U.S. v. Crayton

• Decision Date: 05 February 2004
• Docket Number: No. 02-5738.,02-5738.
• Citation: 357 F.3d 560
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lawrence Edward CRAYTON, Jr., also known as Manny Harris and Alex Winters, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

357 F.3d 560

UNITED STATES of America, Plaintiff-Appellee, v. Lawrence Edward CRAYTON, Jr., also known as Manny Harris and Alex Winters, Defendant-Appellant.

No. 02-5738.

United States Court of Appeals, Sixth Circuit.

Argued: December 9, 2003.

Decided and Filed: February 5, 2004.

COPYRIGHT MATERIAL OMITTED

William Yesowitch (argued and briefed), Barber, Banaszynski & Glidewell, Louisville, KY, for Appellant.

Candace G. Hill (argued and briefed), Terry M. Cushing (briefed), Assistant United States Attorneys, Louisville, KY, for Appellee.

Lawrence Edward Crayton, Jr. (briefed), Lompoc, California, pro se.

Before ROGERS and COOK, Circuit Judges; COHN, District Judge.^*

OPINION

ROGERS, Circuit Judge.

Lawrence Crayton, Jr. (a/k/a Manny Harris, Alex Winters, and Terrell Mason) appeals his conviction of attempt, conspiracy, and possession of over five kilograms of cocaine with the intent to distribute. After receiving a tip from a police department in another state, the Louisville Metro Police searched boxes from an incoming cargo plane for a package addressed to "Alex Winters." After obtaining a warrant, the police opened the box, replaced the six kilograms of cocaine contained inside with filler, and delivered the package. Crayton, pretending to be Winters, signed for the package at the delivery address. Crayton and his cousin, Andre Alexander, sped away in a vehicle with the package. Crayton and Alexander were followed by the police, and at some point during the chase, the box was opened and tossed out of the vehicle. Both men were arrested. During a joint trial, Alexander was acquitted, but the jury could not reach a verdict as to Crayton. A second jury convicted Crayton of all three charges, and he was sentenced to three concurrent life terms of imprisonment. Because the district court did not violate the "rule of consistency" or err in deciding any of the other issues Crayton raises on appeal, we affirm the judgment of the district court.

FACTS

On April 15, 1998, Los Angeles, California, Police Detective George Osborne, with the Narcotics Interdiction Unit, received a tip that a box shipped via UPS and bound for Louisville was suspicious because the return address was false. Osborne then alerted the Louisville Metro Police Department to the suspicious box.

The Metro Police K-9 unit was waiting at the UPS depot when the suspicious box arrived. The dog alerted on one box shipped from California to Louisville, and the police got a warrant for the package. The brown cardboard box was opened from the bottom so as not to damage the label on the top. Inside, the police found Styrofoam peanuts and two packages wrapped in Christmas paper and cellophane tape. Each package contained approximately three kilograms of cocaine. The police then put a 4.5 gram sample of cocaine into the box along with dummy packages of non-narcotic filler wrapped to resemble the cocaine packages. A tracking device was added, and the box was resealed.

Police set up surveillance around 541 North 44th Street, the destination listed on the label of the box addressed to "Alex Winters." A detective disguised in a UPS uniform delivered the box to the address. The detective got out of the UPS truck and knocked on the door of the house, but no one answered.¹ At this point, Crayton pulled up to the house in a blue Suburban and stated that he was Mr. Winters.² Crayton signed for the package as Alex Winters. At this time, the detective noticed there was another person in Crayton's vehicle. That person was Andre Alexander, Crayton's cousin.

Crayton and Alexander left in the Suburban, but the police followed the vehicle without lights and sirens. During the pursuit, Crayton and Alexander stopped for five minutes on the shoulder of a road. The officers described that stop by Crayton and Alexander as a countersurveillance move to see if anyone was following them. After several minutes, Crayton asked Alexander to open the box. While opening the box, Alexander found the sample cocaine bag left in the box by the police, and he tossed the box and its contents out of the car window and into an alley. Crayton's vehicle then sped up, the police turned on their lights and sirens, and a chase began. When Crayton drove into a high traffic area, the police stopped the vehicle and arrested Crayton and Alexander.

During the arrest, Crayton identified himself as "Manny Harris," and he claimed to have no idea what was in the box. However, the police found the opened box near an alley along the route Crayton had taken.

