U.S. v. Beasley, 90-7888
| Decision Date | 05 October 1993 |
| Docket Number | No. 90-7888,90-7888 |
| Citation | 2 F.3d 1551 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Noble C. BEASLEY, Andre Bruce White, Stephanie Nodd, Richard Stanberry, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Ronnie L. Williams, Mobile, AL, for Beasley.
W. Gregory Hughes, Mobile, AL, for White.
Neil Hanley, Mobile, AL, for Nodd.
Arthur J. Madden, III, Mobile, AL, for Stanberry.
E.T. Rolison, Asst. U.S. Atty., Mobile, AL, for U.S.
Appeal from the United States District Court for the Southern District of Alabama.
Before COX, Circuit Judge, CLARK and WELLFORD *, Senior Circuit Judges.
Defendants appeal their convictions for conspiracy to distribute and to possess with intent to distribute crack cocaine. ** We affirm the convictions of all of the defendants and affirm the sentence of defendant Noble C. Beasley. For reasons set forth below, we vacate the sentences of the remaining defendants and remand for resentencing.
The government filed a one count indictment against defendants Noble C. Beasley, Stephanie Nodd, Andre Bruce White, Terry Herron (Beasley's son), Toney Nodd (Stephanie's brother), and Richard Stanberry. Also named in the indictment was Carlos Edman Jarmillo, who was a fugitive at the time the defendants were tried. The indictment charged the defendants with conspiring to distribute and to possess with intent to distribute more than five kilograms of cocaine base and crack cocaine, in violation of 21 U.S.C. Secs. 841(a)(1) and 846. All of the defendants, with the exception of Stanberry, were tried together; Stanberry was tried later in a separate trial. The government's principal witness at both trials was John Christopher, a convicted drug dealer who cooperated with the government in hopes of having his prison sentence reduced.
At the trial of Beasley, Stephanie and Toney Nodd, White, and Herron, Christopher testified as follows. In 1987, while Christopher was living in Atlanta, Georgia, Beasley purchased cocaine from Christopher on several occasions; each purchase was in the amount of one-half of a kilogram. In January 1988, Christopher moved to South Carolina because he had been arrested in Atlanta. Beasley continued to purchase cocaine from Christopher after this move to South Carolina. During one of these transactions, Beasley told Christopher that he hated to see Christopher moving around to avoid the police and that if Christopher needed a place to work where there would be no trouble, he could come to Mobile, Alabama, where Beasley lived. Beasley said that he knew a lot of the police officers in Mobile and that he would know ahead of time if there was going to be any trouble.
Christopher was later arrested in South Carolina, and he contacted Beasley about moving to Mobile. Christopher met Beasley at a hotel in Atlanta, and Beasley drove Christopher, one of the women who worked for Christopher, and Christopher's cocaine equipment to Mobile. On the drive to Mobile, Beasley and Christopher agreed that they would be partners in the cocaine business in Mobile, evenly splitting the profits. Beasley agreed to show Christopher where he could work and where Christopher's workers could sell cocaine. Beasley also agreed to let Christopher know ahead of time if there would be trouble from the police, so that Christopher could leave before he was arrested. Christopher was to actually operate the cocaine business.
When Beasley and Christopher arrived in Mobile, Beasley rented Christopher a hotel room. The next day, Beasley showed Christopher places in Mobile where Christopher might want to have his workers sell cocaine. Among other places, Beasley took Christopher to Esau Street, where a number of people were selling crack cocaine on the street. Beasley pointed out defendant Bruce White's house, which is located on Esau Street. Later, in a meeting arranged by Beasley, Christopher and White reached an agreement regarding the use of White's house and yard; in exchange for crack cocaine, White agreed to allow Christopher's workers to sell crack cocaine in his yard and to run into his house if and when the police came.
Christopher told Beasley that he wanted to meet someone who could sell cocaine for him, and Beasley introduced him to defendant Stephanie Nodd. Stephanie Nodd showed Christopher how to cut crack cocaine into a "tink," which is the unit of measurement in which crack cocaine was sold in Mobile, and she began selling the crack cocaine that Christopher provided to her. Christopher sent for two of his sons and one of his girlfriends, and they came to Mobile to sell cocaine for him, as did Christopher's brother's girlfriend. Christopher also planned to use local workers, because the local workers could identify the police and point out the persons with whom Christopher's workers should and should not deal. Beasley rented a car for Christopher to use, and Christopher and Beasley talked every day.
