U.S. v. Baptiste, 99-31027

• Citation: 264 F.3d 578
• Decision Date: 31 August 2001
• Docket Number: No. 99-31027,99-31027
• Parties: (5th Cir. 2001) United States of America, Plaintiff-Appellee, v. Clifford Baptiste, Christopher Frank, LeShawn Parker, Garion McCoy, Brian Anthony Jones, Percy Franklin and Rico Schexnayder, Defendants-Appellants,
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 578

264 F.3d 578 (5th Cir. 2001)

United States of America, Plaintiff-Appellee, v. Clifford Baptiste, Christopher Frank, LeShawn Parker, Garion McCoy, Brian Anthony Jones, Percy Franklin and Rico Schexnayder, Defendants-Appellants,

No. 99-31027

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

August 31, 2001

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Appeals from the United States District Court for the Eastern District of Louisiana

Before KING, Chief Judge, and REAVLEY and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Appellants Clifford Baptiste, Christopher Frank, Percy Franklin, Brian Jones, LeShawn Parker, Garion McCoy, and Rico Schexnayder challenge their convictions for firearm and drug-related crimes. We affirm their convictions, but, applying this circuit's interpretation of Apprendi v. United States, reverse their sentences and remand for resentencing.¹

I. FACTS

Following a rash of shootings and drug arrests in the Seventh Ward of New Orleans between 1991 and 1998, a federal grand jury charged the appellants in an eighteen-count superseding indictment² with conspiracy to distribute crack cocaine, using firearms during and in relation to drug trafficking crimes, and possessing firearms after being convicted of felonies.³ The indictment did not allege the quantity of drugs involved in the conspiracy. After the severance of one defendant eliminated one count, the appellants were tried together on the remaining seventeen counts in May 1999.

A. Evidence related to count 1 (conspiracy to distribute crack).

The government presented evidence at trial that an "open air drug market" existed in the Seventh Ward beginning in the early 1990s. Witnesses testified that a group of crack dealers sold drugs near the intersection of Dorgenois and Lapeyrouse streets (the "Dorgenois Group"). Witnesses identified all of the appellants except Garion McCoy as crack dealers associated with this group. Although no witnesses saw McCoy selling crack McCoy reportedly associated with group members in the area.

Witnesses testified that another group of crack dealers sold drugs near the intersection of Rocheblave and Laharpe streets (the "Rocheblave Group"). This group included Troy Harris, Earl Charles, and cousins of the Enclarde family. A government witness associated with this group testified that the members bought drugs as individuals and did not collude to sell drugs.

Baptiste and Jones led the Dorgenois Group. Jones brought most of the crack into the neighborhood and sold it to other members. Baptiste was "almost on the same level with Brian Jones," and also provided drugs for the group. Members of the Dorgenois Group styled themselves as the "Seventh Ward Hardheads" or the "Seventh Ward Soldiers." McCoy bragged to Davis LeBouef, a fellow inmate, in 1998 that he dealt heroin and crack with a gang that called itself the "Seventh Ward Soldiers." The government presented letters that Frank had received referring to "hardheads," "soljuas," and "7th Ward Soljuas." One of these letters was from Parker.

The government initially charged Adonis Thompkins for conspiring with the appellants, but it allowed him to plead guilty to misprision in exchange for testimony against the appellants. Thompkins testified at trial that all of the appellants except McCoy sold crack. He knew this because "[w]e all sold drugs together, you know." Thompkins further testified, however, that he considered himself an independent actor who sought to purchase drugs at the lowest price. Thompkins was supplied by Baptiste, Jones, and Schexnayder, as well as by Troy Harris of the Rocheblave Group. In bad weeks, he sold an ounce of crack. He said that he did not know of a Seventh Ward Soldiers organization. Thompkins believed that Schexnayder sold drugs for his own personal benefit.

Thomas Enclarde, a member of the Rocheblave Group, testified that he purchased drugs from Baptiste fifteen to twenty times. He testified that he purchased drugs from Jones eight to ten times, typically in $50 or $250 increments, but at times in quantities of about an ounce.

Earl Charles, another member of the Rocheblave Group, testified that Baptiste, Jones, and Schexnayder sold drugs in $500 and $250 increments, while Frank, Franklin, and Parker sold crack in smaller "rocks."

Police officers testified that they arrested the appellants for numerous drug and weapons offenses during the period of the alleged conspiracy. Nearly all of these arrests occurred in a twelve square block area. An officer arrested Schexnayder as he attempted to sell several pieces of crack in August 1991. Another officer arrested Baptiste and an unidentified person in May 1992, seizing a handgun, $230 cash, and thirteen rocks of crack. An officer arrested Baptiste again in August 1992 and seized two handguns and a bag of crack.

