U.S. v. Delpit, s. 95-2539
| Citation | 94 F.3d 1134 |
| Decision Date | 28 August 1996 |
| Docket Number | Nos. 95-2539,95-2655,s. 95-2539 |
| Parties | UNITED STATES of America, Appellee, v. Calvin Lucien DELPIT, also known as Monster, Appellant. UNITED STATES of America, Appellee, v. Dennell MALONE, Appellant. UNITED STATES of America, Appellee, v. Jermaine Dana SAUNDERS, Appellant. UNITED STATES of America, Appellee, v. Zackarrie Emil PRADO, Appellant. UNITED STATES of America, Appellee, v. Lavern THOMAS, Appellant. UNITED STATES of America, Appellee, v. Jai Anthony JONES, Appellant. UNITED STATES of America, Appellee, v. Chanise Janelle LYNN, Appellant. to 95-2659 and 96-1316. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Faison T. Sessoms, argued, Minneapolis, for appellant Calvin Delpit.
John R. Wylde, argued, Minneapolis, MN, for appellant Dennell Malone.
David DeSmidt, argued, Minneapolis, MN, for appellant Jermaine Saunders.
Kevin J. Short, argued, Minneapolis, MN, for appellant Zackarrie Prado.
Earl P. Gray, argued (Marsh J. Halberg, on the brief), St. Paul, MN, for appellant Lavern Thomas.
Charles Lee Hawkins, argued, Minneapolis, MN, for appellant Jai Jones.
Virginia Guadalupe Villa, argued, Minneapolis, MN, for appellant Chanise Lynn.
Jefferey S. Paulsen, Minneapolis, MN (David L. Lillehaug, on the brief), argued, for appellee.
Before RICHARD S. ARNOLD, Chief Judge, MAGILL, Circuit Judge, and VAN SICKLE, * District Judge.
A jury convicted the seven defendants of various crimes, including interstate murder-for-hire, 18 U.S.C. § 1958(a), arising out of a Twin Cities-based drug conspiracy and gang rivalry. They received prison sentences ranging from 97 months to life. The defendants challenge their trial, convictions, and sentences. We reject most of these challenges. We agree, however, with Chanise Lynn and Zackarrie Prado that their interstate murder-for-hire convictions must be reversed. They may well have taken part in a murder plot, but the government did not prove they violated federal law. Finally, we remand Saunders's case for resentencing because the murder-for-hire plot of which he was a leader or organizer did not involve five or more "participants." U.S.S.G. § 3B1.1(a).
The jury found that the defendants all participated in the drug-dealing and strong-arm tactics of a Twin Cities gang called the Shotgun Crips. Dennell Malone and Jermaine Saunders were the ringleaders of the operation. They imported cocaine from California, for re-sale in Minnesota, through their source, Kenneth Washington (who apparently remains a fugitive). The operation included couriers who smuggled procaine (a cutting agent used to make crack) from California to Minnesota; underlings who helped convert cocaine powder into crack; and middle-men who bought crack from the operation and sold it to others. And in August 1994, the operation employed the services of Calvin "Monster" Delpit, a Los Angeles-based hitman, to intimidate a rival gang and competitor in the Twin Cities drug market.
We describe the evidence against the individual defendants in more detail below. For now, we will simply summarize the case against the Malone/Saunders operation. The case grew out of an investigation into the Los Angeles Shotgun Crips' Minnesota outreach efforts. Beginning in May 1994, government agents began wiretapping telephones used by Larry Thomas, and they intercepted coded conversations about drug-dealing. These conversations led the agents to one of Thomas's customers, Tim Nelson, who agreed to cooperate with the investigation.
Thomas's drug source, the wiretaps revealed, was the Malone/Saunders operation, and Thomas owed the operation a large sum of money. On June 7, the police observed as Thomas passed a paper bag to Malone and Saunders during a pre-arranged money drop. That night, Malone and Saunders told Thomas he hadn't paid all the money he owed. Malone also tried to sell Thomas a cellular phone, which, he suggested, would help them avoid wiretaps. Thomas continued to negotiate with Washington and Malone to purchase more drugs, but because Thomas was so far behind in his payments, they cut him off. Thomas continued his relation with the operation, though, until mid-July, when he caught on that they were being investigated.
Malone and Saunders, however, did not quit their drug-dealing activities. That same June, Malone was using three juveniles, including his younger brothers, to sell drugs for him. 1 And in August, the government intercepted phone calls between Saunders and Washington concerning a 15.6 kilogram cocaine shipment that had been intercepted in Utah. The calls revealed how Malone had set up the shipment and recruited the failed courier. The calls also suggested that at least one other significant drug shipment had made it through to Minnesota.
