U.S. v. Carter, 91-1830

• Decision Date: 08 July 1992
• Docket Number: No. 91-1830,91-1830
• Citation: 969 F.2d 197
• Parties: 36 Fed. R. Evid. Serv. 76 UNITED STATES of America, Plaintiff-Appellee, v. Roderic CARTER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 197

969 F.2d 197

36 Fed. R. Evid. Serv. 76

UNITED STATES of America, Plaintiff-Appellee, v. Roderic CARTER, Defendant-Appellant.

No. 91-1830.

United States Court of Appeals Sixth Circuit.

Argued April 3, 1992.

Decided July 8, 1992.

Ronald W. Waterstreet, Asst. U.S. Atty. (argued and briefed), Detroit, Mich., for U.S.

Brian M. Legghio (argued and briefed), Roseville, Mich., for Roderic Carter.

Before: MERRITT, Chief Judge, and MARTIN and SILER, Circuit Judges.

BOYCE F. MARTIN, Jr., Circuit Judge.

Roderic Carter appeals his conviction for (1) conspiracy to possess with intent to distribute and distribution of cocaine, in violation of 21 U.S.C. § 846; and (2) aiding and abetting the distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. On appeal, Carter challenges the breadth of the evidence admitted against him. For the following reasons, we reverse the judgment of the district court.

In September 1989, a confidential informant allowed Federal Bureau of Investigation agents based in Cleveland, Ohio, to monitor telephonic cocaine negotiations between him and Wendell Daniels. Daniels was based in Detroit, Michigan. During the initial stages of the investigation, the informant called Daniels numerous times. During these telephone calls, the two men talked about the informant purchasing cocaine from Daniels. On October 10, the informant called Daniels to arrange a purchase of ten kilograms of cocaine, but Daniels told the informant that he was waiting to hear from his supplier. After Daniels and the informant had finished their conversation, Roderic Carter, the defendant in this case, called Daniels for reasons that are not apparent from the record. Within minutes after the Daniels-Carter conversation, Daniels called the informant and left a message for the informant to call Daniels. When the informant called Daniels, Daniels told the informant that he was waiting on his supplier to supply him with some cocaine. After this second Daniels-informant call, Carter telephoned Daniels twice. Despite all these conversations, any proposed cocaine deal eventually fell through.

Between October and December, there were numerous recorded telephone conversations between the informant and Daniels about the purchase and sale of cocaine. During this same time period, Carter and Daniels talked frequently on the telephone. On December 1, undercover FBI Agent Frederick Snellings drove the informant from Cleveland to Detroit where the informant met Daniels at a gasoline station. Snellings and the informant went to Daniels' residence and from there Daniels paged his supplier's beeper. A short time after Daniels paged the supplier, Carter called Daniels and Daniels advised Carter to hurry up because the informant was waiting for the cocaine. Within minutes after this telephone conversation, Carter arrived at Daniels' residence. After agreeing on the price of $13,500 for 500 grams of cocaine and being paid $10,000 of the $13,500, Carter informed Daniels that the cocaine would be of better quality than some of the cocaine that Carter had previously supplied Daniels. Carter then informed Daniels that "his woman" (Sonya Funchess) would deliver the cocaine. After leaving the Daniels residence, Carter called Daniels and told him Funchess would deliver the cocaine in five or ten minutes. After a few minutes had past, Funchess delivered approximately 500 grams of cocaine to the informant.

The FBI's investigation continued past the December 1 cocaine transaction between Carter and the informant. On December 18, Agent Snellings and another FBI agent met Daniels and Frank Renfroe at a Detroit gasoline station, which was the same station at which Agent Snellings and the informant had met Daniels on December 1. The four individuals then drove to Daniels' residence and from there Renfroe called Odolph Daniels and directed him to deliver the cocaine. Odolph Daniels and Jason Young delivered the cocaine to the Daniels' residence, and federal agents arrested Renfroe, Young, Wendell Daniels, and Odolph Daniels.

A grand jury subsequently indicted Carter and Funchess for (1) conspiracy to possess with intent to distribute and distribution of cocaine, in violation of 21 U.S.C. § 846; and (2) aiding and abetting the distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The indictment charged that Carter, Funchess, Young, Wendell Daniels, and Odolph Daniels were involved in a single conspiracy, which ran from September 27, 1989, until December 18, 1989.

Because the grand jury indicted Carter and Funchess jointly, the two individuals received a consolidated trial. At trial, FBI Agent Snellings testified first about the December 1 cocaine transaction involving Wendell Daniels, Carter, and Funchess. When Agent Snellings began to testify about the December 18 cocaine transaction involving Renfroe, Young, Odolph Daniels, and Wendell Daniels, Carter objected and argued that evidence regarding the December 18 cocaine transaction was inadmissible because it was unfairly prejudicial and constituted evidence of a second, separate conspiracy. The district court overruled Carter's objection and allowed Agent Snellings to testify about the December 18 transaction and also allowed the use of exhibits that were associated with the December 18 transaction. In an effort to demonstrate that Carter was not associated with the December 18 transaction, Carter's attorney cross-examined Agent Snellings about Carter's involvement in the December 18 transaction. During this cross-examination, Agent Snellings admitted that he had no knowledge or evidence that Carter was associated in any way with the December 18 transaction.

Next, over Carter's objections, the government offered a series of witnesses who testified about financial matters related to Carter and/or Funchess. For example, a representative of a Detroit appliance store testified that from approximately January 1989 until December 1990 Carter purchased over $3,000 worth of appliances from the store. These purchases included a freezer, an air conditioner, a gas dryer, four televisions, and a stereo. Later, a representative of the Ford Motor Credit Corporation and a representative from a Detroit bank each testified that their respective organizations had received automobile loan applications from Carter. On the applications, which the court admitted into evidence, Carter had stated he was employed at a place called the Tex Market.

In an effort to prove that Carter did not work at the Tex Market or any other place, the government produced two witnesses. Again, Carter objected to both witnesses' testimony. The first witness, who was employed by the local electric company, produced documents and testified that the electric company had not provided electrical service to the market since 1987. A second witness, FBI Special Agent Demetri Friedrich, produced documents and testified that the market had not filed federal income tax returns for the calendar years 1987 through 1990. The agent also introduced evidence that Carter did not file federal income tax returns for the calendar years 1985 through 1990.

At the close of the evidence, Carter asked the district court to instruct the jury on multiple conspiracies and submitted a proposed instruction. The district court refused to give an instruction for multiple conspiracies and merely gave the jury an instruction for a single conspiracy. During deliberations, the jury sent ...