A police officer arrested Frank for possession of five pieces of crack in May 1995. In September 1995, Franklin stopped an unidentified person from selling crack to an undercover agent. The agent arrested Franklin with four pieces of crack.

An officer chased Schexnayder's vehicle and arrested him in November 1996. The officer recovered $1200, a gun, and twenty-nine individually wrapped rocks of crack. The officer testified that drug dealers commonly wrapped crack in this fashion for sale. The district court rejected an objection by Schexnayder's attorney that these statements were "beyond the scope" of the officer's testimony about the incident.

In March 1997, the police arrested Franklin for possession of a pistol and ammunition. The next month, an officer heard shots and arrested Parker after observing him with a gun in his hand.

An officer chased Frank after seeing him participate in a drug sale in May 1997. The officer recovered a bag of cocaine, $120, and ammunition after arresting him. Also that month, officers caught Schexnayder and another man purchasing drugs. The police recovered seven pieces of crack and $1300 from them. In June 1997, when the police arrested Parker and another man, they found a rock of crack, a marijuana cigarette, and $438 in an envelope with Parker's name on it.

In August 1997, an officer found Thompkins with McCoy. Thompkins had $140 and a rock of crack hidden in his shoe, but a search of McCoy produced nothing, and the officer released him.

Police officers searched the homes of several of the appellants between 1997 and 1998. In December 1997, they seized a sawed-off shotgun, an assault rifle, a .357 pistol, and bags of AK-47 ammunition from Parker's house. Several months later, a second search of Parker's house produced twenty-nine shotgun shells.

In May 1998, officers found a pistol, a balance scale, two bags of AK-47 ammunition, and $36,000 in cash at Jones's house. Jones initially disclaimed the money, but then asserted that the cash was from the recent sale of two vans. Jones admitted at trial that at the time of the search, he could not recall the purchasers of the vehicles. He testified that he did not give the purchasers title to the vans because his business owned the vehicles.

At trial, the government introduced six firearms into evidence. These firearms were not connected to the charged firearms offenses, though they were seized from appellants' possession during the course of the investigation. Defense attorneys did not object to this evidence.

B. Evidence related to the §§ 924(c)(1) and 922(g)(1)/924(a)(1) counts.⁴

Witnesses testified that the Dorgenois and Rocheblave groups coexisted peacefully until 1994. On or about January 5, 1994, however, Michael Enclarde of the Rocheblave Group killed Kevin Hall and Terrance Green. Green and Hall were "close" to Baptiste and Jones, and their names appeared under "R.I.P." in several of the "Seventh Ward Soldiers" letters that Frank received. A witness testified that an angry Baptiste inspected the scene of Green's and Hall's deaths.

1. Evidence related to Count 2 (using/carrying a firearm in relation to a drug crime) and Count 3 (possession of a firearm by a felon).

Some of the appellants went on a series of shooting sprees against members of the Rocheblave Group beginning January 6, 1994. Baptiste and Jones drove up to and repeatedly shot at a minivan containing Harris, Charles, and Leonard Phillips. Jones was wielding an SKS rifle, an assault rifle similar to an AK-47.

2. Evidence related to Count 5 (using/carrying a firearm in relation to a drug crime).

Jones, armed with a gun, chased Michael Enclarde into a store that same afternoon. Witnesses heard shots and then saw Jones emerge. Thomas Enclarde went into the store and found Michael Enclarde's body. Jones later said that he shot Michael Enclarde for killing Jones's friends.

3. Evidence related to Count 6 (using/carrying a firearm in relation to a drug crime) and Count 7 (possession of a firearm by a felon).

Thompkins testified that Baptiste and Jernard Lewis⁵approached him on February 22, 1996 looking for members of the Enclarde family. Thompkins heard shots a few minutes later and saw Lewis running. Dale Womack, a cousin of the Enclardes, saw Baptiste and an unidentified man stand over Joseph Enclarde and shoot him to death.

4. Evidence related to Count 8 (using/carrying a firearm in relation to a drug crime) and Count 9 (possession of a firearm by a felon).

Womack's mother testified that on July 12, 1996, Baptiste and two other men came to her house looking for Phillip Enclarde. Dale Womack dropped Phillip Enclarde off at a street corner that night and drove to a nearby gas station with Thomas Enclarde. Womack heard shots and saw Baptiste chasing Phillip.

Thomas Enclarde testified, however, that he was with Womack the entire time and did not hear shots. He testified that the police were already present when he and Womack arrived at the scene of the shooting.

A police officer arrived on the scene within three minutes of receiving a call about the shots and found ...