On or about July 4, 1988, Christopher told Beasley that he was "going to really open up and start dealing heavy." 1 Christopher sent his workers to Florida to purchase cocaine, and he also purchased cocaine from a Colombian named Carlos, who brought the cocaine to Mobile. Christopher cooked the cocaine into crack cocaine and provided it to his workers to be sold on Esau Street. Stephanie Nodd, Toney Nodd, Christopher's two sons, one of Christopher's girlfriends, and Christopher's brother's girlfriend all sold crack cocaine, which was provided to them by Christopher, from White's yard on Esau Street. Eventually, Stephanie Nodd stopped selling crack cocaine on the street and began delivering cocaine to and collecting money from the other workers in White's yard. According to Christopher, Stephanie Nodd "really ran everything because she knew everybody [in Mobile]." 2 Both Stephanie Nodd and Christopher wore beepers, and Christopher also communicated with his workers by making telephone calls to White's house. After Christopher's sons were arrested for selling crack cocaine at a hotel, Christopher decided that he needed a house where he could cook the crack cocaine. Christopher gave Beasley $10,000, and Beasley obtained for Christopher's use a house located behind the store that Beasley owned. Christopher's operation ceased when he was arrested in Mobile on August 10, 1988.
At Stanberry's trial, Christopher testified as follows. Stanberry purchased cocaine from Christopher on several occasions while Christopher was living in Mobile. These purchases totaled approximately one-half a kilogram of cocaine. Christopher would sometimes "front" the cocaine to Stanberry. 3 Stanberry sold the crack cocaine that he purchased from Christopher on the street in front of Stanberry's cousin's house, which was right around the corner from White's house on Esau Street. When Christopher went to Esau Street, he would see Stanberry selling crack cocaine to passing cars. Everyone selling crack cocaine in the Esau Street vicinity had a territory; Stanberry sold from his cousin's territory around the corner from Esau Street, and Christopher's workers sold from their territory in front of White's house.
At some point before Christopher's arrest in August 1988, Stanberry told Christopher that Carlos had a big package of cocaine that he was prepared to bring to Mobile; however, Carlos wanted to transport the package in Stanberry's car, which was in the shop in Tampa, Florida. Christopher gave Stanberry $1,500 to get the car out of the shop, with the understanding that Stanberry would repay the loan after he sold some of the cocaine that Carlos would be transporting. Sometime thereafter, Carlos arrived in Mobile in Stanberry's car with three kilograms of cocaine. Christopher purchased two of the three kilograms, and Stanberry got the remaining kilogram. After this transaction, Christopher and Stanberry "split up." 4 Carlos was on his way to Mobile with a second load of ten kilograms of cocaine when Christopher was arrested. Christopher was to purchase a portion of this ten kilograms; he did not know who was to get the remainder.
Terry Herron and Toney were acquitted; the remaining defendants were convicted. Beasley and Stanberry were sentenced to life without parole. Stephanie Nodd was sentenced to 360 months in prison, and White was sentenced to 324 months in prison.
Beasley raises six issues on appeal, all attacking his conviction. First, he contends that the district court erred in admitting the testimony of Jimmy Young as extrinsic act evidence under Fed.R.Evid. 404(b). Young testified that Beasley purchased cocaine from him on several occasions in 1987 and 1988; that, in one of these transactions, Beasley provided Young with the deed to a house in Mobile in exchange for 28 ounces of cocaine; and that Beasley knew that Young "had a strong [drug] connection coming out of Colombia" 5 and, therefore, tried to convince Young to accompany him to a ski resort in Tennessee to deal drugs. Young's testimony was offered by the government to prove Beasley's intent, which Beasley placed in issue by pleading not guilty to the crime charged. 6 Evidence of an extrinsic offense is admissible to prove intent if its probative value is not outweighed by undue prejudice. 7 Such evidence is probative if the intent involved in the extrinsic offense is the same as that of the charged offense. 8 Here, both Young and Christopher were drug dealers with access to large volumes of drugs through contacts outside of Alabama. Beasley undertook, through real estate transactions and otherwise, to establish and attempt to solidify his relationships with these two men. Thus, Young's testimony, like Christopher's testimony, evidences Beasley's intent to deal in cocaine by developing relationships with established dealers. We hold that the probative value of Young's testimony was not outweighed by undue...
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