U.S. v. Burns
| Decision Date | 29 July 2002 |
| Docket Number | No. 00-5851.,No. 00-6020.,No. 00-5846.,No. 00-5848.,No. 00-5839.,00-5839.,00-5846.,00-5848.,00-5851.,00-6020. |
| Citation | 298 F.3d 523 |
| Parties | UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. Antonio BURNS (00-5848), Anthony Harden (00-5846), Jerome Harden, Jr. (00-5851), and Michael Jordon (00-5839), Defendants-Appellants/Cross-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Charles P. Wisdom, Jr., Assistant United States Attorney (briefed), Lexington, KY, Laura K. Voorhees, Assistant United States Attorney (argued and briefed), Covington, KY, for U.S.
Patrick F. Nash (briefed), Lexington, KY, for Michael Jordan.
Anthony Harden, Beaver, WV, pro se.
Melynda W. Cook Reich (briefed), Schad & Cook, Indian Springs, OH, for Anthony Harden.
Antonio Burns, Atlanta, GA, pro se.
Michael L. Boylan (argued and briefed), Louisville, KY, for Antonio Burns.
Ed W. Tranter (briefed), Tranter & Meier, Fort Thomas, KY, for Jerome Harden.
Before COLE and GILMAN, Circuit Judges; MILLS, District Judge.*
In March of 2000, a federal-court jury found Antonio Burns, Anthony Harden, Jerome Harden, Jr., and Michael Jordon guilty of crimes related to a conspiracy to possess and distribute cocaine base (crack cocaine). The defendants now appeal their convictions and sentences. All four defendants argue that the evidence at trial was insufficient to support the jury's verdict, that the district court abused its discretion in permitting the government to use a computer-generated "Power Point" presentation during its opening statement, and that they were sentenced in violation of Apprendi v. New Jersey, 530 U.S. 466 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Burns and J. Harden claim that the district court erred in denying their motions to suppress evidence gathered during searches of Burns's car and motel room. A. Harden, J. Harden, and Jordon argue that the district court erred in its determination of the amount of drugs for which they were held responsible. Jordon also claims that the district court failed to consider his motion for a downward departure based upon his qualification for a mitigating-role adjustment. In addition, the government cross-appeals the district court's decision to grant A. Harden, J. Harden, and Jordon four-level sentence reductions for having played a minimal role in the drug conspiracy. For the reasons set forth below, we AFFIRM the judgment of the district court with respect to the convictions of all four defendants and the sentence of Burns, REVERSE the minimal-role reductions for A. Harden, J. Harden, and Jordon, and REMAND the case for the purpose of resentencing these three defendants.
Burns, the central figure in the alleged conspiracy, was convicted on Count 1 (engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848), Count 2 (participating in a conspiracy to distribute 20 kilograms of cocaine base in violation of 21 U.S.C. § 846), Counts 5, 6, and 7 (using a communications facility in the commission of a federal crime in violation of 21 U.S.C. § 843(b)), Count 8 (attempting to possess with the intent to distribute 30 ounces of cocaine base in violation of 21 U.S.C. § 846), and Count 9 (corruptly attempting to persuade and influence a witness in an official proceeding in violation of 18 U.S.C. § 1512(b)(1)). A. Harden, J. Harden, and Jordon were each found guilty on Count 2, and A. Harden and Jordon were also convicted on Count 3 (possessing with the intent to distribute one-half ounce of cocaine base in violation of 21 U.S.C. § 841(a)(1)) and Count 4 (traveling in interstate commerce to commit an unlawful activity, or aiding and abetting the same, in violation of 18 U.S.C. § 1952(a)(3)).
In June of 2000, Burns was sentenced to concurrent terms of life in prison on Counts 1 and 8, as well as to 48 concurrent months on Counts 5, 6, and 7, and 120 concurrent months on Count 9. Count 2 was dismissed against Burns after the jury verdict because it was considered as a lesser-included offense within the continuing criminal enterprise count. A. Harden received a sentence of 188 concurrent months in prison on Counts 2 and 3, and 60 concurrent months on Count 4. J. Harden received a sentence of 168 months in prison on Count 2. Jordon was sentenced to 151 concurrent months in prison on Counts 2 and 3, and 60 concurrent months on Count 4. A. Harden, J. Harden, and Jordon also received five years of supervised release. In calculating their offense levels, the district court granted A. Harden, J. Harden, and Jordon four-level reductions for having played a minimal role in the conspiracy pursuant to United States Sentencing Guidelines § 3B1.2(a). These appeals followed.
