992 F.2d 573 (6th Cir. 1993), 91-1852, United States v. Medina

Docket Nº:Anthony MEDINA (91-1852); Nathaniel Wilson (91-1869);
Citation:992 F.2d 573
Party Name:UNITED STATES of America, Plaintiff-Appellee, v.
Case Date:April 12, 1993
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 573

992 F.2d 573 (6th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,

v.

Anthony MEDINA (91-1852); Nathaniel Wilson (91-1869);

Neville King (91-1891/1892), Defendants-Appellants.

Nos. 91-1852, 91-1869, 91-1891 and 91-1892.

United States Court of Appeals, Sixth Circuit

April 12, 1993

Argued Jan. 26, 1993.

Rehearing and Rehearing En Banc

Denied July 27, 1993.

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F. William Soisson (argued and briefed), Office of the U.S. Atty., Detroit, MI, for U.S.

Scott S. Furstman (argued and briefed), Santa Monica, CA, for Anthony Medina.

Kenneth R. Sasse (argued and briefed), Bellanca, Beattie & De Lisle, Detroit, MI, for Nathaniel Wilson.

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Christopher A. Andreoff (argued and briefed), Evans & Luptak, Detroit, MI, for Neville King.

Before: MERRITT, Chief Judge; and KENNEDY and GUY, Circuit Judges.

RALPH B. GUY, JR., Circuit Judge.

Defendants, Anthony Medina, Neville King, and Nathaniel Wilson, appeal their jury convictions and sentences for conspiracy to distribute and distribution of cocaine, unlawful use of a communication facility, and use of a firearm to facilitate drug trafficking. The defendants assert that their right to a fair trial was denied by decisions of the trial court which resulted in (1) restrictions on access to witnesses as well as restrictions on the cross-examination of witnesses, (2) denial of a continuance, (3) the government's refusal to turn over Jencks Act material, (4) introduction of certain evidence, and (5) failure to immunize potential defense witnesses. King and Medina further contend that they were improperly tried on the distribution counts because the trial court lacked venue. King also challenges the trial court's denial of his motion for severance, and Medina argues that the Double Jeopardy Clause prohibits his prosecution for conspiracy and for use of a communication facility to facilitate a drug trafficking offense because of an earlier federal conviction. Finally, all defendants challenge the sentences imposed by the trial judge. We affirm the convictions, but remand for resentencing of defendants King and Wilson.

I.

On July 17, 1990, Medina, King, Wilson, and six others were charged in a 24-count indictment with various violations of federal law which centered around a conspiracy which allegedly existed from the beginning of 1984 until June 17, 1990. After a trial lasting almost two months, Medina, King, and Wilson were found guilty of one count of conspiracy in violation of 21 U.S.C. § 846 and one count of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841. King and Medina were found guilty of another count of possession with intent to distribute cocaine. In addition, Medina was found guilty on five counts of the unlawful use of a communication facility to facilitate drug trafficking in violation of 21 U.S.C. § 843, and Wilson was found guilty of one count of using a firearm to facilitate drug trafficking in violation of 18 U.S.C. § 924(c). All three defendants received sentences of at least 30 years in prison.

The evidence produced at trial established that as early as 1983 Edward Hanserd, a codefendant who earlier pled guilty to various charges, and his associates were distributing cocaine and other controlled substances in the Detroit area. During his plea proceeding, Hanserd admitted that between 1984 and 1989 he had been involved in the distribution of kilogram quantities of cocaine. Those associated with Hanserd's Detroit drug trafficking operation included Fred and June Jackson, Nathaniel Wilson, Paris Pettiford, and John Greene. Medina and King, both of California, began to supply cocaine to this organization by 1987.

Fred and June Jackson, Pettiford, Greene, and Kenneth Echavarria, one of Medina's employees, all testified for the government at trial. According to Echavarria, Hanserd had been in contact with Medina and King in 1987 regarding the supplying of cocaine. Meanwhile, the Jacksons were sent to California in late 1987 by Wilson to purchase cocaine. When the Jacksons were unsuccessful in purchasing cocaine from their regular source, they notified Wilson. He instructed them to contact Hanserd, who was in California. Hanserd introduced Fred Jackson to Medina, and the Jacksons ultimately purchased numerous kilograms of cocaine which were supplied by King. Then, in early 1988, the Jacksons again went to California to purchase cocaine from King and Medina with money supplied by Wilson.

