U.S. v. Nelson

Decision Date18 December 1990
Docket NumberNo. 90-3121,90-3121
Citation922 F.2d 311
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Michael NELSON, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Ronald B. Bakeman, Asst. U.S. Atty. (argued), Cleveland, Ohio, for plaintiff-appellee.

Alan C. Rossman (argued), Cleveland, Ohio, for defendant-appellant.

Before KEITH and BOGGS, Circuit Judges; and CONTIE, Senior Circuit Judge.

CONTIE, Senior Circuit Judge.

Defendant-appellant Michael Nelson appeals his multiple-count cocaine-trafficking conviction and sentence. For the following reasons, we affirm Nelson's conviction and sentence.

I.

On September 20, 1988, defendant-appellant Michael Nelson ("Nelson") was named in seven counts of an eleven-count superceding indictment. Stephen Nelson, Demetrious Nelson, Curtis Davis, Joseph Parker, "Teno," and "J.R." were also named in the superceding indictment. Count I of the superceding indictment charged the seven defendants with "unlawfully, willfully, knowingly, and intentionally" conspiring to "distribute a mixture or substance containing a detectable amount of cocaine and to possess cocaine with the intent to distribute said substance" within 1000 feet of a school from January, 1988 until July 20, 1988 in violation of 21 U.S.C. Secs. 841(a)(1) and 845a. The first count of the indictment further charged that "[i]t was the objective of said conspiracy for Michael Nelson to obtain bulk quantities of cocaine from sources outside the State of Ohio, and to manage and supervise the distribution of said cocaine once brought into the Cleveland, Ohio, area."

The superceding indictment alleged twenty-one overt acts committed in furtherance of the conspiracy (nine directly implicating Nelson):

1. On May 2, 1988, Michael Nelson met Mack Brown (who at all times referred to herein, was acting in an undercover capacity) at Vices [Nightclub] and discussed arrangements to deliver a half ( 1/2) ounce of cocaine.

2. On May 4, 1988, Michael Nelson and Mack Brown used the telephone to discuss the delivery of one-half ( 1/2) ounce of cocaine.

3. Subsequently, and still on May 4, 1988, Michael Nelson, Curtis Davis and Bernard [last name unknown] arrived at 55th and Cedar, Cleveland, Ohio, and met with Mack Brown. Mack Brown paid Michael Nelson $620.00 for one-half ( 1/2) ounce of cocaine. Following the receipt of said $620.00, Michael Nelson instructed Mack Brown to go to Vices and to wait for the delivery of cocaine.

5. On May 6, 1988, Michael Nelson met Mack Brown at Vices where Nelson received $1,200 from Mack Brown for one (1) ounce of cocaine. Following receipt of the $1,200, Michael Nelson instructed Mack Brown to wait in his vehicle in front of Vices for delivery of the cocaine.

7. On May 10, 1988, Michael Nelson met Mack Brown inside Vices and agreed that Mack Brown would pay Nelson $2,300 for two (2) ounces of cocaine. Pursuant to instructions from Michael Nelson and while inside Vices, Brown gave the $2,300 to Curtis Davis.

9. On May 31, 1988, pursuant to instruction from Michael Nelson, Mack Brown went to Vices where he handed Nelson $5,000, the previously agreed upon price for five (5) ounces of cocaine.

19. On July 20, 1988, Mack Brown met Michael Nelson inside Vices to discuss the sale of kilogram quantities of cocaine by Michael Nelson to Mack Brown. Michael Nelson searched Brown, shortly after Brown's arrival at Vices, to determine whether Brown was wearing a transmitter.

20. Subsequently, and still on July 20, 1988, Michael Nelson agreed to distribute one and one-half (1 1/2) kilograms of cocaine to Mack Brown for $40,000 on the condition that Brown pay for the cocaine prior to its delivery.

21. Finally, and still on July 20, 1988, Michael Nelson met with a Special Agent of the Federal Bureau of Investigation who, unknown to Nelson, was acting in an undercover capacity, and in an effort to encourage the Special Agent to advance the $40,000 for the 1 1/2 kilograms of cocaine, Michael Nelson stated that he was one of the hottest dope dealers in Cleveland, Ohio.

September 20, 1988 Superceding Indictment at 3-6.

Count II of the superceding indictment charged the appellant and Demetrious Nelson with distributing approximately fourteen (14) grams of cocaine "within 1,000 feet of the real property comprising a public secondary school" (East High School) on May 4, 1988, in violation of 21 U.S.C. Secs. 841(a)(1) and 845a, and 18 U.S.C. Sec. 2. Count III charged the appellant and "Teno" (last name unknown) with distributing twenty-eight (28) grams of cocaine "within 1,000 feet of the real property comprising a public secondary school" on May 6, 1988, in violation of 21 U.S.C. Secs. 841(a)(1) and 845a, and 18 U.S.C. Sec. 2.

