U.S. v. Possick

• Decision Date: 15 June 1988
• Docket Number: No. 86-2356,86-2356
• Parties: 26 Fed. R. Evid. Serv. 88 UNITED STATES of America, Appellee, v. Kenneth A. POSSICK, a/k/a Kenneth Roberts, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 332

849 F.2d 332

26 Fed. R. Evid. Serv. 88

UNITED STATES of America, Appellee, v. Kenneth A. POSSICK, a/k/a Kenneth Roberts, Appellant.

No. 86-2356.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 15, 1988.

Decided June 15, 1988.

James Michael Merberg, Boston, Mass., for appellant.

Mitchell F. Stevens, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before HEANEY and WOLLMAN, Circuit Judges, and BRIGHT, Senior Circuit Judge.

WOLLMAN, Circuit Judge.

A jury convicted Kenneth A. Possick of one count of conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. Sec. 846 (1986); three counts of use of a communication facility in committing, causing, or facilitating a conspiracy, in violation of 21 U.S.C. Sec. 843(b) and 18 U.S.C. Sec. 2; two counts of interstate travel in aid of racketeering, in violation of 18 U.S.C. Secs. 1952, 2; one count of distribution of cocaine, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2; and one count of conducting a continuing criminal enterprise (CCE), in violation of 21 U.S.C. Sec. 848. In addition, Possick was found guilty of one count of using or intending to use his home in Florida to facilitate the commission of a criminal offense, in violation of 21 U.S.C. Sec. 853. The district court ¹ sentenced Possick to terms of imprisonment ranging from four to fifteen years on each count save the CCE count, all to run concurrently, with a sentence of twenty years' imprisonment without parole imposed on the CCE count. The jury also found that Possick's house in Florida was subject to forfeiture, and the district court so ordered.

The evidence at trial showed that from late 1984 through 1985, Possick, a Florida resident, distributed large quantities of cocaine, primarily in St. Louis, Missouri. Possick arranged for several individuals to transport cocaine to St. Louis for delivery to various buyers. Possick ordinarily fronted or consigned the cocaine to these buyers. After the buyers sold the cocaine in the St. Louis area, they either sent payment to Possick pursuant to his directions, or they were met by someone Possick sent to collect. Although Possick did visit St. Louis to oversee his business, he conducted the majority of his transactions over the phone.

On appeal, Possick raises the following contentions: (1) that the evidence was insufficient to establish the supervisory or managerial element of a CCE violation, (2) that the district court erred in refusing to sever the CCE count, (3) that the district court erroneously allowed the introduction of several charts into evidence, (4) that the government made improper remarks during its closing arguments, (5) that the jury did not receive the appropriate guidance on the forfeiture count, and (6) that the conviction for both conspiracy and CCE cannot stand. We affirm the district court in all respects save the simultaneous convictions for conspiracy and CCE. We remand for the sole purpose of allowing the district court to vacate the conspiracy conviction. The convictions on all the other counts are affirmed, and Possick's sentence remains unaffected.

I. Sufficiency of the Evidence for the CCE Conviction

We first note that our review of a jury verdict is limited to determining 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 (1979) (emphasis retained). "It is not for us to weigh the evidence or to determine the credibility of witnesses. The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it." Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); see United States v. Wajda, 810 F.2d 754, 761 (8th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 1981, 95 L.Ed.2d 821 (1987).

To prove a CCE violation, the government must establish four 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 for whom the defendant "occupies a position of organizer, a supervisory position, or any other position of management," and (4) from which the defendant derives substantial income or resources. 21 U.S.C. Sec. 848(d); Garrett v. United States, 471 U.S. 773, 781, 105 S.Ct. 2407, 2413, 85 L.Ed.2d 764 (1985); United States v. Tarvers, 833 F.2d 1068, 1074 (1st Cir.1987). Possick claims that there was insufficient evidence for the jury to find that he organized, supervised, or managed five or more persons in conducting his drug business. He does not dispute the existence of the other CCE elements.

