Spearman v. United States, No. 97-2339

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: CLAY; RYAN; ALICE M. BATCHELDER
• Citation: 186 F.3d 743
• Parties: (6th Cir. 1999) Marktray Spearman, Defendant-Appellant v. United States of America, Plaintiff-Appellee, Argued:
• Docket Number: No. 97-2339
• Decision Date: 30 April 1999

Page 743

186 F.3d 743 (6th Cir. 1999) Marktray Spearman, Defendant-Appellant
v.
United States of America, Plaintiff-Appellee, No. 97-2339 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Argued: April 30, 1999
Decided and Filed: August 2, 1999

Appeal from the United States District Court for the Eastern District of Michigan at Flint.

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Mark C. Jones, OFFICE OF THE U.S. ATTORNEY, Flint, Michigan, for Appellee.

Douglas R. Mullkoff, Ann Arbor, Michigan, for Appellant.

Before: RYAN, BATCHELDER, and CLAY, Circuit Judges.

CLAY, J., delivered the opinion of the court as to Parts I and III, and the result reached in Part II. RYAN (p. 756) and BATCHELDER (pp. 756-59), JJ., delivered separate opinions concurring in theresult reached in Parts I and III, and specifically refusing to concur in any aspect of Part II except subpart D.

OPINION

CLAY, Circuit Judge.

Defendant, Marktray Spearman, appeals from his conviction for conspiracy to distribute cocaine in violation of 21 U.S.C. 841(a)(1) and 21 U.S.C. 846. For the reasons set forth below, we AFFIRM Defendant's conviction.

BACKGROUND

Procedural History

A grand jury issued a twelve count superseding indictment against Defendant (a/k/a "Punchie") and his brother, Edward Omar Spearman, on March 17, 1995, where Count 2, conspiracy to distribute cocaine, 21 U.S.C. 841(a)(1), 846; Count 10, use of a firearm in relation to a felony drug offense, 18 U.S.C. 924(c); and Count 11, use of firearm in relation to a drug felony offense, 18 U.S.C. 924(c), related to Defendant. Count 1 as well as Counts 3-9 related to Edward Spearman¹. Prior to trial, Defendant filed a "motion for pretrial hearing to determine existence of conspiracy in order to determine if severance is appropriate," which the district court denied.

A jury trial was held from January 26, 1996 through February 29, 1996. At the end of trial, Defendant made a motion for judgment of acquittal. The district court denied the motion on Count 2, and took Counts 10 and 11 (those counts charging use of firearms in relation to a felony drug offense), under advisement. The jury rendered guilty verdicts on all three counts issued against Defendant; thereafter, the district court granted Defendant's motion

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for judgments of acquittal on Counts 10 and 11. Defendant was sentenced on the single remaining conviction -- conspiracy to distribute cocaine -- to a term of 355 months' imprisonment plus a five-year supervised release term. It is from this conviction and sentence that Defendant now appeals.

Facts

This case arises out of an investigation into drug and firearm dealings in the City of Flint, Michigan. The investigation centered around Defendant, his brother Edward, Jerome Barfield, Laron Burns, as well as other actors and their roles in the distribution of crack cocaine. Barfield testified that he had known Defendant and Edward for about twenty years; that he began selling crack cocaine in 1987 for "double ups" (paying $50 for the cocaine and selling it for $100); that he sold crack cocaine to Defendant and Edward whenever their supply was depleted or running low; and that they did the same for him. Barfield stated that it was common for people who sold cocaine to buy back and forth from one another when their supplies ran low. From 1988 through 1991, Barfield sold cocaine on the same streets as Defendant and Edward. Barfield saw Defendant selling drugs on a daily basis, and he saw Edward with Defendant about three to four times a week.

Defendant and Edward were members of a gang called "Folks Up;" members of the gang wore distinctive clothing and colors; and the gang was involved in the sale and distribution of cocaine. Members of the gang specifically worked for Barfield in the sale and distribution of cocaine. If Defendant was "short" of money to purchase the cocaine, Barfield would loan him the money; and if Defendant and Barfield were both short on money, Edward would loan them the money to purchase the cocaine for resale. Whenever there was a shortage of cocaine in the area, Lonzo Keel would help supply cocaine to Barfield, Defendant, and Edward. Barfield, Defendant, and Edward discussed their displeasure with the Detroit-based drug dealers "setting up shop" in the Flint area because the Detroit dealers presented too much competition.

