U.S. v. Edwards
| Decision Date | 24 October 1995 |
| Docket Number | Nos. 94-5202,s. 94-5202 |
| Citation | 69 F.3d 419 |
| Parties | 43 Fed. R. Evid. Serv. 225 UNITED STATES of America, Plaintiff-Appellee, v. Milton EDWARDS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Terry RATLIFF, Sr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. William Thomas LAWRENCE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Kerry CHAPLIN, Defendant-Appellant. to 94-5204 and 95-5003. |
| Court | U.S. Court of Appeals — Tenth Circuit |
William E. Hughes, Tulsa, Oklahoma, for Defendant-Appellant Milton Edwards.
Richard D. Amatucci, Tulsa, Oklahoma, for Defendant-Appellant Terry Ratliff, Sr.
Craig P. Bryant, Assistant Federal Public Defender, (Stephen J. Knorr, Federal Public Defender, with him on the brief), Tulsa, Oklahoma, for Defendant-Appellant William Thomas Lawrence.
Reuben Davis (Laura L. Gonsalves, with him on the brief), Tulsa, Oklahoma, for Defendant-Appellant Kerry Chaplin.
David E. O'Meilia, Assistant United States Attorney (Stephen C. Lewis, United States Attorney, with him on the brief), Tulsa, Oklahoma, for Plaintiff-Appellee United States.
Before BALDOCK and McWILLIAMS, Circuit Judges, and BROWN, District Judge. *
Defendants Milton Edwards, William Lawrence, Jr., Kerry Chaplin, and Terry Ratliff, Sr. were tried together and convicted in a jury trial of conspiracy to possess with intent to distribute cocaine and to distribute cocaine, 21 U.S.C. Secs. 846, 841(a)(1). Defendants Chaplin and Edwards were also convicted of use of a communication facility, a telephone, in facilitating a violation of federal narcotics laws, 21 U.S.C. Sec. 843(b). Defendants appeal their convictions and sentences. We exercise jurisdiction pursuant to 28 U.S.C. Sec. 1291 and 18 U.S.C. Sec. 3742(a). We affirm. 1
Testimony and evidence presented during trial detailed the following course of events. The instant conspiracy arose in the summer of 1990, when Defendants Edwards and Ratliff began purchasing small quantities of cocaine from Balbino "Munchie" Tavarez in Houston, Texas for resale near their home in Atoka, Oklahoma. 2 Over the next two years, Edwards purchased increasing quantities of cocaine from Tavarez but experienced difficulties transporting the cocaine from Houston.
In July 1992, Edwards approached Jerry Grist ("J. Grist") in Atoka, and proposed that J. Grist transport the cocaine from Houston to Tulsa through the use of J. Grist's trucking company employees. J. Grist agreed to this arrangement in exchange for payment of $1,000 per kilogram of cocaine transported. To carry out this plan, Edwards and Ratliff escorted J. Grist to Dallas, Texas to meet with Tavarez. There, J. Grist met with Tavarez, received instructions on making cocaine purchases, and observed Edwards purchase two kilograms of cocaine from Tavarez.
In September 1992, Edwards was placed on probation for an unrelated 1990 drug charge and was placed in a halfway house. During Edwards' confinement, Tavarez arranged transactions directly with J. Grist for Edwards. At this point, Defendant Chaplin began purchasing cocaine from J. Grist which allowed him to obtain better quality cocaine than he was able to obtain on his own. In making these purchases, Chaplin pooled his money into a common fund with the other codefendants in order to make bulk purchases of cocaine, as the price of cocaine was less expensive when purchased in large quantities. At trial, J. Grist estimated that he or his employees routinely transported multiple kilograms of cocaine from Houston to Tulsa, at least every week, until his arrest on May 9, 1993. Once the cocaine arrived in Tulsa, J. Grist distributed the cocaine among the Defendants who had invested in the purchase.
In February 1993, the district court revoked Edwards' probation and sentenced him to prison. The following September, Edwards contacted J. Grist from prison and informed him that Ratliff would assume control of his portion of the operation. Specifically, Ratliff would communicate with the Defendants about their cocaine needs, collect the money, and place orders with J. Grist. Although Edwards later replaced Ratliff with Defendant Lawrence, Ratliff continued to receive cocaine from other Defendants and occasionally pooled his own funds with that of other Defendants to purchase cocaine from J. Grist.