Manny Harris was charged with trafficking in cocaine and tampering with physical evidence. Harris posted bond and fled. On July 7, 1998, a federal grand jury issued an indictment against Harris and Alexander. Count 1 of the indictment charged Harris with conspiring with Alexander and unknown persons to possess cocaine with the intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Count 2 charged Harris and Alexander with attempting to possess cocaine with the intent to distribute. Count 3 charged them with actually possessing cocaine with the intent to distribute. Crayton, then going by the name of Terrell Mason, and Alexander were arrested on January 2 1999 in Los Angeles. In September 2000, a superseding indictment was issued in which Crayton was named specifically and the quantity, six kilograms, of cocaine was added to the indictment.

A trial was held in December 2000, and the jury acquitted Alexander but was unable to reach a verdict as to Crayton. Before his second trial, Crayton moved for a bill of particulars, but the district court denied the motion. Crayton was convicted on all counts in his second trial. He was sentenced to life in prison.

ANALYSIS

I. Effect of the Prior Acquittal of Alexander

Crayton makes a number of arguments based on the prior acquittal of his coconspirator Alexander. None have merit.

A. Powell's Effect on the Rule of Consistency

The district court properly denied Crayton's motion to dismiss the superseding indictment based on the rule of consistency, which would require that one coconspirator could not be convicted when all other co-conspirators are acquitted at the same trial, because that "rule" is no longer good law. Before his second trial, Crayton moved to dismiss the superseding indictment because the indictment still contained Alexander's name, even though Alexander had been acquitted as a co-conspirator at the previous trial. This court reviews de novo a district court's denial of a motion to dismiss an indictment on legal grounds. United States v. Campbell, 279 F.3d 392, 398 (6th Cir.2002); In re Ford, 987 F.2d 334, 339 (6th Cir.1992).

The rule of consistency at one time required "that, where all possible co-conspirators are tried together, and all but one are acquitted, the remaining conspirator's conviction must be reversed for lack of sufficient evidence." United States v. Walker, 871 F.2d 1298, 1304 n. 5 (6th Cir.1989) (dictum). However, the rule of consistency did not apply when co-conspirators were tried separately and all but one were acquitted. United States v. Roark, 753 F.2d 991, 995-96 (11th Cir.1985) (cited in United States v. Sachs, 801 F.2d 839, 845 (6th Cir.1986)). Likewise, if the charges against all but one alleged co-conspirator had been dismissed, the rule of consistency was inapplicable. Sachs, 801 F.2d at 845.

The Supreme Court's decision in United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984), rendered the so-called "rule of consistency" no longer good law. Before Powell, this court applied the rule of consistency in United States v. Williams, 503 F.2d 50 (6th Cir.1974). In Williams, a father and his adult son flew into a Cleveland airport, but one of their suitcases was lost. Williams, 503 F.2d at 52. The airline lost baggage department found the bag and discovered that it contained large amounts of cocaine and heroin. Id. The airline gave the bag to the Drug Enforcement Administration, who substituted the real narcotics with a non-narcotic substance and gave the bag to the son. Id. The agents followed the son to the motel room and eventually caught the father, son, and another man, Willie Johnson, attempting to flush the narcotics down the toilet. Id. All three men were charged with possession and conspiracy, and the jury found the father guilty of possession but could not reach a verdict as to the conspiracy of the father or the other two men. Id. Prior to the second trial, the possession charges against the son and Johnson were dismissed. Id. At the second trial, all three men were convicted of conspiracy. Id.

The court held that there was insufficient evidence to sustain Johnson and the son's conspiracy convictions. Id. at 54. The court then announced the "rule of consistency" by stating "[s]ince we have found that the convictions of Johnson and Williams, Jr. cannot stand, the conviction of Williams, Sr. must also fall. Where all other alleged co-conspirators are acquitted, the conviction of one person for conspiracy will not be upheld." Id.; see also United States v. Sachs, 801 F.2d 839, 845 (6th Cir.1986) (stating in dictum, "if co-conspirators are tried together, an acquittal on conspiracy charges as to all but one coconspirator mandates acquittal on conspiracy charges as to the remaining defendant").

Since we last applied the rule of consistency in Williams, a unanimous Supreme Court has held that inconsistent jury verdicts are permissible. See Powell, 469 U.S. at 68-69, 105 S.Ct. 471. The defendant in Powell was convicted of using the telephone to commit the felony of "conspiracy to possess with the intent to distribute and possession with intent to distribute cocaine," but she was acquitted of knowingly and intentionally possessing cocaine with the intent to distribute. Id. at 60, 105 S.Ct. 471. She argued that the verdicts were inconsistent because she was found guilty of conspiring to do something that she was...