U.S. v. Lucas
| Decision Date | 26 April 1991 |
| Docket Number | Nos. 90-1197,90-1229,s. 90-1197 |
| Parties | , 32 Fed. R. Evid. Serv. 1081 UNITED STATES of America, Appellee, v. Kim Randolph LUCAS, Appellant. UNITED STATES of America, Appellee, v. Keith TYLER, Appellant. UNITED STATES of America, Appellee, v. Larry TYLER, Appellant. UNITED STATES of America, Appellee, v. Bahiya Hiba SHAKUR, a/k/a Joyce Tyler, Appellant. UNITED STATES of America, Appellee, v. Abdul Nur SHAKUR, a/k/a Herman Tyler, Jr., Appellant. UNITED STATES of America, Appellee, v. Terry L. TYLER, a/k/a Jamal H. Shakur, Appellant. through 90-1231, 90-1445, 90-1866. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Susan Hunt, Kansas City, Mo., for Abdul Shakur.
Robert Best, Jr., Kansas City, Mo., for Larry Tyler.
Charles Atwell, Kansas City, Mo., for Bahiya Shakur.
Chris Harlan, Kansas City, Mo., for Keith Tyler.
Bruce Houdek, Kansas City, Mo., for Kim Lucas.
Claudia York, Kansas City, Mo., for Terry Tyler.
Kathryn Geller, Asst. U.S. Atty., Kansas City, Mo., for appellee.
Before JOHN R. GIBSON and BOWMAN, Circuit Judges, and HANSON, * Senior District Judge.
This is yet another case involving illegal drug activity in Kansas City, Missouri. The appeal is from the judgment of the District Court 1 convicting and its order sentencing defendants Abdul Nur Shakur Bahiya Hiba Shakur, Jamal H. Shakur, 2 Kim Randolph Lucas, Larry Tyler, and Keith Tyler. Jurisdiction is based upon 28 U.S.C. Sec. 1291 (1988) and 18 U.S.C. Sec. 3742 (1988). Defendants were tried by jury on a twenty-one count indictment. The indictment charged the defendants with conspiring to distribute cocaine and cocaine base (crack cocaine) in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (1982) (count I), distributing, and possessing with intent to distribute, crack in violation of 21 U.S.C. Sec. 841(a)(1), (b)(1)(A-C) (1982) and 18 U.S.C. Sec. 2 (1982) (counts II-VII, IX, X, and XIII), using a firearm in relation to drug trafficking, in violation of 18 U.S.C. Secs. 2 and 924(c) (1982 & Supp. V 1987) (counts VIII, XI, XII, and XIV), possession of an unregistered firearm in violation of 26 U.S.C. Secs. 5841, 5861(d), and 5871 (Supp. V 1987) (count XV), possession of a firearm by a felon, in violation of 18 U.S.C. Sec. 922(g)(1) (Supp. V 1987) (count XVI), laundering money in violation of 18 U.S.C. Secs. 2 and 1956(a)(1)(B)(i), (C) (1982 & Supp. V 1987) (counts XVII, XIX, and XXI), and structuring cash transactions in order to avoid reporting requirements, in violation of 31 U.S.C. Secs. 5322(b), 5324(3) (Supp. V 1987), and 18 U.S.C. Sec. 2 (counts XVIII and XX). Abdul Shakur was named in every count in the indictment. His wife Bahiya Shakur was named in counts I, X, XII, XVII through XIX, and XXI. The remaining defendants all were charged in count I, and in addition, Larry and Keith Tyler were charged in count VIII, Jamal Shakur was charged in count XIX, and Kim Lucas was charged in counts XIX and XX.
At the conclusion of the nine-week trial, the jury deliberated for twelve hours and found the defendants guilty on all counts. Judgment was entered accordingly. The trial court sentenced Abdul Shakur to a prison term of seventy-five years, Bahiya Shakur to 211 months, Keith Tyler to 331 months, Larry Tyler to 195 months, Jamal Shakur to 200 months, and Kim Lucas to 262 months. All defendants also were sentenced to terms of supervised release, each was charged a special assessment, and Jamal Shakur was fined. Finally, Abdul Shakur, Keith Tyler, and Larry Tyler were ordered to pay restitution to Edward G. Robinson, who was shot, beaten, and burned during the course of the conspiracy.
