U.S. v. Curry, 89-7028

• Citation: 902 F.2d 912
• Decision Date: 05 June 1990
• Docket Number: No. 89-7028,89-7028
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Herman Lee CURRY, Haskell Watson, Jr., Jeffrey Lynn Howard, Ronald Jerome Hayes, Adam Butler, II, a/k/a Moo Moo, Sam Hayes, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 912

902 F.2d 912

UNITED STATES of America, Plaintiff-Appellee, v. Herman Lee CURRY, Haskell Watson, Jr., Jeffrey Lynn Howard, Ronald Jerome Hayes, Adam Butler, II, a/k/a Moo

Moo, Sam Hayes, Defendants-Appellants.

No. 89-7028.

United States Court of Appeals, Eleventh Circuit.

June 5, 1990.

Joel F. Alexander, III, Birmingham, Ala., for Haskell Watson, Jr.

Connie W. Parson, Birmingham, Ala., James R. Willis, Cleveland, Ohio, for Ronald Hayes and Adam Butler.

J. Harry Blalock, Birmingham, Ala. (court-appointed), for Sam Hayes.

Tommy Nail, Birmingham, Ala. (court-appointed), for Jeffrey Lynn Howard.

Roger C. Appell, Birmingham, Ala., for Herman Lee Curry.

Frank W. Donaldson, U.S. Atty., John C. Earnest, Asst. U.S. Atty., Birmingham, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before JOHNSON and ANDERSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.

ANDERSON, Circuit Judge:

This case arises out of a multi-defendant, multi-count trial. In addition to the appellants, the indictment charged Harold Singleton and "Jay." Singleton made a deal with the prosecution and testified at trial. Gerald Daniels (who the prosecution claimed was "Jay") was a co-defendant at trial. A mistrial was declared as to Daniels, and the district judge granted Daniels a judgment of acquittal because his name did not appear in the indictment (i.e., the indictment named only "Jay") and because the prosecution's evidence that Daniels was, in fact, "Jay" was not persuasive.

The appellants raise a number of issues on appeal: 1) Ronald Hayes claims that the evidence was insufficient to sustain his conviction of engaging in a continuing criminal enterprise (Count II) and that the district court's instructions to the jury on this count constituted plain error; 2) Butler and Ronald Hayes challenge their conviction for using a minor to assist in avoiding detection or apprehension in violation of 21 U.S.C. Sec. 845b(a)(2) (Count XVI); 3) appellants (excluding Sam Hayes ¹ ) claim that evidence was suppressed by the prosecution in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); 4) Sam Hayes, Howard, Curry, and Watson claim that they should be resentenced because the trial court erroneously ruled that mandatory minimum penalties under 21 U.S.C. Sec. 841(b)(1) (substantive offense) apply to offenses committed under 21 U.S.C. Sec. 846 (conspiracy to commit substantive offense); and 5) Butler and Ronald Hayes claim that they must be resentenced because they were sentenced without reference to the Sentencing Reform Act of 1984 which was upheld as constitutional in Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). ²

I. CONTINUING CRIMINAL ENTERPRISE

In addition to a number of other counts, Ronald Hayes was tried and convicted of engaging in a continuing criminal enterprise (CCE) in violation of 21 U.S.C. Sec. 848 (Count II). Ronald challenges his conviction on Count II, arguing that 1) the evidence was insufficient to show that he organized, managed, or supervised five persons as required by 21 U.S.C. Sec. 848 and 2) the district court's failure to instruct the jury that it must be unanimous as to which five persons Ronald supervised was plain error.

A. Sufficiency of the Evidence

The standard of review for sufficiency of the evidence claims is "whether the evidence adduced at trial could support any rational determination of guilty beyond a reasonable doubt." United States v. Powell, 469 U.S. 57, 67, 105 S.Ct. 471, 478, 83 L.Ed.2d 461 (1984) (citations omitted). In applying this standard, we view the evidence in the light most favorable to the verdict, making all reasonable inferences and credibility choices in support of the verdict. United States v. Russo, 796 F.2d 1443, 1455 (11th Cir.1986).

The evidence at trial clearly supports a guilty verdict. Singleton testified that he made trips to Florida and California to purchase cocaine for Ronald. He also testified that Ronald supplied Curry with the cocaine that Curry sold to Singleton. Ronald told Singleton that he could leave cocaine with "Pop" if Ronald was unavailable. "Tim" was arrested at one of Ronald's apartments when the police seized five ounces of cocaine. There was evidence at trial that Howard participated in several drug transactions for Ronald. "Jay" made drug exchanges for Ronald while Butler was allegedly Ronald's "right-hand man." Thus, the evidence demonstrates that the jury could have found that Ronald supervised Singleton, Curry, "Pop," "Tim," Howard, "Jay," and/or Butler.