Most of the evidence against Burns and his codefendants came from the testimony of witnesses who, after their arrests on drug charges, cooperated with the government in its investigation into Burns's suspected drug-trafficking activities. Each of these witnesses, including Mary Baker, Carol Baldwin, Paul Green, Lee Keene, Chris Porter, Larry Trujillo, and Jamie Walker, testified at trial that Burns supplied crack cocaine to themselves or others, and that A. Harden, J. Harden, or Jordon drove or otherwise assisted Burns, Between November of 1997 and January of 1999, Burns distributed multiple kilograms of crack cocaine per week with the help of his codefendants, as well as Paul Green, Lee Keene, Eugene West, Tio West, and Burns's then-girlfriend "Tia." Burns, A. Harden, and Jordon were adults at all times during this period, but J. Harden did not turn 18 years old until March 25, 1998.
During the summer of 1998, A. Harden, J. Harden, Jordon, and, on occasion, Eugene West weighed and packaged crack cocaine at Baker's Covington, Kentucky apartment. The usual practice was for A. Harden, J. Harden, and Jordon to process the crack cocaine while Burns watched. At times, A. Harden processed it alone. After the drugs were packaged, Burns sent J. Harden or Jordon to bring buyers to Baker's apartment to make purchases. A. Harden, J. Harden, and Jordon, as well as Eugene and Tio West, sold crack cocaine under Burns's direction. Baker also purchased crack cocaine from Burns through J. Harden, and carried crack cocaine for Burns, J. Harden, Jordon, and Eugene West until her arrest on drug charges in September of 1998. During a visit to Burns in Cincinnati in December of 1998, Baker observed Burns, A. Harden, J. Harden, Eugene West, and Tio West buy and process crack cocaine, as well as discuss crack cocaine sales.
Baldwin met Burns in January of 1998, when Burns delivered crack cocaine to the apartment of Porter, Baldwin's boyfriend. She was present on several subsequent occasions when Burns, accompanied by J. Harden, delivered crack cocaine to Porter. J. Harden sometimes delivered the crack cocaine alone, as did Burns's girlfriend "Tia." After Baldwin was arrested in March of 1998 for distributing crack cocaine that her boyfriend Porter had purchased from Burns, Burns posted Baldwin's bond.
Porter was also arrested in March of 1998 for the possession of crack cocaine. He began buying crack cocaine from Burns in December of 1997, and did so approximately every other day until his arrest. Porter, like Baldwin, testified that J. Harden usually accompanied Burns when Burns delivered the crack cocaine. The three grams of crack cocaine that Porter sold to an undercover police officer when he was arrested came from Burns. After Porter was subpoenaed to testify in the federal grand jury investigation, Burns told him to deny purchasing crack cocaine from him, and to tell the grand jury that they knew each other only because they played basketball together.
Green purchased crack cocaine from Burns, which he would then resell, from October of 1997 until the spring of 1998. J. Harden and Jordon were observed by Green carrying and selling crack cocaine during this period of time. In the spring of 1998, Green paid A. Harden $200 for selling two grams of crack cocaine on Green's behalf.
Keene, one of Burns's largest distributors, purchased five to six ounces of crack cocaine from Burns on a daily basis, or approximately one kilogram of crack cocaine each week, from April of 1998 until his arrest on drug charges in September of that year. In total, Keene bought at least 24 kilograms of crack cocaine from Burns, for which Keene paid between $20,000 and $24,000 per kilogram. Keene also saw Jordon sell crack cocaine at least a dozen times. Burns, who lived in Clifton, Ohio, typically traveled with A. Harden, J. Harden, Jordon, or Green to make crack cocaine deliveries to Keene's residence in Covington, Kentucky. Burns rarely possessed the drugs himself; instead, he had either A. Harden, J. Harden, or Jordon carry them on his behalf.
Trujillo bought, in total, approximately two kilograms of crack cocaine from Burns between May and August of 1998. He observed that J. Harden or Jordon typically delivered the crack cocaine to him on Burns's behalf.
Walker received deliveries of crack cocaine once or twice a week, for which Burns received $700 per ounce, from 1997 until Walker's arrest in May of 1998 for possessing crack cocaine that he had bought from Burns. According to Walker, these deliveries were made by either Burns, J. Harden, or Jordon.
While incarcerated and awaiting the trial of his case, Keene agreed to cooperate with the government by contacting Burns in an attempt to dispose of an amount of crack cocaine that Keene had hidden at his residence. Keene called Burns from the detention center on January 22, 1999. During the recorded conversation, Keene agreed to return to Burns 30 ounces...
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