U.S. v. Capps
| Decision Date | 10 March 1995 |
| Docket Number | 93-3720,93-3719,93-3721,Nos. 93-3718,s. 93-3718 |
| Citation | 48 F.3d 1220 |
| Parties | NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Timothy CAPPS, Dwayne Evans, Ray Parra, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before: BROWN, MARTIN, and BOGGS, Circuit Judges;
On April 29, 1993, a grand jury indicted Defendants-Appellants Timothy Capps, Dwayne Evans, and Raymond Parra for conspiring to distribute cocaine in violation of 21 U.S.C. Secs. 841 and 846. The grand jury also indicted each defendant for knowingly using a telephone to facilitate a drug offense, which violated 21 U.S.C. Sec. 843(b). In addition to these common charges, Evans was indicted for conspiring to import cocaine, a violation of 21 U.S.C. Sec. 963. A jury found them guilty on all counts. For these crimes, Capps was sentenced to 240 months in prison, Evans received 151 months, and Parra received 380 months. The defendants appealed.
All told, the defendants raise over twenty issues for our consideration. Most of these, however, simply challenge the sufficiency of the prosecution's evidence. For the reasons that follow, we affirm the defendants' convictions. However, because the district court did not properly apply the Sentencing Guidelines to the convictions for conspiring to distribute cocaine, we must vacate the defendants' sentences and remand for resentencing in accordance with this opinion.
A brief summary of the issues the defendants raise is as follows: First, does sufficient evidence support their conspiracy convictions? Second, did the district court err by admitting evidence under the co-conspirator exception to the hearsay rule? Third, does sufficient evidence support their convictions for using a telephone to facilitate a drug offense? Fourth, did the district court err by admitting Parra's weapons and bulletproof vest? Fifth, did the district court err by not allowing the defendants access to certain statements under the Jencks Act? Sixth, was the amount of cocaine imputed to the defendants for the purposes of sentencing pursuant to the conspiracy charge reasonably foreseeable, and was that amount distributed within the scope of each defendant's jointly undertaken criminal activity? Seventh, did the district court clearly err under the Sentencing Guidelines by enhancing Parra's offense level for possessing a firearm? And eighth, did the district court clearly err by enhancing Parra's offense level for his role in the conspiracy? We address these issues seriatim.
According to the first count of the indictment, the defendants and sixteen others conspired to distribute cocaine in the Cleveland area at least as early as February of 1990. This was not a small conspiracy. It involved over a million dollars worth of cocaine--at least fifty kilograms. At the heart of this conspiracy were two cousins, Paul and Brian Davis. Paul was the buyer and seller, and Brian was Paul's accountant and deliveryman. Brian would receive and deliver cocaine, collect drug debts, and keep track of the parties' varying balances in a ledger book which the police later seized. Paul and Brian were also the Government's star witnesses.
To support its case, the Government offered recorded telephone conversations, Brian Davis' ledger book, and the testimony of numerous co-conspirators. This evidence showed that, in all likelihood, the conspiracy began in the fall of 1990, when Paul Davis and Dwayne Evans travelled to the Bahamas two or three times to purchase cocaine. Davis would find the cocaine, and Evans would find a carrier, or "mule," who would carry the cocaine back to Cleveland. This arrangement worked well until Evans and one of his mules were arrested in Florida in January of 1991. After that, Davis and Evans decided to find a local supplier. By the spring of 1991, one of those suppliers was Raymond Parra. Parra would sell cocaine to Davis, who would sell it to others, including Capps and Evans, for resale. In the late summer of 1991, Parra stopped selling cocaine to Davis, but Davis found yet another supplier in Delroy Chance. Chance was also convicted on the conspiracy count, but did not file a timely notice of appeal.
Because this appeal involves only Capps, Evans, and Parra, we focus mainly on their relationship to the conspiracy, as well as their substantive violations under 21 U.S.C. Sec. 843(b), the illegal use of the telephone.
Capps began dealing drugs with the Davises as early as the spring of 1991. Brian Davis would usually deliver about an eighth of a kilogram to Capps, who would transform it into crack cocaine and sell it. Paul Davis talked to Capps about cocaine approximately once a week throughout the summer of 1991, and Brian Davis delivered cocaine to Capps about twenty times. In addition, Capps had his own personal code number for Brian Davis' pager, and called that pager over forty-one times in less than a thirty days. Finally, Capps was mentioned in Brian Davis' ledger book as owing him money for cocaine.
