U.S. v. Elder
| Decision Date | 24 July 1996 |
| Docket Number | 94-5395,94-5391,94-5332,94-5309,Nos. 94-5307,94-5310,94-5393,94-5331,94-5397,s. 94-5307 |
| Citation | 90 F.3d 1110 |
| Parties | , 45 Fed. R. Evid. Serv. 113 UNITED STATES of America, Plaintiff-Appellee, v. Angela ELDER (94-5307); Douglas Jones (94-5309); David L. Jackson, Jr. (94-5310); David L. Jackson, Sr. (94-5331); Mark A. Andrews (94-5332); Ray Fletcher (94-5391); Thomas J. Elder (94-5393); Bernard Leon Kelly (94-5395); Ross Grimes (94-5397), Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Michael E. Winck, Asst. U.S. Atty. (briefed in Nos. 94-5307, 94-5309 and 94-5331) (argued and briefed in Nos. 94-5310, 94-5332, 94-5391, 94-5393, 94-5395 and 94-5397), Office of the U.S. Atty., Knoxville, TN, for U.S.
Tommy K. Hindman (briefed), Knoxville, TN, for Angela C. Elder in No. 94-5307.
Gordon Ball (briefed), Knoxville, TN, for Douglas Lamont Jones in No. 94-5309.
James A.H. Bell (argued and briefed), Law Offices of James A.H. Bell, Knoxville, TN, for David Lawrence Jackson, Jr. in No. 94-5310.
Mark E. Silvey (briefed), Knoxville, TN, for David Lawrence Jackson, Sr. in No. 94-5331.
John E. Eldridge (argued and briefed), Ray, Farmer, Eldridge & Hickman, Knoxville, TN, for Mark Anthony Andrews in No. 94-5332.
Gloria S. Moore (argued and briefed), Moore & Clark, Knoxville, TN, for Raymond Fletcher in No. 94-5391.
James H. Varner, Jr. (argued and briefed), Eshbaugh, Simpson & Varner, Knoxville, TN, for Thomas Jerome Elder in No. 94-5393.
William L. Brown (argued and briefed), Knoxville, TN, for Bernard Leon Kelly in No. 94-5395.
Charles A. Thomas (argued and briefed), Knoxville, TN, for Ross Grimes in No. 94-5397.
Before: CONTIE, NELSON, and COLE, Circuit Judges.
Defendants appeal their jury convictions and sentences for conspiracy to distribute cocaine, money laundering, engaging in a continuing criminal enterprise, and various substantive offenses involved in the conspiracy. For the following reasons, we affirm the judgment of the district court.
This case involves the Florida Boys gang, which developed distribution systems for selling cocaine in Knoxville, Tennessee. On March 3, 1993, a federal grand jury in the Eastern District of Tennessee returned a 126-count indictment charging defendants with conspiracy to distribute cocaine from the fall of 1986 until March 1993, and with various related offenses including distributing cocaine, conducting a continuing criminal enterprise, using a telephone to facilitate the distribution of cocaine, possession of a pipe bomb, and money laundering. Originally 18 defendants were charged, but several defendants and several unindicted coconspirators became cooperating witnesses for the United States. 1
According to the trial testimony of the cooperating witnesses, defendant Jones, the leader of the gang, obtained cocaine in Florida, stored the drugs in a stash house there, and then had the cocaine transported to Knoxville, Tennessee in rented trucks, usually concealed in a spare tire. The cocaine was taken to one of defendant Jones' friends' apartments or other apartments rented by the Florida Boys gang. 2 The gang then divided the cocaine among various lieutenants in the organization, who were responsible for its distribution, mainly at two housing projects in Knoxville--College Homes and Austin Homes.
Unindicted coconspirator Anthony Kelly, who was based in Boynton Beach, Florida, testified that beginning in 1987, he began fronting drugs to defendant Jones, who then transported the cocaine to Knoxville, Tennessee, sold the cocaine, and then paid Kelly between $25,000-$35,000 per kilogram for the amounts he had been fronted. After Kelly was arrested in 1989, Jones continued to obtain drugs from Florida from other sources.
Defendant Jones had a second source for the cocaine sold by his "boys" in Knoxville, which came from Macon, Georgia. Jesse Anthony, an unindicted coconspirator, testified at trial that he traveled to Tennessee from Georgia in the fall of 1986 to give out free cocaine samples in order to establish a market in Knoxville. Under the direction of Jones, he set up shop at College Homes and oversaw selling drugs there. He testified that there was a shoot-out at College Homes between one of the "Florida Boys," James Brown, and Brian Ross, a member of a rival drug gang, who was killed. Jesse Anthony testified that after this shoot-out, he returned to Macon, Georgia and no longer distributed drugs in Knoxville for Jones. Anthony testified that after he left, defendant Grimes was the one who organized the drug sales at College Homes.
