U.S. v. Bartholomew, 00-2453.
| Decision Date | 15 November 2002 |
| Docket Number | No. 01-1614.,No. 00-2453.,No. 00-1899.,00-2453.,00-1899.,01-1614. |
| Citation | 310 F.3d 912 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Richard Charles BARTHOLOMEW, Warren Gene Harris and Juleen Nicole Henry, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Mark C. Jones (argued and briefed), Assistant U.S. Attorney, Flint, MI, for U.S Joan Ellerbusch Morgan (argued and briefed), Troy, MI, for Richard Charles Bartholomew.
Warren Gene Harris, Bradford, PA, pro se.
Michael M. Losavio (argued and briefed), Louisville, KY, for Warren Gene Harris.
James L. Feinberg (argued and briefed), Detroit, MI, for Juleen Nicole Henry.
Before SILER, DAUGHTREY, and GILMAN, Circuit Judges.
Richard Charles Bartholomew, Warren Gene Harris, and Juleen Nicole Henry were indicted for conspiracy to distribute marijuana. Harris was also indicted for possession with intent to distribute the drug. After a jury convicted the defendants on all counts, the district court sentenced them to various terms of imprisonment. Bartholomew, Harris, and Henry now appeal, claiming that the district court committed numerous errors relating to their convictions and sentences. For the reasons set forth below, we AFFIRM the convictions and sentences of Harris and Henry, AFFIRM the conviction of Bartholomew, but VACATE Bartholomew's sentence and REMAND his case for resentencing.
On December 23, 1998, the United Parcel Service (UPS) office in Flint, Michigan received a package that aroused the suspicion of UPS employee Brian LaFalce. He contacted Sergeant A.J. Navidonski of the Flint Area Narcotics Group, a law enforcement agency of the state and county. After Navidonski examined the exterior of the package, he obtained a search warrant to look inside. When he opened the package, Navidonski discovered a tub that contained a substantial amount of marijuana. Laboratory tests later revealed that the precise amount was 12,115 grams (approximately 28 pounds).
Law enforcement officials decided to make a controlled delivery of the package. An undercover police officer, posing as a UPS driver, delivered the package to 729 West Dartmouth, Flint, Michigan, the address specified on the label. As other law enforcement officials set up surveillance, a man later identified as Harris emerged from the house at 729 West Dartmouth to answer the knock of the undercover officer. Harris signed the name "Billy Jones" and accepted the package.
Minutes after accepting delivery, Harris left the house through a back door. He traversed the neighborhood streets for thirteen minutes and spoke with no one during this time. Police officers who were continuing to observe Harris suspected that he was trying to ascertain whether he was, in fact, under surveillance.
After Harris circled back to 729 West Dartmouth, a four-door car arrived, and Harris got into the back seat on the passenger side. The car was driven by Jajuan Gardner, with Bartholomew and Cherron Wright as passengers. Police officers followed the car in an unmarked van. Gardner and Harris soon noticed that they were being followed. They sped up, but were unable to elude the van, so Gardner pulled into a tire store and stopped the car. The car's occupants all jumped out and started running.
Additional police officers arrived on the scene and apprehended Bartholomew, Gardner, Harris, and Wright. Bartholomew had $2,133 in cash on his person, Gardner was carrying $973, and Harris possessed $562. In addition, Harris was carrying a pager that had very recently received a telephone call from the nearby Budgetel Inn. Bartholomew also had on his person, among other things, a traffic citation that listed his address in Houston, Texas, an address book containing many names, and a piece of paper with numerical calculations that the officers believed were drug tabulations. He informed the arresting officers that he was staying in Room 315 of the Budgetel Inn, which was confirmed by the hotel's records. The records also showed that Room 317 had been assigned to "McGartha Johnson," an alias for Jajuan Gardner.
Several police officers accompanied Bartholomew to Room 315 at the hotel. Bartholomew consented to the police searching the room, but the card key in their possession failed to unlock the door. The officers, however, "had information" that the adjacent room might be involved in drug trafficking. They therefore knocked on the door to Room 317 and announced that they were the police. A man inside, later identified as Otis James Jackson, acknowledged the knock. Two minutes later he opened the door and permitted the officers to enter the room to speak with him.