That same August, the government learned that Malone and Saunders had hired Calvin Delpit, an L.A. hitman, to come to Minnesota and kill members--no one in particular, apparently--of the Shotgun Crips' rival gang, the Vice Lords. On August 26, Saunders suggested that a local maternity ward would be a good place to catch one prospective victim (a new father) unaware. Malone and Saunders then arranged for guns and a driver for Delpit so he could "put some work on somebody." Chanise Lynn drove Delpit around that night, and the next, but they couldn't find anyone to kill. Delpit called Saunders to tell him that he and Lynn had found some potential victims, but the victims had seen him creeping up to do the hit and had escaped. Saunders urged Delpit to keep trying, and agreed to send a partial payment of $1,500 to Delpit's wife in California. Saunders then outlined a new plan: Delpit would follow a lead car which would flash its brake lights to indicate vulnerable Vice Lords nearby. The police overheard Saunders's plan and responded with round-the-clock surveillance on Delpit.
The next day, August 28, Prado called Saunders to complain that he'd seen Vice Lords driving by his mother's house. Saunders told Prado he'd better kill the Vice Lords before they got him first. Prado suggested they could ambush the Vice Lords that afternoon at a concert in downtown Minneapolis, and Saunders put Prado in touch with Delpit. A little later, Prado picked up Delpit, and then Malone. The group then split up into two cars, with Prado and Malone in the lead and Delpit following by himself. The police, concerned that the drive-by plan was about to go off, stopped the cars. Delpit tried to escape. He pulled his gun, pointed it at an officer, then threw the gun away, and ran off. He was captured, and his gun was recovered. A second gun was found in his car. Malone and Prado were released because they were unarmed. Later, the police overheard phone conversations confirming that Prado, Malone, and Delpit had been planning to do a drive-by shooting when they were apprehended.
Meanwhile, the operation's drug activities continued. A few days later, Saunders sent Chanise Lynn to California to pick up some procaine. Saunders asked Jai Jones, who was in Los Angeles, to help Lynn get the procaine, and to accompany her back to Minnesota. Jones and Lynn arrived back in Minnesota with two black bags. Prado met them at the airport, dropped Lynn off at her house, and then he and Jones delivered the procaine to Malone and Saunders. While the police were getting a warrant to search the house where Malone and Saunders had divided up the procaine and were getting ready to "cook" the crack, people started leaving the house. The police stopped Jones and Prado, and found seven pounds of procaine in their car. Malone and another left next, and the police found seven more pounds of procaine, a scale, a clone cellular phone, and almost $5,000 in cash in the car. Finally, Saunders and two others left. The police tried to stop them and, during a high-speed chase, Saunders threw two guns and a backpack out of the car. The police eventually caught the car, arrested Saunders, and found the guns (both loaded). They also found three more pounds of procaine and a scale in the car. The next day, someone turned the backpack over to the police. It contained another clone cellular phone, 1.5 kilograms of powder cocaine, wrapped in a special fashion, just like the cocaine shipment that had been intercepted in Utah.
The government brought a fifteen-count indictment against the defendants. All but Delpit were included in Count 7, which alleged a conspiracy to distribute crack cocaine. 21 U.S.C. § 846. Delpit, Malone, Saunders, Lynn, and Prado were charged with interstate travel with the intent to commit murder-for-hire, 18 U.S.C. § 1958(a), and conspiracy to violate § 1958(a). The rest of the counts charged different defendants with various drugs-, fraud-, and weapons-related crimes. 2 All the appellants but Prado were convicted on all counts against them; the jury acquitted Prado on the drug-conspiracy charge (Count 7). Malone and Saunders received life sentences; Delpit, 19 years; Thomas, 15 years and three months; Jones, nine years and four months; Lynn, nine years; and Prado, eight years and one month.
This is a complicated case. Many of the defendants' claims overlap with others'; some arguments are raised by only one or a few. We think this opinion will be easier to follow if organized by shared claims and arguments instead of by the individual defendants bringing them.
Six of the seven defendants--all but Delpit--insist that the District Court should not have joined their cases with the others' and should have granted their motions to sever. The District Court found that because "the conspiracies alleged are interconnected and encompass each of the individual substantive counts, joinder of the defendants and counts is proper." 3 We will reverse the District Court's denial of the severance motions only if it abused its discretion, resulting in definite prejudice. United States v. Darden, 70 F.3d 1507, 1526...
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