U.S. v. Bingham

• Decision Date: 23 May 1996
• Docket Number: 95-3006,95-3171 and 95-3173,Nos. 94-4330,s. 94-4330
• Citation: 81 F.3d 617
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leonard BINGHAM (94-4330); Terrance B. Bagley (95-3006); Josephus M. Petaway (95-3171); Craig S. Houston (95-3173), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 617

81 F.3d 617

UNITED STATES of America, Plaintiff-Appellee, v. Leonard BINGHAM (94-4330); Terrance B. Bagley (95-3006) Josephus M. Petaway (95-3171); Craig S. Houston (95-3173), Defendants-Appellants.

Nos. 94-4330, 95-3006, 95-3171 and 95-3173.

United States Court of Appeals Sixth Circuit.

Argued Feb. 5, 1996.

Decided April 9, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied May 23, 1996.

On Appeal from the United States District Court for the Northern District of Ohio; James G. Carr, Judge.

Deborah K. Rump (argued and briefed), Office of U.S. Atty., Western Division, Toledo, OH, for U.S.

Spiros P. Cocoves (argued and briefed), Toledo, OH, for Leonard Bingham.

Carol L. Damrauer (argued and briefed), Toledo, OH, for Terrance B. Bagley.

Paul L. Geller (argued and briefed), Scalzo, Cherry, Geudtner & Geller, Toledo, OH, for Josephus M. Petaway.

Terry K. Sherman (argued and briefed), Columbus, OH, for Craig S. Houston.

Before MERRITT, Chief Judge, and CONTIE, and BOGGS, Circuit Judges.

CONTIE, Circuit Judge.

Defendants-appellants, Leonard Bingham, Josephus Petaway, Craig Houston, and Terrance Bagley, appeal their convictions and sentences for possession of cocaine and cocaine base with intent to distribute in violation of 21 U.S.C. § 841(a)(1); conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), 846; being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g); and carrying or using a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c). For the following reasons, we affirm in part and reverse in part.

I.

This case involves a drug operation in the housing project called "Lima Estates" in Lima, Ohio. A local task force began investigating drug trafficking in Lima in 1989. In September 1992, they were joined by federal A.T.F. agents. On June 16, 1993, a six-count indictment was returned by the federal grand jury in Toledo, charging eight defendants for various violations of narcotics and conspiracy laws. The charged defendants were Craig Houston, Josephus Petaway, Dan Lindsey, Shawn Bagley, Shawn Petaway, Jessie Petaway, Linda Petaway, and Leonard Bingham.

On July 14, 1993, a 16-count superseding indictment was returned, adding firearm violations. An additional defendant, Terrance Bagley, was charged with narcotics and firearm violations. Three defendants, Shawn, Jessie, and Linda Petaway, pled guilty and decided to testify on behalf of the United States.

By the end of June 1993, most of the defendants had been arrested, but Dan Lindsey remained a fugitive from justice. A bench trial began on June 3, 1994, and concluded on June 29, 1994. Dan Lindsey, who had been charged in the same indictment, was not tried with his codefendants. After Lindsey was arraigned on September 30, 1994, he pled guilty to the offenses charged and testified at the sentencing hearing of Josephus Petaway and Houston on January 30, 1995.

The facts which emerged at trial were as follows: a gang called "The East Side Posse" dominated the drug trade at the housing project, Lima Estates, in Lima, Ohio. Originally Terry Watkins was the head of the drug operation, but after he went to jail, Craig Houston and Josephus Petaway took over and assumed leadership roles. The East Side Posse gang conducted its operations from three primary locations in Lima--356 Chester (the residence of Craig Houston and Linda Petaway), 901 West North (the residence of Dan Lindsey), and various apartments in the Lima Estates housing project. From these locations, the New York supplier was contacted, the powder cocaine was converted into crack cocaine, the crack cocaine was distributed, and the money was counted. The defendants sold crack cocaine or cocaine powder on the east side of Lima, Ohio from 1990 until their arrest in June, 1993. Defendants sold narcotics to cars which drove up to the project as well as to their regular clientele at the housing project.

Josephus Petaway and Craig Houston initially used sources in Detroit for their supply of cocaine. However, in late 1990, after Craig Houston met "Slick Rick" at a New Year's Eve party, their source of supply changed to New York. Defendants Josephus Petaway and Houston pooled their money with co-conspirator Dan Lindsey and used members of Josephus Petaway's family, juveniles, and others to transport cocaine from New York City to Lima, Ohio. The couriers included Shouri Cunningham, various members of the Petaway family, Mary Simpson, Dexter Turner, and Aaron Porter. Dwight Pirtle was a drug user and member of the gang, who became an informant. Mary Simpson, Shouri Cunningham, and Dexter Turner were not indicted and all agreed to become witnesses for the United States.