B. Jury Unanimity

Ronald's second argument on this issue is that the district court's failure to instruct the jury that they had to be unanimous in deciding which five people Ronald supervised was plain error. Our decision in United States v. Raffone, 693 F.2d 1343, 1347-48 (11th Cir.1982), cert. denied, 461 U.S. 931, 103 S.Ct. 2094, 77 L.Ed.2d 303 (1983), squarely addresses this question and controls the disposition of this claim. In Raffone, we held that there is no plain error when a district court fails to instruct the jury as to unanimity regarding the supervision requirement in a CCE case.

II. SCOPE OF 21 U.S.C. Sec. 845b(a)(2)

21 U.S.C. Sec. 845b(a) (Supp.1989) provides:

(a) Unlawfulness

It shall be unlawful for any person at least eighteen years of age to knowingly and intentionally--

(1) employ, hire, use, persuade, induce, entice, or coerce, a person under eighteen year[s] of age to violate any provision of this subchapter or subchapter II of this chapter;

(2) employ, hire, use, persuade, induce, entice, or coerce, a person under eighteen years of age to assist in avoiding detection or apprehension for any offense of this subchapter or subchapter II of this chapter by any Federal, State, or local law enforcement official; ....

Appellants Butler and Ronald Hayes were indicted and convicted under Count XVI of violating subsection 845b(a)(2). They challenge this conviction on the ground that, under the facts of this case, they did not violate the subsection.

Ronald Hayes and Butler were driving Butler's car to meet Singleton for a drug transaction. They passed Singleton, who was pretending to work on a flat tire. They then drove across the street to a service station to get gas. At the service station, their car apparently broke down. Butler then called his nephew, a minor, and asked him to pick them up. Meanwhile, Singleton crossed the street and had a short conversation with Ronald. A few minutes later, the boy drove into the station in an old red pickup truck. Ronald and Butler then transferred the contents of Butler's car to the pickup. Butler drove the juvenile and Ronald across the street in the pickup. Singleton removed a blue nylon bag containing cocaine from his trunk. He handed the bag to Ronald, and Ronald gave Singleton a yellow plastic bag containing $50,885. At that point, Butler and Ronald were arrested.

Butler and Ronald Hayes contend we should apply the rule of lenity and conclude that their actions do not come within the scope of activity prohibited under 21 U.S.C. Sec. 845b(a)(2). The rule of lenity, however, is applicable only where there exists some ambiguity in both the statutory language and legislative history concerning the breadth of activity prohibited by a criminal statute. See United States v. Rodgers, 466 U.S. 475, 484, 104 S.Ct. 1942, 1948, 80 L.Ed.2d 492 (1984) (statute not sufficiently ambiguous to permit rule of lenity to control); Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 2252, 65 L.Ed.2d 205 (1980) ("Where Congress has manifested its intention, we may not manufacture ambiguity in order to defeat that intent"). When the statute's provisions clearly delineate the manner in which congressional objectives are to be realized, then the need to interpret a statute in the narrowest possible manner dissipates. McElroy v. United States, 455 U.S. 642, 658, 102 S.Ct. 1332, 1341, 71 L.Ed.2d 522 (1982) ("[A]lthough 'criminal statutes are to be construed strictly ... this does not mean that every criminal statute must be given the narrowest possible meaning in complete disregard of the purpose of the legislature' " (quoting United States v. Bramblett, 348 U.S. 503, 509-10, 75 S.Ct. 504, 508, 99 L.Ed. 594 (1955) (footnote omitted)).

As to this issue, we see no ambiguity in the statute or the legislative history. The Juvenile Drug Trafficking Act of 1986, Pub.L. No. 99-570, 100 Stat. 3207-10 (1986), represents a congressional recognition of the troublesome societal problem created when drug traffickers seek to include minors in their illegal activities. As an acknowledgement of the fact that youths are easily susceptible to outside pressures and in an attempt to deter criminals from including minors as participants in their illegitimate activities, Congress enacted several new offenses with enhanced penalty provisions. Among other things, Congress provided for the imposition of mandatory minimum sentences for any individuals convicted of knowingly and intentionally including minors in their criminal drug activities. 21 U.S.C. Sec. 845b(b), (c) (Supp.1989). As an additional deterrent to criminals who wish to include minors in their illegal activities and as a reflection of society's view that utilization of susceptible minors is particularly reprehensible, Congress provided that the potential maximum sentence for individuals convicted of knowingly and intentionally including minors in their illegal drug conduct may be significantly greater than the potential maximum penalties that could be imposed otherwise. 21 U.S.C. Sec. 845b(b), (c), (e) (Supp.1989). ³

In this case, the evidence shows that Ronald and Butler were intending to purchase a large quantity of cocaine at the time their car broke down. Once their car became inoperable, Ronald and Butler could have chosen simply to walk across the street and...