U.S. v. Carter

• Decision Date: 23 March 2007
• Docket Number: No. 05-3391.,No. 06-1365.,05-3391.,06-1365.
• Citation: 481 F.3d 601
• Parties: United States of America, Appellee, v. LaQuan Dwayne CARTER, also known as "Quan," also known as "Q-Ball," Appellant. United States of America, Appellee, v. Michael Greenlaw, also known as "Mikey," Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

481 F.3d 601

United States of America, Appellee, v. LaQuan Dwayne CARTER, also known as "Quan," also known as "Q-Ball," Appellant.

United States of America, Appellee, v. Michael Greenlaw, also known as "Mikey," Appellant.

No. 05-3391.

No. 06-1365.

United States Court of Appeals, Eighth Circuit.

Submitted: September 26, 2006.

Filed: March 23, 2007.

Daniel L. Gerdts, argued, Minneapolis, MN, for appellant Carter.

Kassius O. Benson, argued, Minneapolis, MN, for appellant Michael Greenlaw.

David P. Steinkamp, Asst. U.S. Atty., argued, Minneapolis, MN, for appellee.

Before MURPHY, HANSEN, and RILEY, Circuit Judges.

RILEY, Circuit Judge.

The district court sentenced Michael Greenlaw (Greenlaw) to 442 months' imprisonment and LaQuan Carter (Carter) to 405 months' imprisonment following their convictions on drug and firearms charges, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and (B) and 846, and 18 U.S.C. §§ 924(c) and (o), 1959 and 1961. In this consolidated appeal, Greenlaw appeals the district court's (1) denial of his motion to sever the trial, (2) denial of his request to represent himself, and (3) sentence of 442 months' imprisonment. Carter appeals the district court's (1) denial of his Batson challenge,¹ and (2) finding that sufficient evidence supported his conviction of conspiracy to distribute crack cocaine. For the reasons stated below, we vacate Greenlaw's sentence and remand to the district court for resentencing. In all other respects, we affirm the judgment of the district court.

I. BACKGROUND

Greenlaw and Carter belonged to a gang named the "Family Mob," which sold crack cocaine on the south side of Minneapolis. From 1996 until his arrest in 1999, Norman Toney (Toney) supplied the Family Mob with cocaine, which Family Mob members cooked into crack cocaine and sold on the streets.

Family Mob members used their collective efforts to sell an estimated two to three kilograms of crack cocaine per week. For example, one member would hold the crack, another would hold the money, another would carry a gun for security purposes, and another would serve as lookout. Family Mob members hid the crack cocaine near them while on the street rather than carry it on their person or carried the crack in their mouths to be swallowed if police approached. They also hid guns in others' houses and basements to avoid being caught in possession of the firearms. Family Mob members discussed the location of these guns so the guns were available to them when needed.

The Family Mob established and defended a territory in south Minneapolis to sell crack cocaine. When the presence of Family Mob members alone was not enough to keep competitors out of their territory, the members employed intimidation and violence to defeat competition. For example, James Hicks (Hicks), a Family Mob member, testified that, on May 10, 1997, Carter and other Family Mob members were on the south side of Minneapolis dealing drugs when a confrontation with nonmembers occurred. According to Hicks, when the non-members returned to the area, Carter responded by firing a gun at their car.

Another incident occurred in October 1998, when Robert Lewis (Lewis), a member of a rival gang, the "Bogus Boys," shot and killed Family Mob member Daryl Bellamy (Bellamy). Family Mob member Everett Jones (Jones) testified he and Greenlaw responded by dynamiting Lewis's home. Hicks explained the Family Mob had to respond to Bellamy's death because otherwise "[m]ore people would have been coming over where we at trying to cause us bodily harm. Trying to shoot us, take guys' money, our drug clientele."

After the arrests of several Family Mob members, police recovered numerous weapons, including a .9 millimeter handgun with laser sight, an AR-15 rifle, a .40 caliber handgun, a Davis .38 caliber handgun, a "ball and cap revolver," a .20 gauge sawed-off shotgun, a .44 magnum, a .45 semi-automatic handgun, a .9 millimeter semi-automatic handgun, a .38 caliber pistol, a .9 millimeter Luger, and a Tech .9 millimeter handgun. In addition, police recovered approximately 240 grams of crack cocaine and nearly two kilograms of cocaine.

Eight defendants were indicted on various drug and firearm charges. Six of the defendants pled guilty, but Carter and Greenlaw elected a jury trial. The counts against both Carter and Greenlaw included conspiracy to distribute in excess of fifty grams of crack cocaine and conspiracy to possess firearms during and in relation to a drug trafficking crime. Greenlaw's charges also included two counts of carrying a firearm during and in relation to a drug trafficking crime and one count of carrying a firearm during a crime of violence.²

Following a two-week joint trial, the jury returned verdicts of guilty against both Carter and Greenlaw on all counts except one. Greenlaw was acquitted on one of two counts of carrying a firearm during a drug trafficking crime.