The telephone conversation which led to Capps' conviction under 21 U.S.C. Sec. 843(b) concerned a $600 debt. The conversation was with Paul Davis, and Paul did not remember if the money Capps owed was for drugs or gambling. However, Capps owed the money to Brian Davis, not Paul, and Brian did not gamble. Capps was convicted of conspiring to distribute cocaine and illegally using a telephone to facilitate cocaine distribution.
As mentioned earlier, Dwayne Evans aided Paul Davis in importing cocaine from the Bahamas as early as the fall of 1990. In Cleveland, Evans would sometimes supply Paul Davis with cocaine, and Davis would sometimes supply Evans. Brian Davis delivered up to a kilogram of cocaine to Evans more than a dozen times, which Evans would buy on credit or pay for in cash. Furthermore, Brian Davis' ledger book contained Evans' name and the balance he owed of cocaine and money.
Also, Evans made two calls which the jury found facilitated the conspiracy. In the first call, Paul Davis told Evans that he had some "change" for him. Paul testified that "change" meant drug money. In the second call, Evans asked Paul if he "had it together" so he could "zoom". Paul testified that this conversation referred to money Evans needed to travel to purchase cocaine. Evans was convicted of conspiring to distribute cocaine, as well as conspiring to import cocaine. He was also convicted of using a telephone to facilitate a drug offense.
Raymond Parra began supplying the Davises with cocaine in April or May of 1991. Parra would supply Paul Davis with between one and two kilograms every other week, which Paul would buy on credit. Brian Davis testified that he paid Parra thousands of dollars "no more than a dozen times," and that the largest payment was "not over $50,000." Brian also testified seeing Parra with seven or eight kilograms of cocaine at a house rented by Paul. Finally Paul Davis called Parra, and Parra asked him if he had "some change". Parra was convicted of conspiring to distribute cocaine and using a telephone to facilitate the distribution of drugs.
All three defendants claim that there was insufficient evidence to convict them of a conspiracy. In short, they argue that there was no conspiracy, but rather a number of independent buyer/seller relationships. In the alternative, they argue that this was not a single conspiracy, but a number of smaller ones.
In reviewing whether there is sufficient evidence to support a conviction, we view the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979). If, after doing so, we find that "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt," we must affirm the conviction. Id. Moreover, this court will not question the credibility of any witness. Credibility concerns the quality of the evidence, not its sufficiency to support a conviction. United States v. Sanchez, 928 F.2d 1450, 1457 (6th Cir.1991).
To prove a conspiracy under 21 U.S.C. Sec. 846, "the government is required to prove the existence of an agreement to violate the drug laws and that each conspirator knew of, intended to join, and participated in the conspiracy." United States v. Lee, 991 F.2d 343, 348 (6th Cir.1993). Circumstantial evidence alone is sufficient to prove the conspiracy's existence, and a formal agreement is unnecessary. United States v. Lloyd, 10 F.3d 1197, 1210 (6th Cir.1993) cert. denied, --- U.S. ----, 114 S.Ct. 1569 (1993). Rather, a tacit agreement is adequate. Id. Furthermore, the government does not need to prove that each conspirator knew every member of the conspiracy, or the full extent of the conspiracy; such facts may be inferred from the interdependence of the enterprise. Id. "One can assume that participants understand that they are participating in a joint enterprise because success is dependent on the success of those from whom they buy and to whom they sell." United States v. Bourjaily, 781 F.2d 539, 544 (6th Cir.1986), aff'd, 483 U.S. 171 (1987).
Viewing the evidence in the light most favorable to the prosecution, we conclude that there was adequate proof that a conspiracy existed among Parra, Evans, Capps, and the Davises. These defendants were involved in more than one-time deals. Parra regularly supplied Davis with large quantities of cocaine, and Davis regularly supplied Capps with smaller amounts. Capps would then turn that cocaine into crack and sell it to others. In operating this business, Capps depended on Paul Davis who depended on Parra, and vice versa. Evans supplied cocaine to Davis, and bought it from him. Thus, he also benefited from...
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