90 F.3d 861 (4th Cir. 1996), 93-4005, United States v. Tipton

Docket Nº:93-4005 to 93-4007, 93-4009 and 93-4010.
Citation:90 F.3d 861
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Richard TIPTON, a/k/a Whittey, Defendant-Appellant (Two Cases). UNITED STATES of America, Plaintiff-Appellee, v. Cory JOHNSON, a/k/a
Case Date:July 08, 1996
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 861

90 F.3d 861 (4th Cir. 1996)

UNITED STATES of America, Plaintiff-Appellee,

v.

Richard TIPTON, a/k/a Whittey, Defendant-Appellant (Two Cases).

UNITED STATES of America, Plaintiff-Appellee,

v.

Cory JOHNSON, a/k/a "O", a/k/a "CO", Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

James H. ROANE, Jr., a/k/a J.R., Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellant,

v.

Richard TIPTON, a/k/a Whittey; Cory Johnson, a/k/a "O",

a/k/a "CO"; James H. Roane, Jr., a/k/a J.R.,

Defendants-Appellees.

Nos. 93-4005 to 93-4007, 93-4009 and 93-4010.

United States Court of Appeals, Fourth Circuit

July 8, 1996

Argued Dec. 7, 1994.

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ARGUED: Scott Lawrence Nelson, Miller, Cassidy, Larroca & Lewin, Washington, D.C., for Appellant Roane; Eric David White, Morchower, Luxton & Whaley, Richmond, Virginia, for Appellant Tipton; Craig Stover Cooley, Richmond, Virginia, for Appellant Johnson. Robert John Erickson, United States Department Of Justice, Washington, D.C., for Appellee. ON BRIEF: Paul F. Enzinna, Miller, Cassidy, Larroca & Lewin, Washington, D.C.; David Baugh, Richmond, Virginia, for Appellant Roane; Robert P. Geary, Richmond, Virginia, for Appellant Tipton; John F. McGarvey, Richmond, Virginia, for Appellant Johnson. Helen F. Fahey, United States Attorney, United States Department Of Justice, Washington, D.C., for Appellee.

Before WILKINSON, Chief Judge, ERVIN, Circuit Judge, and PHILLIPS, Senior Circuit Judge.

Affirmed in part, vacated and remanded in part by published opinion. Senior Judge PHILLIPS wrote the opinion, in which Chief Judge WILKINSON and Judge ERVIN joined.

OPINION

PHILLIPS, Senior Circuit Judge:

Richard Tipton, Cory Johnson, and James Roane were tried to a jury on a 33-count indictment charging each with a number of federal crimes, including capital murder, growing out of their concerted drug-trafficking activities, principally in Richmond, Virginia during a several-year period. 1 Each was

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convicted on multiple charges, including capital murder; each was sentenced to death on one or more of the capital murder charges on which he was convicted and to various terms of imprisonment on other charges. Each has appealed challenging his conviction on various of the charges against him and the sentence(s) of death imposed upon him. Save for the necessity imposed by double jeopardy concerns to vacate their several convictions for drug conspiracy violations under 21 U.S.C. § 846, we find no error requiring reversal or remand among those assigned by appellants and we therefore affirm their respective convictions and sentences in all other respects.

The Government has cross-appealed the district court's order staying execution of the death sentences pending Congressional authorization of the means of execution. We vacate that order and remand for entry of appropriate orders.

I.

Recounted in summary form and in the light most favorable to the Government, the core evidence revealed the following. Tipton, Roane, and Cory Johnson were principal "partners" in a substantial drug-trafficking conspiracy that lasted from 1989 through July of 1992. The conspiracy's operations began in Trenton, New Jersey where Johnson and Tipton, both from New York City, became members. In August of 1990, the conspiracy expanded its operations to Richmond, Virginia where Roane joined the conspiracy in November of 1991. The Trenton-based operation came to an end on June 4, 1991 when police confiscated a large quantity of crack cocaine and firearms. In late 1991, the conspiracy's operations were expanded from the Central Gardens area of Richmond to a second area in Richmond called Newtowne.

During the period of the conspiracy's operation, its "partners", including appellants, obtained wholesale quantities of powdered cocaine from suppliers in New York City, converted it by "cooking" into crack cocaine, then packaged it, divided it among themselves, and distributed it through a network of 30-40 street level dealers, "workers." Typically, the appellants and their other partners in the conspiracy's operations took two-thirds of the proceeds realized from street-level sales of their product.

Over a short span of time in early 1992, Tipton, Cory Johnson, and Roane were variously implicated in the murders of ten persons within the Richmond area--all in relation to their drug-trafficking operation and either because their victims were suspected of treachery or other misfeasance, or because they were competitors in the drug trade, or because they had personally offended one of the "partners."