In February of 1992, Defendant accompanied Barfield and Barfield's two brothers on a trip to Miami for the purpose of purchasing cocaine. During the trip, Barfield discussed "drugs" with Defendant, particularly the kilogram of cocaine that the men were going to purchase in Florida. On the way back to Michigan, the men stopped in Philadelphia to purchase cocaine; however, the price was too high. Barfield explained that he and Defendant had each brought $12,500 on the trip for the purpose of purchasing cocaine and later selling it in Flint. Defendant and Barfield were going to combine their money ($25,000 in total), purchase the cocaine, and then split the cocaine down the middle for resale purposes. Defendant, Barfield, and the other men with whom they were traveling videotaped portions of the trip to and from Miami. When he returned to Flint, Defendant was ultimately arrested in the attic area of a house where he was known to reside. Cocaine was found in the attic at the time of Defendant's arrest.

At Defendant's trial, the prosecution admitted the entire videotape of Defendant's trip to Florida into evidence without objection, and played portions of the videotape to the jury. Defendant objected to the videotape being played in selected portions, arguing that the entire tape should be played so that the jury would interpret the tape in its proper context. The trial court overruled Defendant's objection; however, the court allowed Defendant the opportunity to play the tape in its entirety if he chose to do so, and also allowed the jury to view the tape in its entirety during their deliberations if they felt that it was necessary.

ANALYSIS

I.

Sufficiency of the Evidence

Defendant first argues that there was insufficient evidence presented by the

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government to support his conviction for conspiracy to distribute cocaine beyond a reasonable doubt. Defendant contends that there was no evidence to indicate that he entered into a criminal agreement to distribute cocaine, and that the government's evidence merely indicated coincidental drug dealings and a family relationship between co-defendants. We disagree.

We review a challenge to the sufficiency of the evidence by considering the evidence in the light most favorable to the prosecution to determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. United States v. Jones, 102 F.3d 804, 807-08 (6th Cir. 1996). A defendant making such a challenge bears a very heavy burden. United States v. Vannerson, 786 F.2d 221, 225 (6th Cir. 1986). "Circumstantial evidence alone is sufficient to sustain a conviction and such evidence need not remove every reasonable hypothesis except that of guilt." Id. (citing United States v. Stone, 748 F.2d 361 (6th Cir. 1984)). Furthermore, it is well-settled that uncorroborated testimony of an accomplice may support a conviction in federal court. See Krulewitch v. United States, 336 U.S. 440, 454 (1949); United States v. Sherlin, 67 F.3d 1208, 1214 (6th Cir. 1995).

When considering a challenge to the sufficiency of the evidence on a conviction for conspiracy to distribute drugs, this Court has found as follows:

The essential elements of conspiracy are that the conspiracy was willfully formed and that the defendant willfully became a member of the conspiracy. An overt act need not be proven in a 846 conspiracy. For conviction, [the defendant] must have been shown to have agreed to participate in what he knew to be a joint venture to achieve a common goal. However, actual agreement need not be proved. Drug distribution conspiracies are often "chain" conspiracies such that agreement can be inferred from the interdependence of the enterprise. One can assume that participants understand that they are participating in a joint enterprise because success is dependent on the success of those from whom they buy and to whom they sell.

United States v. Bourjaily, 781 F.2d 539, 544 (6th Cir. 1986) (citations omitted).

As noted in Bourjaily, for conviction, actual agreement need not be proved in that the agreement may be inferred from the interdependence of the enterprise. 781 F.2d at 544. Here, pursuant to Barfield's testimony, a reasonable juror could clearly infer that Defendant entered into an agreement to distribute cocaine with Barfield and Edward beyond a reasonable doubt. For example, Barfield testified that if any one of the three were "short" on cash to purchase cocaine for distribution, they would loan one another money to make the purchase; that on one occasion Barfield heard Edward order Defendant to "cook-up" some crack cocaine in the microwave; that Barfield and Defendant "cooked-up" cocaine together for the purpose of selling it for profit; that Barfield and Defendant traveled to Florida and to other states for the purpose of purchasing cocaine for distribution in Flint, and that they were each going to contribute $12,500 to purchase the cocaine; that Defendant and Edward were members of the "Folks Up" gang, and that members of the gang sold cocaine for Barfield.

Accordingly, Defendant's argument that it was merely coincidental that Defendant, Edward, and the people with whom they were involved all sold drugs, is wholly without merit. The overwhelming testimony indicates that Defendant willfully participated with Edward and Barfield to achieve the common goal of distributing cocaine inasmuch as the agreement to do so could be inferred from the interdependence of their acts, and where the evidence indicated that on at least one occasion a kilogram of cocaine was involved. See

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