Craig Houston was primarily responsible for cooking the crack cocaine. Houston referred to himself as "the chemist," had a reputation for excelling in the "rocking" process, and was called in to assist other gang members when there were problems getting the cocaine to harden.

The testimony at trial of Dwight Pirtle, Dexter Turner, Jessie Petaway, Shawn Petaway, and Linda Petaway indicated that defendants Houston, Josephus Petaway, and Lindsey worked in combination and were confederates in frequent and repeated purchases of sizeable quantities of cocaine from New York City. Once the cocaine had been delivered to Lima, Ohio, defendant Houston would turn it into crack cocaine upon request of the various sellers. The evidence also indicated that the agreement between Josephus Petaway, Houston, and Lindsey was limited to the purchase of cocaine in New York and its delivery to Lima. Thereafter, according to the testimony of Dwight Pirtle, Nate Bundley, a government informant, and Jessie Petaway, defendants Houston and Josephus Petaway would deal on their own with the other alleged co-conspirators, who sold the drugs. The testimony regarding the sale of cocaine was "everybody had their own dope, everybody set their own prices, and everybody collected their own debts."

On April 7, 1992, the Ohio Highway Patrol made a traffic stop of a vehicle which included as passengers defendants Josephus Petaway, Houston, and Shawn Bagley. None of the occupants had any identification, nor did they have paperwork for the car, which had been rented by a third party from a car dealership in Lima. The officer searched the car and found a total of $28,427, which was seized. The testimony at trial indicated defendants were on a trip to purchase cocaine when they were stopped.

After the federal investigation into the East Side Posse gang began, there were nine controlled purchases of crack cocaine by government informants, most of which were recorded. On June 28 and July 1, 1993, search and arrest warrants were executed at various apartments used by the East Side Posse gang. The officers seized several firearms, including semi-automatic handguns, hundreds of rounds of ammunition, crack cocaine, a bullet-proof vest, drug paraphernalia, scales, and approximately $26,000.

Defendants waived their right to trial by jury and proceeded to trial before the bench. On July 18, 1994, the district court filed findings of fact and conclusions of law. All of the defendants had been charged in the conspiracy count, Count 1 of the indictment. The district court found that defendants Craig Houston, Josephus Petaway, and Shawn Bagley ¹ were guilty beyond a reasonable doubt of participating in a conspiracy with Dan Lindsey to transport cocaine from New York City to Lima, Ohio. The district court found that the conspiracy between Houston, Josephus Petaway, and Lindsey was limited to the purchase of cocaine and its delivery to Lima, Ohio. Once the cocaine arrived in Lima, these three would deal separately with the other alleged co-conspirators. Therefore, in regard to the other defendants, the district court found that when they obtained drugs to sell from either Houston, Josephus Petaway or Lindsey, they were not participating in the conspiracy between those three to transport drugs to Lima, Ohio. The district court found that instead they were participating in a series of separate conspiracies with either Houston, Josephus Petaway or Lindsey, who at that point were operating on their own to sell their portion of the cocaine obtained from the shipments from New York.

Based on this reasoning, the district court found defendants Houston and Josephus Petaway guilty of conspiracy on Count 1, but acquitted defendants Terrance Bagley and Bingham on this count. He found each defendant guilty of using or carrying a gun in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c) based on specific weapons found in their residences during the execution of the search warrants and on testimony that they had been seen with weapons. In regard to the other counts of the indictment, the district court found defendants guilty as follows: defendant Houston, guilty of possession of ammunition as alleged in Count 7; defendant Josephus Petaway, guilty of possession with intent to distribute cocaine and cocaine base as alleged in Counts 4 and 5; defendant Bingham, guilty of possession with intent to distribute cocaine or cocaine base as alleged in Count 6, and being a former felon in possession of a firearm as alleged in Count 12; and defendant Terrance Bagley, guilty of possession with intent to distribute as alleged in Count 14.

The defendants timely filed an appeal.

II.

We will first decide whether the district court erred in its convictions of Josephus Petaway, Craig Houston, Terrance Bagley, and Leonard Bingham for using or carrying a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1). ²

The district court convicted Josephus Petaway of violating 18 U.S.C. § 924(c) for possessing a Raven .25 caliber semi-automatic firearm, a Lucin .380 semi-automatic firearm, and a Richfield TU-90 semi-automatic firearm. The weapons were found in the apartment at 510...