The basic outlines of the disputed management element have been liberally construed. See United States v. Maull, 806 F.2d 1340, 1343 (8th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1352, 94 L.Ed.2d 522 (1987); United States v. Lewis, 759 F.2d 1316, 1331 (8th Cir.), cert. denied, 474 U.S. 994, 106 S.Ct. 406, 88 L.Ed.2d 357 (1985). The statute is written in disjunctive language, and the government need prove only that the defendant was an organizer, or a supervisor, or held some management role, not all three. United States v. Dickey, 736 F.2d 571, 587 (10th Cir.1984), cert. denied, 469 U.S. 1188, 105 S.Ct. 957, 83 L.Ed.2d 964 (1985); United States v. Phillips, 664 F.2d 971, 1013 (5th Cir.1981), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982). The terms "organizer," "supervisory," and "management" have been given their plain meaning. United States v. Oberski, 734 F.2d 1030, 1032 (5th Cir.1984); United States v. Mannino, 635 F.2d 110, 117 (2d Cir.1980).

A defendant need not be the "king pin" or ultimate authority in the organization, but need only occupy some managerial position, Maull, 806 F.2d at 1343; United States v. Becton, 751 F.2d 250, 255 (8th Cir.1984), cert. denied, 472 U.S. 1018, 105 S.Ct. 3480, 87 L.Ed.2d 615 (1985), or perform a "central role." Lewis, 759 F.2d at 1331. The government need not establish that the defendant managed five people at once, that the five acted in concert with each other, that the defendant exercised the same kind of control over each of the five, or even that the defendant had personal contact with each of the five. See, e.g., Maull, 806 F.2d at 1343; United States v. Jones, 801 F.2d 304, 308 (8th Cir.1986); Becton, 751 F.2d at 254-55. In essence, the management element is established by demonstrating that the defendant exerted some type of influence over another individual as exemplified by that individual's compliance with the defendant's directions, instructions, or terms. See United States v. Grubbs, 829 F.2d 18, 19-20 (8th Cir.1987) (per curiam); United States v. Lueth, 807 F.2d 719, 732 (8th Cir.1986); Jones, 801 F.2d at 310.

As Possick concedes that he managed two former co-defendants (Daniel Byers and Robert Lesmeister), ² we need find only that there was sufficient evidence to support the jury's verdict with regard to three other individuals. We find that there was substantial evidence to support the jury's finding that Possick managed, supervised, or organized Keith Kalemis, Robert Bell, and Marjorie Byers, and we therefore affirm his CCE conviction.

A. Keith Kalemis

The evidence at trial showed that from April to August of 1985, Keith Kalemis acquired cocaine from Possick on terms dictated by Possick. Possick gave the cocaine to Kalemis on consignment, or "fronted" it to him, and instructed him on how to arrange for collection of and payment for the drugs. On one occasion, Possick directed Kalemis to fly to Atlanta to make a $23,000 payment to Byers. Later, Possick instructed Kalemis to wire payment to Florida in Byers's name. On another occasion, Kalemis was instructed to make payment by way of a money order made out to a corporation owned by Byers. Possick also instructed Kalemis how to transact drug sales with one of his customers, although Kalemis did not follow this advice. In addition, Possick and Byers travelled to Kalemis's residence in St. Louis, where they beat him, forced him to ingest orally a large quantity of cocaine, and threatened to kill him if he did not promptly pay the money he owed to Possick. Thereafter, Byers often threatened Kalemis over the phone.

We find these facts ample to support the jury's finding that Possick exerted some type of influence over Kalemis. Although the mere "fronting" of cocaine alone is insufficient to support finding a management relationship, Jones, 801 F.2d at 308; defendants who arrange the acquisition of the drug, its delivery, and set the price and credit terms have been found to fill a " 'sufficiently central role' " to satisfy the requirements of the management element. Grubbs, 829 F.2d at 19-20 (quoting Lewis, 759 F.2d at 1331). See also Lewis, 759 F.2d at 1332 (defendant found to manage an individual who made three trips to purchase cocaine at the defendant's bidding); Becton, 751 F.2d at 253, 255 (defendant found to manage one individual who assisted the defendant in weighing and delivering a truckload of marijuana, and another individual who bought large quantities of marijuana from the defendant and made one large delivery of drugs according to the defendant's instructions); Dickey, 736 F.2d at 587-88 (defendant who set up meetings for drug transactions and dictated the terms of delivery and payment was found to occupy a managerial position).

Possick's relationship with Kalemis is well within the parameters of these cases. Furthermore, the use of force or threats to coerce payment is strong evidence of control. Jones, 801 F.2d at 308-09. Although Kalemis failed to follow Possick's directions in one instance, and apparently purchased cocaine from other drug dealers, this does not refute the evidence that Possick exerted some control over Kalemis. There is nothing in the language of the CCE statute, or the cases...