Count IV of the superceding indictment charged the appellant, Curtis Davis and Demetrious Nelson with distributing fifty-six (56) grams of cocaine "within 1,000 feet of the real property comprising a public secondary school" on May 10, 1988, in violation of 21 U.S.C. Secs. 841(a)(1) and 845a, and 18 U.S.C. Sec. 2. Count V charged the appellant and Demetrious Nelson with distributing one hundred forty (140) grams of cocaine "within 1,000 feet of the real property comprising a public secondary school" on May 31, 1988, in violation of 21 U.S.C. Secs. 841(a)(1) and 845a, and 18 U.S.C. Sec. 2.

Count VI charged the appellant, Stephen Nelson and Joseph Parker with distributing fifty-six (56) grams of cocaine "within 1,000 feet of the real property comprising a public secondary school" on June 17, 1988, in violation of 21 U.S.C. Secs. 841(a)(1) and 845a, and 18 U.S.C. Sec. 2. Count VIII charged Nelson with "knowingly and intentionally" using a communication facility (a telephone) "to facilitate acts constituting a felony under Sections 846 and 841(a)(1) of Title 21, United States Code" on May 4, 1988, in violation of 21 U.S.C. Sec. 843(b).

Co-conspirator Davis testified for the government at Nelson's jury trial which commenced on August 29, 1989. Davis testified that he first started working for the appellant at the appellant's nightclub (Vices) in the fall of 1987. Davis testified that he observed "Teno" and "J.R." approach cars (and conduct what Davis believed to be drug sales) on the street in front of Vices in the fall and early winter of 1987. Davis further revealed that in December, 1987, he personally observed numerous bags of cocaine (and scales) located in a building owned by Nelson.

Davis testified that Nelson summoned the co-conspirators together in the spring of 1988 to discuss the distribution of cocaine. After assigning each co-conspirator a role in the cocaine distribution, Nelson discussed his plan to obtain cocaine through California contacts, adding that the cocaine would be kept out of Vices to avoid the government's seizure of the nightclub. After testifying that it was common knowledge that Nelson organized and managed the distribution of cocaine ("Well, it was, you know, just the way things--the day-to-day operation, everybody knew exactly that he was in charge of everything."), Davis revealed that Nelson had flown to California on two occasions to purchase undetermined quantities of cocaine that were brought back to Cleveland by a "mule" known only as "Karen."

Nelson's friend, Mack Brown, agreed to cooperate with the government (by making controlled purchases of cocaine from Nelson) in the spring of 1988. Each of Brown's controlled cocaine purchases was recorded and played for the jury. After engaging in a monitored telephone conversation on May 4, 1988 (Count VIII), Nelson agreed to sell Brown one-half ounce of cocaine, and instructed Brown to meet him at East 55th and Cedar Road in Cleveland. Nelson and Davis met the informant, Brown, at the specified location. After accepting Brown's money, Nelson instructed Brown to drive to Vices' parking lot to obtain the cocaine from Nelson's brother, Demetrious. The cocaine weighed 12.36 grams.

On May 6, 1988, Brown telephoned Nelson to arrange for the purchase of an ounce of cocaine. Nelson instructed the informant to drive to Vices. Brown paid Nelson $1,200 for the ounce of cocaine after arriving at Vices. Brown then returned to his automobile and waited until "Teno" walked by and threw the cocaine inside the car. The cocaine weighed 13.15 grams.

On May 10, 1988, Brown again drove to Vices after ordering two additional ounces of cocaine from Nelson. After paying Nelson $2,000, Demetrious Nelson handed Brown 55.70 grams of cocaine. Similarly, on May 31, 1988, Brown paid Nelson $5,000 for five ounces of cocaine and waited in his car in front of Vices until "J.R." delivered 133.71 grams of cocaine.

Nelson's district court jury trial commenced on August 29, 1989. On September 6, 1989, the jury found Nelson guilty of: conspiracy to distribute cocaine within 1000 feet of a school (Count I); four counts of cocaine distribution within 1000 feet of a school (Counts II, III, IV and V); and using a telephone to facilitate the distribution of cocaine (Count VIII).

Following a January 12, 1990 sentencing hearing, the district court judge issued his "Memorandum of Opinion on Sentencing and Statement of Reasons" on February 27, 1990, which set forth the judge's findings:

1. Curtis Davis was a credible witness and his testimony persuasive.

2. The amount of cocaine involved in the conspiracy in Count I of the indictment is between five hundred grams (500g) and two kilograms (2Kg), which corresponds to a Base Offense Level of 26 under United States Sentencing Commission, Guidelines Manual, Secs. 2D1.1(a)(3) and 2D1.4(a) (Nov.1989).

3. The jury found Nelson guilty of committing the instant offenses within one thousand (1000) feet of a school; accordingly, the Base Offense Level is increased by two (2) levels pursuant to U.S.S.G. Sec. 2D1.2(a)(1).

4. Nelson organized and acted as leader of the conspiracy, and the conspiracy included at least five (5) persons; accordingly under U.S.S.G....

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