U.S.A. v. Crozier

• Decision Date: 24 April 2001
• Docket Number: Nos. 99-6561,s. 99-6561
• Citation: U.S.A. v. Crozier, 259 F.3d 503 (6th Cir. 2001)
• Parties: (6th Cir. 2001) United States of America, Plaintiff-Appellee, v. David Earl Crozier (99-6561); Charles W. Burton (99-6567), Defendants-Appellants. United States of America, Plaintiff-Appellant, v. Charles W. Burton, Defendant-Appellee. /6567/6629 Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 503

259 F.3d 503 (6th Cir. 2001)

United States of America, Plaintiff-Appellee, v.David Earl Crozier (99-6561); Charles W. Burton (99-6567), Defendants-Appellants.

United States of America, Plaintiff-Appellant, v.Charles W. Burton, Defendant-Appellee.

Nos. 99-6561/6567/6629

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: April 24, 2001

Decided and Filed: August 2, 2001

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Steve H. Cook, ASSISTANT UNITED STATES ATTORNEY, Knoxville, Tennessee, for Plaintiff.

Randall E. Reagan, LAW OFFICES OF PETER G. ANGELOS, Knoxville, Tennessee, Gary W. Lanker, LAW OFFICE OF GARY W. LANKER, Memphis, Tennessee, for Defendants.

Before: MARTIN, Chief Judge; MOORE, Circuit Judge; O'MALLEY, District Judge.^*

OPINION

BOYCE F. MARTIN, JR., Chief Judge.

Following a bench trial, the district court found David Earl Crozier and Charles W. Burton guilty of conspiracy to distribute and conspiracy to possess with intent to distribute controlled substances in violation of 21 U.S.C. § 846.Additionally, the district court convicted Burton of possession with intent to distribute Schedule II, Schedule III, and Schedule IV controlled substances in violation of 21 U.S.C. § 841(a)(1); robbery of a pharmacy in violation of 18 U.S.C. §§ 2118(a) and (c); using a firearm during the commission of both the drug conspiracy and the robbery in violation of 18 U.S.C. § 924(c); and being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)and924(e).Both defendants appeal their convictions on numerous grounds.The United States cross-appeals the district court's sentencing decision to credit Burton with six hundred fifty days time served.For the following reasons, we affirm both defendants' convictions, vacate Burton's sentence, and remand for resentencing.

I.

A.

Because both defendants challenge the sufficiency of the evidence for their convictions, we must present the facts in some detail.For clarity, we have divided the facts according to discrete criminal activities.

1.The Tennessee Rite-Aid Robbery

On November 26, 1995, two armed gunmen robbed the Rite-Aid Drug Store in Clinton, Tennessee, and absconded with numerous pharmaceutical drugs, including Schedule II, Schedule III, and Schedule IV controlled substances.During the robbery, one of the robbers (later identified as Burton) repeatedly asked Katrina DeBusk, the Rite-Aid pharmacist, about the location of several drugs, including Dilaudid pills and morphine.Several days after the robbery, DeBusk helped police prepare a composite sketch of the first suspect in about fifteen minutes.Police worked on a composite of the second suspect (again, later identified as Burton) for approximately three hours but failed to produce a sketch satisfactory to DeBusk.

Approximately one month later, DeBusk and Shelly Simonds, the only other Rite-Aid employee present during the robbery, separately identified Burton as one of the robbers from a photographic line-up.The Clinton Police Department, which uses black-and-white mug shots, had obtained Burton's photograph from the Lexington, Kentucky, Police Department, which uses color mug shots.Accordingly, Burton's photograph was the only color photograph shown to the witnesses.On March 6, 1998, both witnesses again identified Burton as the perpetrator, this time from a live line-up.Burton was the only person represented in both the photo line-up and the live line-up.

Although neither witness was able to identify Crozier as Burton's accomplice during the robbery, Crozier's brother-in-law, Richard Randolph, testified at trial that in early December, Crozier showed him a bag containing bottles of pharmaceutical drugs and told him that Crozier and Burton had obtained the drugs by robbing a Tennessee drugstore.

2.The Kentucky Drug Sales

In late November or early December 1995, in Lexington, Kentucky, Clayton Hobbs arranged for Burton to sell some drugs to Christopher Tucker.Hobbs drove Burton and an unidentified third man in a small car to Tucker's shop where Burton sold Tucker two boxes of pharmaceutical drugs.Tucker gave Burton $1,800 in one-hundred dollar bills.Tucker was unable to identify Crozier as the third man.