On January 4, 1992, Tipton and Roane drove Douglas Talley, an underling in disfavor for mishandling a drug transaction, to the south side of Richmond. Once there, Roane grabbed Talley from the rear while Tipton stabbed him repeatedly. The attack lasted three to five minutes and involved the infliction of eighty-four stab wounds to Talley's head, neck, and upper body that killed him.

On the evening of January 13, 1992, Tipton and Roane went to the apartment of Douglas Moody, a suspected rival in their drug-trafficking area, where Tipton shot Moody twice in the back. After Moody fled by jumping through a window, both Tipton and Roane pursued. Roane, armed with a military-style knife retrieved from an apartment where the knife was kept for co-conspirator Curtis Thorne, caught up with Moody in the front yard of the apartment where he stabbed him eighteen times, killing him.

On the night of January 14, 1992, Roane, Cory Johnson, and a third person retrieved a bag of guns that they had left at an apartment earlier that day. Roane then located Peyton Johnson, another rival drug dealer, at a tavern. Shortly after Roane left the tavern, Cory Johnson entered with another person and fatally shot Peyton Johnson with a semi-automatic weapon.

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On January 29, 1992, Roane pulled his car around the corner of an alley, got out of the vehicle, approached Louis Johnson, whom appellant Johnson thought had threatened him while acting as bodyguard for a rival dealer, and shot him. Cory Johnson and co-conspirator Lance Thomas then got out of Roane's car and began firing at Louis Johnson. As Louis Johnson lay on the ground, either Cory Johnson or Thomas shot him twice at close range. Louis Johnson died from some or all of these gunshot wounds.

On the evening of February 1, 1992, Cory Johnson and Lance Thomas were told that Roane had gone to the apartment of Torrick Brown, with whom Roane had been having trouble. Johnson and Thomas armed themselves with semi-automatic weapons and went to the apartment where they joined appellant Roane outside. The three then knocked on Brown's door and asked his half-sister, Martha McCoy, if Brown was there. She summoned Brown to the door and Cory Johnson, Roane, and Thomas opened fire with semi-automatic weapons, killing Brown and critically wounding McCoy.

In late January, 1992, after being threatened by Cory Johnson for not paying for a supply of crack cocaine, Dorothy Armstrong went to live with her brother, Bobby Long. On February 1, Cory Johnson learned from Jerry Gaiters the location of Long's house. Thereafter, Tipton and an unidentified "young fellow" picked up Gaiters and Cory Johnson who were then driven by Tipton to a house where the group obtained a bag of guns. After dropping off the unidentified third party, the group proceeded to Long's house. Upon arriving at Long's house, Cory Johnson and Gaiters got out of the car and approached the house. While Tipton waited in the car, Cory Johnson and Gaiters went to the front door. When Long opened the door, Cory Johnson opened fire, killing both Dorothy Armstrong and one Anthony Carter. Bobby Long fled out the front door, but was fatally shot by Cory Johnson in the front yard.

In early February 1992, Cory Johnson began to suspect that Linwood Chiles was cooperating with the police. On February 19, 1992, Johnson borrowed Valerie Butler's automobile and arranged to meet with Chiles. That night, Chiles, Curtis Thorne, and sisters Priscilla and Gwen Greene met Cory Johnson and drove off together in Chiles's station wagon. Chiles parked the car in an alley, and Tipton soon drove in behind it in another car, got out, and came up alongside the stationwagon. With Tipton standing by, Cory Johnson told Chiles to place his head on the steering wheel and then shot Chiles twice at close range. Additional shots were fired, killing Thorne and critically wounding both of the Greene sisters. The autopsy report indicated that Thorne had been hit by bullets fired from two different directions.

Tipton was charged under 21 U.S.C. § 848(e) and 18 U.S.C. § 2 with capital murder for eight of these killings (Talley, Moody, Louis Johnson, Long, Carter, Armstrong, Thorne, and Chiles); Cory Johnson, with seven (Louis Johnson, Long, Carter, Armstrong, Thorne, Chiles, and Peyton Johnson); and Roane, with three, (Moody, Louis Johnson, and Peyton Johnson).

The jury convicted Tipton of six of the eight capital murders with which he was charged under § 848(e) (Talley, Armstrong, Long, Carter, Chiles, and Thorne). One of the other two § 848(e) charges was dismissed (Louis Johnson) and the other resulted in acquittal (Moody). Tipton was also convicted of conspiracy to possess cocaine base with the intent to distribute (21 U.S.C. § 846), engaging in a CCE (21 U.S.C. § 848(a)), eight counts of committing acts of violence (the eight killings charged under § 848(e)) in the aid of racketeering activity (18 U.S.C. § 1959), two counts of using a firearm in relation to a crime of violence or a drug-trafficking crime (18 U.S.C. § 924(c)), and two...

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