On appeal all the defendants challenge their sentences and convictions, raising numerous arguments. Only the following merit discussion: (1) Abdul and Bahiya Shakur argue that their fourth amendment rights were violated by the trial court's refusal to exclude from evidence two tape-recorded conversations; (2) Except for Keith Tyler, all the defendants argue that the trial court violated their right to a public trial by permitting Detective Mary Brown to testify behind a partial screen; (3) Abdul and Bahiya Shakur, Larry Tyler, and Kim Lucas argue that their right to a fair trial was violated by the trial court's refusal to exclude from evidence testimony and records of telephone calls between Kansas City and Miami; (4) Abdul, Bahiya, and Jamal Shakur, and Kim Lucas argue that the trial court erred by refusing to dismiss the money laundering counts for failure to state an offense; (5) Abdul Shakur and Keith and Larry Tyler argue that the trial court improperly instructed the jury on the Pinkerton theory of co-conspirator liability; (6) Keith and Larry Tyler argue that the trial court violated their right to be convicted only upon a unanimous verdict of the jury by submitting count VIII to the jury on the alternative theories of vicarious liability and liability as an aider and abettor; (7) Abdul Shakur challenges his consecutive sentences on counts XI and XII on the grounds that these consecutive sentences violate his right to be free from double jeopardy; (8) Bahiya Shakur argues there is insufficient evidence to support her conviction on the firearm charge in count XII; and (9) Abdul Shakur challenges his sentences on counts II, III, IV, and XIII as having been enhanced without the notice required by 21 U.S.C. Sec. 851 (1982). For the reasons that follow, we affirm on all grounds with the exception of Abdul Shakur's sentences on counts II, III, IV, and XIII. We vacate those sentences and remand for resentencing on those counts. 3
In the early part of 1988 the government, suspecting that Abdul Shakur was involved in narcotics trafficking, began investigating his activities. 4 The investigation focused initially upon the gathering of documents related to Shakur's financial and business transactions. It then was discovered that Shakur owned a shoe shine parlor at 4448 Troost, and that early in 1987 that same location became the address for Squire Park General Contractors (Squire Park), a company formed by Abdul Shakur and Charles Gates. 5 It also was discovered that Abdul Shakur and his wife Bahiya previously had formed an investment corporation called Business People, Inc., which early in 1987 purchased a $60,000 parcel of land at 1330 Brush Creek. The Shakurs' payments for this land consisted of a $5,000 down payment and, later, a $55,000 lump sum payment composed of fourteen cashiers checks, purchased in cash or drawn against accounts opened with cash, from seven different banks. 6 In addition, the investigators found that the majority of Squire Park's business consisted of the construction of a shopping mall, called the Manheim Project, at the 1330 Brush Creek location. 7 The investigation revealed that Squire Park's expenditures on this project exceeded by a wide margin the amount of Squire Park's legitimate revenues.
In July 1988, Dwight Ward contacted the Kansas City, Missouri Police Department, stating that he had information concerning Abdul Shakur's involvement in narcotics distribution. He told the police that he had worked for Shakur at the shoe shine parlor until May 1987, at which time he began working for Squire Park; that every Friday until May 1987 he purchased crack from Shakur at a house at 4111 East 26th Street; that after he began working for Squire Park he received two "rocks" of crack as part of his pay each week; that Abdul Shakur later moved his drug operation to an apartment located at 1301 East Armour; and that Kim Lucas and Jamal Shakur were present at both the 26th Street house and the East Armour apartment during narcotics sales. Ward also assisted the police by introducing undercover officer Don Birdwell to Abdul Shakur, which ultimately resulted in the officer's making five purchases of crack from Abdul Shakur. During all five of these transactions the conversations between Birdwell and Abdul Shakur were recorded. 8
Armed with the foregoing information, the government obtained warrants to search both of the residences in which the drug sales occurred (4111 East 26th Street and 1301 East Armour), Abdul Shakur's personal residence (1217 East Armour), and the office of Squire Park (4448 Troost). These warrants were executed simultaneously on September 21, 1988.
The search of the residences at 4111 East 26th Street and 1301 East Armour disclosed crack as well as numerous documents and receipts bearing the names of Abdul Shakur, Keith Tyler, and Jamal Shakur. In addition, a firearm was discovered at the 1301 East Armour apartment. The search of the Shakur residence led to the discovery of over $25,000 in cash, a crack laboratory in the basement, over 700 grams of crack, over 30 grams of cocaine, records of drug sales, an automatic pistol and thirteen other firearms, utility and cable bills for the East 26th Street and 1301 East Armour drug houses, and a telephone answering machine tape with approximately 45 calls recorded upon it. Finally, the search of the Squire Park offices revealed numerous documents and records the government found useful in presenting its case.
On October 24, 1988, a federal grand jury returned the aforementioned indictment, and the defendants' trial began April 3, 1989. At trial the government produced, inter alia, evidence establishing the facts previously described. From the answering machine tape the court admitted, over objection, two conversations between Abdul and Bahiya Shakur relating to the operation of the charged drug conspiracy. The court also admitted, over objection, evidence of telephone conversations between the Shakurs' residence and a number in Miami, between the two drug houses and the same number in Miami, and between the office of Squire Park and the same...
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