II. DISCUSSION

A. Greenlaw's Motion to Sever

Greenlaw first argues the district court erred in denying his motion to sever the trials. Greenlaw moved for severance of the trials during a pretrial hearing. The district court denied his request. Greenlaw did not renew his motion at the close of the government's case or at the close of all the evidence. Because of this omission, we review the denial of the motion for plain error. United States v. Haskell, 468 F.3d 1064, 1070 (8th Cir.2006).³ We will "reverse only if there was misjoinder which had a substantial and injurious effect or influence on the verdict." Id.

Greenlaw contends severance was necessary because the jury was unable to compartmentalize the evidence. Greenlaw claims he was unfairly prejudiced in a complex case of multiple separate criminal acts by evidence relevant only to Carter. Greenlaw specifically points to the testimony of Tasha Humphries (Humphries), who testified Carter shot her boyfriend. Because Humphries failed to state Greenlaw was not present during that incident, and because Greenlaw and Carter were sitting next to each other in the courtroom, Greenlaw contends the jury may have improperly considered Humphries's testimony against him.

However, Greenlaw was never charged with the shooting. Humphries's testimony applied only to Carter, did not implicate Greenlaw in any way, and did not prevent Greenlaw from presenting a defense. Id. Greenlaw fails to demonstrate the jury was unable to compartmentalize this evidence as it related to Greenlaw and Carter. To the contrary, the fact Greenlaw was acquitted on one of the charges against him, i.e., carrying a firearm during a drug trafficking crime, indicates the jury considered the evidence against each defendant separately. Here, the district court did not abuse its discretion or plainly err in denying Greenlaw's severance request.

B. Greenlaw's Request for Self-Representation

Greenlaw also argues the district court erred in denying his request to represent himself at trial. We do not agree. Before the court can consider if a defendant may represent himself, the defendant is required to make a clear and unequivocal request for self-representation. United States v. Light, 406 F.3d 995, 998-99 (8th Cir.2005).

Here, the government claims Greenlaw never made a clear and unequivocal request for self-representation. Greenlaw, however, contends the following exchange shows otherwise:

The Court: Are [your motions] having to do with getting a new lawyer? Are you asking to represent yourself or what are you going to do?

Greenlaw: No, I'm asking to be a co-counsel, to be appointed with a different attorney and also be a co-counsel.

The Court: What do you mean by "a co-counsel?"

Greenlaw: To be entitled to all evidence that's being used against me, for my records, so I can prepare myself for trial.

Based on this colloquy, as well as prior demands for new counsel, Greenlaw argues he made a clear and unequivocal request to represent himself. However, the record and these arguments fail to show a clear and unequivocal request for self-representation. Greenlaw never adequately invoked his right to self-representation. Id. at 999.

C. Greenlaw's Sentence

Greenlaw further claims the district court erred in sentencing him to 442 months' imprisonment. First, Greenlaw argues the district court erred by denying his motion for downward departure. Greenlaw specifically contends his criminal history was overstated and should have been category II instead of category III. However, Greenlaw does not assert the district court failed to recognize it had the authority to depart, and nothing in the record suggests the district court was unaware of its authority to depart. See United States v. Andreano, 417 F.3d 967, 970 (8th Cir.2005), cert. denied, ___ U.S. ___, 126 S.Ct. 1118, 163 L.Ed.2d 925 (2006) (holding "[t]he discretionary denial of a motion for downward departure is unreviewable unless the court failed to recognize its authority to depart."). Consequently, on this record, the district court's discretionary denial of a motion for downward departure is unreviewable.

Greenlaw next argues the district court erred in sentencing him to 442 months. Greenlaw contends the district court abused its discretion and he should have received only a 15-year sentence. We disagree. An abuse of discretion occurs if the district court failed to consider a relevant factor that should have received significant weight, gave significant weight to an improper or irrelevant factor, or considered only appropriate factors but committed a clear error of judgment in weighing those factors. United States v. Haack, 403 F.3d 997, 1004 (8th Cir.), cert. denied, ___ U.S. ___, 126 S.Ct. 276, 163 L.Ed.2d 246 (2005). Greenlaw does not indicate what factors the court failed to consider or should have considered to arrive at a 15-year sentence. Greenlaw makes only vague assertions regarding his "age and historical characteristics" which do not establish the district court abused its discretion.

Here,...