The next day, as previously agreed, Burton and Hobbs returned to Tucker's shop, where Tucker gave Burton an additional one thousand dollars in one-hundred dollar bills.Tucker testified that this time, Burton and Hobbs were in a Cadillac Eldorado.On December 1, Burton paid six hundred dollars cash to a pawn shop for his previously-pawned Cadillac Eldorado.The United States thus argues that although Tucker could not recall the exact date of the drug sale, the drugs must have been sold on November 30, with the follow-up payment occurring on December 1.

3.Casing the Lexington, Kentucky, Rite-Aid

At approximately 4 p.m. on December 1, security personnel for the Rite-Aid Drug Store in Lexington observed Burton and Crozier enter the store together, walk around separately, and eventually meet up at the pharmacy.Burton made a purchase and left the store, only to return a short time later, stay awhile, then leave.Burton again returned and after fifteen or twenty minutes, met up with Crozier.The two split up again, ultimately leaving the store separately.A short while later, Burton again returned, and spent approximately five minutes paying particular attention to the cash registers' and employees' locations.Crozier also re-entered the store but remained near the front.Burton finally ended this episode by placing a Tylenol bottle in his pocket.When confronted by security, a fight ensued, resulting in Burton's arrest and Crozier fleeing the scene.Police found syringes, $1,557 in cash (including fifteen one-hundred dollar bills), and a number of Dilaudid pills on Burton.Shortly after Burton's arrest, his girlfriend pawned two handguns, one of which matched the description DeBusk had given of the gun she saw during the Tennessee Rite-Aid robbery.

On December 6, police officers executed a parole violation warrant on Burton.It was while Burton was being held on that charge that the Lexington Police Department forwarded Burton's color mug shot to the Clinton Police Department in Tennessee.Burton remained incarcerated for parole violations for the remaining time relevant to this appeal.

4.The Somerset, Kentucky, Drugstore Burglary

On February 8, 1996, Randolph and Crozier's son, Brett, burglarized a Somerset, Kentucky, drugstore and brought the drugs to Crozier.Some of those drugs were then taken to Clayton Hobbs, while Crozier, Randolph, and a man named Charlie Henderson sold the morphine obtained in the burglary to someone in Georgetown, Kentucky, for one thousand dollars.

During the time relevant to this appeal, Crozier was living on Limestone Street in Somerset, while Crozier's wife lived on White Street.Although Crozier often visited and occasionally stayed overnight at his wife's home, he maintained his own residence.On February 12, police officers executed search warrants at both the Limestone Street and White Street residences.The search of Crozier's Limestone Street residence revealed one bottle of pharmaceutical drugs and a ledger reflecting indebtedness to Crozier by Burton for one thousand dollars, and by "Clayton" for eight hundred dollars.The search of Crozier's wife's White Street residence revealed two bags containing a large number of pharmaceutical drugs in wholesale-sized bottles, and eight-hundred forty-five dollars in Crozier's wallet.Some of those bottles were traceable to the Somerset drugstore and others were consistent with drugs taken during the Tennessee Rite-Aid robbery.Although Crozier was present at the White Street address during the search, Crozier's fingerprints were not found on any of the seized booty.

B.

The grand jury in the Eastern District of Tennessee, in a second superseding indictment, charged Burton and Crozier with conspiracy to distribute and conspiracy to possess with intent to distribute controlled substances; possession with intent to distribute Schedule II, Schedule III, and Schedule IV controlled substances; robbery of a pharmacy; using a firearm during the commission of both the drug conspiracy and the robbery; and being felons in possession of firearms.

The United States initially brought Burton into Tennessee by serving a writ of habeas corpus ad prosequendum on the Kentucky prison where Burton was incarcerated.In April 1996, the United States agreed to return Burton to Kentucky pending trial.On September 10, the United States filed a detainer with the Kentucky prison, officially informing it that Burton had federal criminal charges pending in the Eastern District of Tennessee.On November 20, Burton was returned to the Tennessee district by means of a second writ of habeas corpus ad prosequendum.¹

Following a three-day bench trial, the district court found Burton guilty on all counts and sentenced him to forty-six years and ten months imprisonment, plus six years supervised release, to be served following completion of Burton's previously imposed Kentucky prison sentence.Additionally, the district court granted Burton six hundred fifty days credit for the time he had spent in Tennessee awaiting trial.The district court found Crozier guilty of only the conspiracy charge and sentenced him to seventeen years and eleven months imprisonment, plus three years supervised release.Burton and Crozier timely appealed their convictions on numerous grounds.The United States timely cross-appealed Burton's award of credit for time served.

II.

Burton first argues that the district court erred in failing to suppress DeBusk's and Simonds's pre-trial and in-court identifications of him as one of the Tennessee Rite-Aid robbers.We review a district court's factual findings on a motion to suppress for clear error, and its legal conclusions de novo.S...