr. Hickman was also supplying Nathaniel Washington and an individual named Rodney at that time. Mr. Hickman's brother, Mr. Norwood, was his supplier. During the seven or eight months following September 1990, Mr. Ingram sold crack cocaine off and on. During the four or five months following August 1991, Mr. Ingram sold five or six half-ounce quantities of crack cocaine he received from his sole supplier, Mr. Hickman, who in turn received his supply from Mr. Norwood. Mr. Ingram continued to sell about one ounce of crack cocaine per month throughout 1992, again from his sole supplier Mr. Hickman. On one occasion in 1992, Mr. Ingram saw Ms. Traylor deliver crack cocaine to Mr. Hickman. Mr. Ingram got crack cocaine from a person named Lawrence in February to September 1993, and stopped buying crack cocaine from Mr. Hickman and Mr. Norwood, except for three occasions when Lawrence ran out of crack cocaine. Ms. Traylor participated in all three transactions. Mr. Ingram sold one-half ounce of crack cocaine to Mr. Taylor in September 1993, and saw him sell crack cocaine in August 1993.

Lee Roy Washington testified he began selling crack cocaine in August 1991, when he was twenty-one years old. He explained he did not need anyone to introduce him to the crack cocaine business because he "knew what to do. Right there on TV, it was obvious to everybody." Ms. Ingram introduced Mr. Washington to Mr. Hickman, and Mr. Hickman sold him a sixteenth of an ounce of crack cocaine. Starting around August 1992, Mr. Washington also got crack cocaine from Mr. Norwood, but not directly, because Ms. Ivy made the deliveries. Mr. Norwood, through Ms. Ivy, supplied Mr. Washington with one-half ounce quantities of crack cocaine on two occasions, and one ounce quantities on two or three occasions. Ms. Traylor also delivered one-half ounce quantities to Mr. Washington once or twice. Mr. Washington delivered the money directly to Mr. Norwood once or twice.

Moty Reed Davis testified he began selling crack cocaine in 1991 at age sixteen. Mr. Davis saw Mr. Taylor sell crack cocaine in late 1991 or early 1992. Mr. Taylor and Mr. Davis lived together in late 1992. During that time, Mr. Taylor told Mr. Davis he could get crack cocaine from Mr. Hickman or Richard Ingram. Mr. Davis purchased one-quarter and one-half ounce quantities from Mr. Hickman on three or...