Codefendant Anthony Hamilton testified that he knew Jesse Anthony and helped him distribute the free samples that began the drug trade at College Homes. He also testified that defendant Grimes helped sell cocaine there and that after coconspirator Jesse Anthony's return to Georgia, Grimes became responsible for directing the sale of cocaine at College Homes. Anthony Hamilton was arrested by the police for selling cocaine at College Homes in June 1988, before the other coconspirators were indicted. After his arrest, most cocaine was sold from Austin Homes rather than College Homes.
Various officers of the Knoxville Police Department started looking into the Florida Boys organization in the fall of 1991 and testified at trial about their investigation. Various narcotics agents of the DEA testified about their surveillance of Jones and his gang in Florida and in Knoxville and about telephone conversations which had been tape-recorded after wiretaps were ordered. Various undercover agents, including Mark Poag, Deborah Allen, and Charles Beneby, testified about drug purchases they set up with members of the gang.
After the jury trial, which began on October 4, 1993, and concluded on November 23, 1993, the defendants who are bringing this appeal were convicted as follows: 3 Thomas Elder was convicted of the continuing criminal enterprise charge in count 124 and the cocaine distribution charges in counts 125 and 126. Angela Elder was convicted of the conspiracy charge in count 2 and the money laundering offenses of counts 36, 37, 68 and 69. Defendant David Jackson, Jr. was convicted of the conspiracy charge in count 2, as were defendants Bernard Kelly, Ross Grimes, Ray Fletcher, and David Jackson, Sr. Defendant Mark Andrews was convicted of the conspiracy charge in count 2, for using a telephone to facilitate the distribution of cocaine in counts 7 and 9, the cocaine distribution charges of counts 8, 12 and 16, possession of a pipe bomb in count 18, and money laundering as charged in counts 118-122. Defendant Douglas Jones was convicted of the following: engaging in a continuing criminal enterprise in count 1; conspiracy in count 2; the distribution of cocaine in counts 12 and 16; using a telephone to facilitate the distribution of cocaine in counts 13 and 15; and the money laundering offenses charged in counts 28-123. The jury ordered the forfeiture of Jones' property as described in counts 1, 12 and 16. 4
Defendants filed timely notices of appeal.
Pursuant to Fed.R.App.P. 28(i), defendants-appellants moved to adopt the issues, arguments and authorities advanced by their co-appellants in this cause. Rule 28 provides in pertinent part: "In cases involving more than one appellant or appellee, ... any appellant or appellee may adopt by reference any part of the brief of another." We agree with the prevailing case law that notwithstanding the permissive generalities in which the Rule is couched, there are definite limits on the ability of parties to adopt each other's appellate arguments by reference pursuant to Rule 28(i). One such limit is that the arguments adopted must be readily transferable from the proponent's case to the adopter's case. United States v. David, 940 F.2d 722, 737 (1st Cir.), cert. denied, 502 U.S. 989, 112 S.Ct. 605, 116 L.Ed.2d 628 (1991). As the court in United States v. Harris, 932 F.2d 1529 (5th Cir.), cert. denied, 502 U.S. 897, 112 S.Ct. 270, 116 L.Ed.2d 223 (1991) indicated, adoption pursuant to Rule 28(i) is permitted in the interest of judicial efficiency when the arguments to be adopted are equally applicable to the adopting co-appellants; however, when one appellant raises fact-specific issues, a motion to adopt that appellant's argument, without more, is insufficient to raise that point of error as to the adopting co-appellant. Id. at 1533. See also United States v. Bennett, 75 F.3d 40, 49 (1st Cir.1996) (); United States v. Stouffer, 986 F.2d 916, 921 n. 4 (5th Cir.) (when a defendant seeks to adopt by reference an issue raised by his codefendant pursuant to Rule 28(i) and the issue is fact-specific, the court will consider the merits of that issue only as to the party raising it), cert. denied, 510 U.S. 837, 114 S.Ct. 115, 126 L.Ed.2d 80 (1993); United States v. Isabel, 945 F.2d 1193, 1200 (1st Cir.1991) (); United States v. Swingler, 758 F.2d 477, 493 (10th Cir.1985) ().
For these reasons, we hold that in the present case, in regard to the fact-specific issues in which the adopter's evidence is materially different from that of the proponent, the adopter's attempt to incorporate by reference the proponent's arguments pursuant to Rule 28(i) does not adequately develop or preserve the issue with respect to his or her own appeal. As the...
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