Later, in January 1988, Hanserd purchased a multi-kilo quantity of cocaine from Medina and King, and Hanserd, Echavarria, Medina, and another person shipped it from California back to Detroit. Once there, the cocaine was turned over to Wilson. In March of 1988, Hanserd purchased an additional 47 kilograms of cocaine from Medina and paid him $647,000. Hanserd transported the cocaine from California to Detroit, and

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later sold 31 of the 47 kilograms of cocaine to Wilson. Also in 1988, Echavarria, acting at the behest of Medina, twice delivered a half kilogram of heroin to Hanserd. One of the deliveries of heroin was transported by Echavarria in a red Masarati. The car was later seized from Wilson. Essentially, however, this was a cocaine, not a heroin, distribution network. Indeed, on June 12, 1990, Medina was arrested after attempting to sell three kilograms of cocaine to California law enforcement officers and Paris Pettiford, who by then had become a government informant. In all, according to the government, Hanserd and the people that worked for him distributed approximately a kilogram of cocaine per day over at least a two-year period.

The government also introduced evidence that the coconspirators often possessed large quantities of cash. In December of 1986, Detroit police officers seized approximately $167,000 from Wilson's residence. One year later, Wilson was stopped while driving a BMW automobile registered to Hanserd's grandmother and found in possession of cocaine, two hand guns, and an airline ticket stub showing a round trip between California and Detroit on December 6 and 7, 1987. In addition, Louisiana State Police stopped Hanserd and Medina in early 1988 and found approximately $197,000. In May of 1988, approximately $233,000 was seized from Medina and King. Finally, in January of 1989, law enforcement agents seized approximately $370,000 from Hanserd in Berrien County, Michigan.

II.

Defendants raise several objections to various trial court decisions which they allege deprived them of a fair trial. In areas ranging from the bounds of appropriate cross-examination to the propriety of introducing certain evidence, the defendants maintain that the trial court made determinations which singularly and collectively violated the defendants' right to a fair trial. We analyze these arguments in turn.

  1. Cross-Examination of Witnesses

    Kenneth Echavarria, one of Medina's employees who became involved in drug trafficking, and DEA agent Richard Crock are the focus of defendants' claims that they were unable to effectively cross-examine witnesses. Specifically, defendants object to rulings of the trial court limiting their questioning of the two on cross-examination. They also contend that they were improperly denied access to Echavarria prior to cross-examination and to ten pages of Crock's grand jury testimony and a DEA interview report. Finally, defendants argue that they deserved a continuance to investigate the veracity of the statements made by government witnesses on direct examination.

    During Echavarria's cross-examination, counsel for Wilson attempted to question him on alleged inconsistencies between the quantity of cocaine for which he was sentenced (400 grams) as a result of his plea bargain and the quantity of cocaine with which he was actually involved. The government objected to the "argumentative" form of counsel's question, which asked whether Echavarria "would have come into court and lied" about his involvement with cocaine. The trial court, finding that the defendants had already shown the jury that Echavarria received a "good deal" from the government in exchange for his testimony, sustained the objection.

    Defendants also assert that they were restricted in their exploration of Echavarria's prior criminal history in that they possessed information that Echavarria had a 1985 California conviction for public intoxication and destruction of personal property that was not included in the calculation of his sentence. They sought to establish that Echavarria misled the probation officer responsible for compiling his presentence report by failing to mention his prior convictions. Out of concern that such questioning would divert the jury's attention away from the focus of the case, the trial court stopped further inquiry into the calculation of Echavarria's sentence because it was more prejudicial than probative. While a defendant has a Sixth Amendment right to confront and cross-examine witnesses, that right is not absolute; the trial court has discretion in determining the scope of cross-examination. United States v. Atisha, 804 F.2d 920, 929 (6th Cir.1986), cert.

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    denied, 479 U.S. 1067, 107 S.Ct. 955, 93 L.Ed.2d 1003 (1987). Here, in limiting the defendants' cross-examination of Echavarria, the trial court did not abuse its discretion. In sustaining an objection to a question regarding the alleged disparity between the quantity of cocaine used for Echavarria's sentencing and the cocaine actually involved in his criminal activity, the trial court properly noted that any alleged disparity in quantity had already been established by defendants. Thus, the jury had enough information at that point to assess the defendants' theory that Echavarria received an improperly low sentence. See Dorsey v. Parke, 872 F.2d 163, 167 (6th Cir.), cert. denied,...

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