Once inside the room, the officers encountered a woman, later identified as Henry, who was naked below the waist. The officers instructed her to put on her clothes, which she promptly did. Jackson then consented to a search of the room.
One officer found a black suitcase beside the bed. Henry said that it was hers and that the officers could search it. The suitcase contained $31,700 in cash, packaged with rubber bands in $850 bundles. Another officer found an address book on a table in the room. Three pages of adhesive notes in the book contained sets of numbers, which the officer recognized as drug tabulations. The officers also discovered a coupon for Western Union, business cards from Philadelphia and Jamaica, prepaid telephone cards, several cards that they recognized as drug tabulation ledgers, a piece of paper on which was written "When you go through immigrations go to the baggage claim and collect your baggage," and a piece of paper on which was written the name "Michael Lewis" and the address "729 West Dartmouth."
Other officers searched the house at 729 West Dartmouth pursuant to the search warrant that they had obtained earlier that day. In the basement were four tubs that were similar to the one in the UPS package that the undercover officer had just delivered. A closet next to the stairs leading to the basement contained a shotgun and loose ammunition. Other firearms were found in an upstairs bedroom. The officers also discovered a notebook that contained what they believed were drug ledgers.
On January 6, 1999, the federal grand jury in the Eastern District of Michigan indicted Bartholomew, Gardner, Harris, Henry, and Jackson for conspiracy to distribute marijuana, in violation of 21 U.S.C. §§ 846 and 841(a)(1). It also indicted Harris for possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). The grand jury returned a first superceding indictment on April 14, 1999, which repeated the charges of the earlier bill, but specified that the conspiracy existed between approximately 1996 and December of 1998.
All defendants pled not guilty. Gardner proceeded to trial first and was convicted on May 24, 1999. The remaining four defendants were tried together. Just before the voir dire at their joint trial, the prosecutor agreed to dismiss the firearm count against Harris. The jury then heard testimony from various law enforcement officers that detailed their observations from the hotel and house searches. This testimony catalogued the items that the officers discovered and explained how those items connected Bartholomew, Gardner, Harris, Henry, and Jackson to each other through names, nicknames, and telephone numbers, as well as common places and businesses. The jurors also heard from Gardner, who was called as a government witness.
Gardner told the jury of his dealings with Bartholomew, Harris, and Jackson. He described three occasions in October and November of 1998 when he purchased marijuana from Jackson in the basement of Harris's residence at 729 West Dartmouth. Although Jackson handled the marijuana, Harris participated in each transaction, either by directing Gardner to the basement or accepting payment. Gardner estimated that during the time he was dealing with Bartholomew, Harris, and Jackson, those three individuals and a couple of others trafficked in a total of between 100 and 400 pounds of marijuana.
The jury also heard testimony concerning events that took place outside of Michigan. Four are pertinent to this appeal. First, Pennsylvania State Police Officer Carlton Watson told the jurors that while working undercover in Philadelphia in the summer of 1997, he twice purchased marijuana from Jackson. Second, Juliet Brown, who was married to Bartholomew from 1995 to 1997, testified that when they were living together in Houston, Texas in 1996, she observed large quantities of marijuana in their home on several occasions. She also heard Bartholomew direct a third party to transport the drugs to Indiana on at least one of these occasions. Third, several witnesses related their experiences as couriers for Bartholomew and Jackson. Robin Caldwell, for example, told how Bartholomew paid her to transport large sums of cash between Indiana and Texas in the summer and fall of 1997 to facilitate his drug transactions. Two other couriers, Beatrice Boler and Kahlia Moore, stated that, on separate occasions in 1998, each had carried bundles of cash from Flint, Michigan to Houston, Texas at the behest of, and accompanied by, Bartholomew and Jackson. Finally, the government presented evidence concerning the activities of Rohan Edwards in Phoenix, Arizona. On July 9, 1998, law enforcement officials located a substantial amount of marijuana at Edwards's townhouse. Immediately prior to his arrest, Edwards had been taken by associates to a hotel room in Tempe, Arizona that had been reserved by Henry.
On February 10, 2000, the jury convicted the remaining defendants on all pending charges. The district court then sentenced...
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