On March 30, 2007, a grand jury returned a 10-count indictment against Turner. (Crim. Doc. 1). Counts 1, 2, and 3 charged him with distribution of a mixture and substance containing cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). Counts 4 and 5 charged distribution of 50 grams or more of a such a substance and mixture, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). Count 6 charged possession with intent to distribute a mixture and substance containing cocaine base, cocaine hydrochloride, and marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). Count 7 charged Turner with carrying a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A)(i). Finally, Counts 8, 9, and 10 charged possession of a firearm after previous conviction of a felony, in violation of 18 U.S.C. § 922(g)(1). Attorney Russell Steen was appointed to represent Turner, who initially pled not guilty.
Steen filed a variety of discovery and other pre-trial motions. Those included a motion to suppress evidence obtained pursuant to two state search warrants (Crim. Doc. 15), a motion for leave to hire an investigator (Crim. Doc. 16), and threemotions in limine. (Crim. Docs. 34, 36, 37). The defense argued that the affidavits used to obtain the search warrants (see Crim. Docs. 19-1, 19-2) failed to demonstrate probable cause. (Crim. Doc. 15). The court denied the motion to suppress (Crim. Docs. 24, 35), but granted the motion for an investigator as well as a motion in limine related to the use of power company records to show Turner's "ownership" of searched premises. (Unnumbered margin entries in criminal case dated 7/2/2007; Crim. Doc. 52).
The case went to trial before the undersigned on July 11, 2007, with the selection of a jury, opening statements, and the commencement of the Government's case. The prosecution continued with its presentation the following day. On July 13, 2007, the Government rested, having presented 17 witnesses and 120 exhibits. At that time, Turner advised the court of his desire to enter into a plea agreement. That same day, Turner signed a plea agreement (Crim. Doc. 47 ("Plea Agreement")) and a "Guilty Plea Advice of Rights Certification" form (Crim. Doc. 48 ("Rights Certification")), and he pled guilty. (Crim. Doc. 80 ("Guilty Plea Hearing Transcript" or "Plea Trans."). At that plea hearing, Turner admitted to the following facts as alleged by the Government:
In the late Fall of 2006, agents with the Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF) and investigators with the Birmingham Police Department (BPD) received information from aconfidential source (hereinafter referred to as, "CS#1") that defendant, Hayzen Turner, Jr., a convicted drug trafficking felon, was a major source of supply for cocaine, to include crack cocaine, in the Birmingham, Alabama area. In or around this same time period, agents with the Drug Enforcement Administration (DEA) received information from a different confidential source (hereinafter referred to as, CS#2) that Hayzen Turner, Jr., was in the business of selling large amounts of "crack" cocaine. Both sources described Turner as the owner and operator of "Turner Auto," a used car lot located 2156 Vanderbilt Road in Birmingham, Alabama. According to both sources, Turner utilized his business and his home as bases of operation from which he engaged in the sale of illegal narcotics. Shortly after receiving this information, and unknown to one another, both agencies began preparing to use their respective sources to effect the controlled purchase of "crack" cocaine from the defendant.
In early December 2006, CS#1 advised BPD and ATF that he/she could purchase "crack" cocaine directly from Turner. In order to arrange a deal, CS#1 made a number of telephone calls to Turner in which the two discussed the sale of a few "crack" rocks for $125. On December 5, 2006, agents gave CS#1 $125 in recorded task force funds. Prior to leaving for the deal, CS#1 and his/her vehicle were searched for any weapons, money or other contraband, with none found. Initially, the transaction was supposed to take place at the residence located at 3515 34th Avenue North in Birmingham, Alabama, however, Turner later contacted CS#1 to move the meet location to a laundry mat located at the 3000 block of 12th Avenue North in Birmingham. CS#1 was observed meeting with the defendant, Hayzen Turner, Jr., at a laundry mat. Turner approached CS#'s vehicle and gave CS#1 a small amount of suspected "crack" cocaine. Once at the neutral location, CS#1 turned over approximately 2 grams of "crack" cocaine. The substance was tested confirming the presence of cocaine base, or "crack" cocaine.
The next day, December 6, 2006, CS#1 again informed ATF agents that he/she could purchase more "crack" from Turner at his place of business, Turner Automotive. In the same manner described above, CS#1 was searched and given $125 in recorded funds. Agents watched as Turner pulled up to the business in a blue pick-up truck and entered Turner Automotive. CS#1 followed Turner into the business andemerged a short time later with what appeared to be "crack" cocaine. Once at the neutral location, the drugs were turned over to agents and tested presumptively positive for "crack" with a net wet 2.2 grams. During a debrief with agents, CS#1 advised that Turner had a small black pistol laying next to the bag from which he retrieved the "crack" cocaine.
Two days later on December 8, 2006, in a manner substantially similar to that described above, BPD officers and ATF agents gave CS#1 recorded task force funds in the amount of $300 to be used to purchase "crack" cocaine directly from Hayzen Turner, Jr. from inside Turner Automotive. Turner was again observed arriving at the business, unlocking the gate, and entering the building with CS#1 following. A short time later, CS#1 is seen coming out of the building with yet another small package which was immediately turned over to law enforcement upon arrival at the prearranged neutral location. The suspected "crack" tested presumptively positive, however, only one of the four small plastic bags was tested. The tested portion had a net weight of 1.7 grams.
Unbeknownst to agents with ATF, also on December 8, 2006, agents with DEA were preparing to arrange for a controlled purchase of 2 ounces of "crack" cocaine directly from Turner with the assistance of CS#2. On December 11, 2006, CS#2 placed a monitored and recorded telephone call to Turner in which the two agreed that CS#2 would pay $1,500 for 2 ounces of "crack" cocaine. They further agreed to meet at "the shop", meaning Turner Automotive. Prior to leaving for the deal, CS#2 was fitted with an electronic video and audio monitoring and recording device. Additionally, his/her person and vehicle were searched for any weapons, money or other contraband, with none found. Agents observed Mr. Turner arrived at the business in a champagne Chevy Tahoe, registered in his name. Turner entered the business, and shortly thereafter, CS#2 arrived and went inside. A few minutes later, CS#2 exited the building and drove his/her car to a rearranged neutral location where the suspected "crack" was immediately turned over to agents. After presumptively testing positive for "crack," the drugs were packaged and sent to the DEA drug lab where the substance was confirmed to be cocaine base or "crack" cocaine, with a net weight of 59.5 grams. During a debrief, CS#2 informed agents that Turneradvised that he could provide 3 or 4 more ounces of "crack" the following week. The video recording clearly shows Hayzen Turner, Jr., handing a small package to CS#2 just moments before CS#2 then turned the package containing "crack" cocaine over to agents.
Shortly after the above referenced drug purchase, agents with ATF and DEA became aware of the other agencies' operation. On December 19, 2006, DEA agents formulated a plan to make a controlled purchase of 3 ounces of "crack" cocaine for $2,250 from Turner with the assistance of CS#2. On December 20, 2006, DEA agents met with CS#2 and fitted him/her with an electronic audio/video monitoring and recording device, searched his/her vehicle the same manner as previously described, and provided him/her with $2,250 in recorded funds. CS#2 again called Turner and the two arranged to meet at "the shop," or Turner Automotive. Agents established surveillance on Turner Automotive just prior to CS#2 leaving for the meeting. CS#2 arrived at Turner Automotive to find a number of black males standing outside apparently waiting for Turner to arrive. After approximately ten minutes, Turner arrived driving the same champagne colored Chevy Tahoe mentioned above. Agents observed Turner exit the car and greet CS#2. The two then entered the business together. After a few minutes, CS#2 was
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