In April 1993, state agents received an order from an Oklahoma state court authorizing the interception of telephone communications from two specific telephone numbers used by J. Grist at his home and trucking business in Atoka County, Oklahoma. Pursuant to the wiretap order, agents intercepted telephone conversations between J. Grist and Tavarez, some of which directly concerned the cocaine distribution operation involving Defendants. In particular, agents intercepted a phone call on May 7, 1993, which revealed that J. Grist planned to travel to Houston to purchase a multi-kilogram quantity of cocaine from Tavarez. On May 9, 1993, agents arrested J. Grist near Atoka, Oklahoma as he was returning from Houston. Four kilograms of cocaine were found in his possession, purchased with funds provided by Defendants Lawrence, Lewis, and Chaplin.
Following his arrest, J. Grist began cooperating with government agents regarding the drug distribution operation. 3 As part of his cooperation, J. Grist made several monitored telephone calls to Ratliff informing him that a "friend" from El Paso, Texas, was planning to visit Tulsa for the purpose of distributing cocaine. Unbeknownst to Ratliff, the "friend" was an undercover DEA Agent, Joe Leszczynski. Agent Leszczynksi contacted Ratliff on September 26, 1993, to discuss a potential drug transaction. In addition to his discussions with Ratliff, Agent Leszczynksi contacted Defendant Chaplin by telephone several times during October 1993 to arrange cocaine purchases. On November 2, 1993, Leszczynski called Chaplin to finalize a drug buy the next day. During this call, Chaplin discussed his past involvement with Defendants in purchasing cocaine through J. Grist.
On November 3, 1993, government agents recorded telephone calls made by a cooperating coconspirator, Herbert Grist ("H. Grist"), father of J. Grist. In these calls, H. Grist discussed a planned purchase of cocaine with Chaplin and Ratliff. Chaplin then met H. Grist at the Roadway Motel in Tulsa, in a room monitored by agents through the use of hidden video and audio transmitters. Agents observed Chaplin negotiate the purchase of one kilogram of cocaine. After Chaplin paid for the cocaine, agents arrested him.
Later the same day, H. Grist placed a telephone call to Ratliff to give him the motel and room number. However, for some reason, Ratliff did not meet H. Grist at the room and did not negotiate a purchase. Approximately 30 minutes after H. Grist spoke to Ratliff, Defendant Edwards contacted H. Grist at the motel room and arranged to meet to discuss a drug transaction. Shortly thereafter, Edwards and Defendant Lawrence met H. Grist at the motel room and agents monitored the meeting.
At the meeting, Edwards and Lawrence indicated that they did not want to pay cash for the cocaine but wanted it "fronted". 4 In accordance with instructions from DEA agents, H. Grist agreed to "front" two kilograms of cocaine to Edwards and Lawrence. After Lawrence took possession of the cocaine, agents arrested Edwards and Lawrence.
On January 26, 1994, Defendants were indicted for conspiracy to possess with intent to distribute cocaine and to distribute cocaine, 21 U.S.C. Secs. 846, 841(a)(1). In addition, Defendants Edwards and Chaplin were indicted for use of a communication facility, a telephone, in facilitating a violation of federal narcotics laws, 21 U.S.C. Sec. 843(b). Following their indictment, Defendants moved to suppress evidence obtained pursuant to a wiretap, claiming that the wiretap order was improperly issued. The district court denied the motion. On May 5, 1994, a jury found Defendants guilty as charged on all counts. This appeal followed.
On appeal, Defendants raise the following common issues challenging their convictions: (1) whether the district court erred in failing to suppress evidence obtained from a wiretap, and (2) whether a fatal variance existed between the indictment, which alleged a single conspiracy, and the government's proof at trial, which established the existence of multiple conspiracies.
In addition to these common issues, Defendant Chaplin challenges the sufficiency of the evidence as to his conspiracy conviction. Defendant Ratliff argues the district court erred in failing to grant his motion for severance. Defendants Edwards and Lawrence contend the district court erred in admitting evidence of prior bad acts pursuant to Fed.R.Evid. 404(b). Defendant Edwards filed a pro se supplemental brief appended to the opening brief filed by his attorney claiming that the district court erred by: (1) allowing "the jury selection process to continue after discovery of an impermissible disparity concerning African-Americans," and (2) denying a motion to depose Herbert Grist pursuant to Fed.R.Crim.P. 15(a). 5
As to sentencing issues, all Defendants claim the district court erroneously calculated the quantity of cocaine used to determine their base offense levels. In addition, Defendant Edwards claims the district court improperly enhanced his sentence for (1) being an organizer or leader of the conspiracy, and (2) obstruction of justice. Defendants Lawrence and Chaplin seek to incorporate all arguments raised by their codefendants insofar as they apply to their particular appeals. We address Defendants' arguments in turn.
Defendants first contend the district court erred in denying their motion to suppress evidence obtained pursuant to a wiretap. Specifically, Defendants contend that the wiretap application and order were invalid because the district attorney who applied...
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