U.S. v. English

• fullCitation: U.S. v. English, 925 F.2d 154 (6th Cir. 1991)
• Decision Date: 04 February 1991
• Citation: 925 F.2d 154
• Docket Number: 90-5106,Nos. 90-5105,s. 90-5105
• Parties: UNITED STATES of America Plaintiff-Appellee, v. Robert Dean ENGLISH a/k/a Bobby English (90-5106); and Raymond English (90-5105) Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 154

925 F.2d 154

UNITED STATES of America Plaintiff-Appellee, v. Robert Dean ENGLISH a/k/a Bobby English (90-5106); and Raymond English (90-5105) Defendants-Appellants.

Nos. 90-5105, 90-5106.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 30, 1990.

Decided Feb. 4, 1991.

Joseph M. Whittle, U.S. Atty., Terry Cushing, Asst. U.S. Atty. (argued), David P. Grise, Asst. U.S. Atty., Louisville, Ky., for U.S.

Richard L. Walter (argued), Boehl, Stopher, Graves & Deindoerfer, Paducah, Ky., for Raymond English.

Rickie A. Johnson (argued), Mayfield, Ky., for Robert Dean English.

Before MERRITT, Chief Judge, JONES, Circuit Judge, and WELLFORD, Senior Circuit Judge. ^*

PER CURIAM. Defendants-appellants Robert and Raymond English appeal their drug-related convictions in the district court. We affirm in part and reverse in part.

I.

In early 1987, Raymond English and Omar Lopez met in Florida. Lopez pretended to be a legitimate businessman but, in fact, was importing cocaine into the United States. Raymond English began to get cocaine from Lopez. In March 1987, Raymond English moved back home to Marshall County, Kentucky. When he returned to Kentucky, he brought cocaine with him. He went into the cocaine business with his brother, Robert English. The cocaine soon ran out and Raymond began to repeatedly return to Florida to obtain more cocaine.

After a few months, Raymond English built up a debt to Omar Lopez for cocaine. Because of the debt, Lopez refused to give Raymond English any more cocaine. Raymond English found a new source for cocaine, Jimmy Davis. Davis did not have cocaine but knew someone in Atlanta, Georgia, who could supply it, convicted drug dealer Harry Downs. Raymond English would tell Davis when to go to Atlanta and how much cocaine to buy. He also provided Davis with the money to buy the cocaine. When Raymond English got the cocaine back to Marshall County, Kentucky, he would distribute it to his brother, Robert English, as well as to others. Donna Stevenson, Raymond English's live-in girlfriend, kept records of some of the transactions.

Cocaine would go from Raymond to Robert English. At Robert's residence, the cocaine would be repackaged and "cut." Robert and his wife, Tammy English, cut and packaged the cocaine. Once the cocaine had been cut and packaged, it would be sold from Robert's residence. They sold the cocaine to persons who would either use it or resell it.

Raymond and Robert participated in this organized scheme continuously for over two years. They made thousands of dollars in profits from it. Although Raymond reported very little income in 1987, investigation and testimony revealed that people in the community received thousands of dollars in payments from Raymond.

After his arrest, Raymond confessed to being involved in the cocaine trade. He also admitted selling cocaine from his house, providing cocaine to Robert, and making money from the profits of the drug trafficking activities.

On April 17, 1989, a grand jury returned a twelve-count indictment against Robert and his brother, Raymond. The indictment charged as follows: count one of the indictment charged both Robert and Raymond with knowingly and intentionally engaging in a continuing criminal enterprise, in violation of 21 U.S.C. Sec. 848; count two charged Raymond with willfully attempting to evade and defeat federal income tax due, in violation of 26 U.S.C. Sec. 7201; count three charged both Robert and Raymond with conspiring to possess with the intent to distribute in excess of five kilograms of cocaine, in violation of 21 U.S.C. Sec. 846; count four charged Raymond with possessing with the intent to distribute over five kilograms of cocaine, in violation of 21 U.S.C. Sec. 841(a)(1); counts five through eleven charged Raymond with a series of cocaine distributions, in violation of 21 U.S.C. Sec. 841(a)(1); counts seven through twelve charged Robert with a series of cocaine distributions, in violation of 21 U.S.C. Sec. 841(a)(1).

Robert English pled guilty to counts seven through twelve of the indictment. The jury returned guilty verdicts on all remaining counts. From these convictions, both Robert and Raymond English appeal. The issues presented on appeal are: (1) whether there was sufficient evidence to support the convictions; (2) whether the trial court erred in its instructions to the jury; (3) whether counts four through eleven of the indictment against Raymond English should be vacated as lesser included offenses of count one; and (4) whether the convictions for count three of the indictment should be vacated as lesser included offenses of count one.

II.

The first issue on appeal is whether there was sufficient evidence to support the convictions below. The standard of review here is whether "after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Martin, 897 F.2d 1368, 1373 (6th Cir.1990) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)).

A.

The first issue concerning the sufficiency of the evidence is whether the evidence was sufficient to support Robert and Raymond English's convictions under count one of the indictment for engaging in a continuing criminal enterprise, in violation of 21 U.S.C. Sec. 848. There are five elements in a continuing criminal enterprise offense: (1) a felony violation of the federal narcotics law; (2) as part of "a continuing series of violations;" (3) "in concert with five or more persons;" (4) for whom the defendant is an organizer or supervisor; and (5) from which he derives substantial income. 21 U.S.C. Sec. 848(c) (1988); United States v. Davis, 809 F.2d 1194, 1203 (6th Cir.), cert. denied, 483 U.S. 1007, 107 S.Ct. 3234, 97 L.Ed.2d 740 (1987).

Robert and Raymond English contend that there was insufficient evidence to convict them for engaging in a continuing criminal enterprise because the government failed to prove that they acted in concert with five or more persons with respect to whom they "occupie[d] a position of organizer, a supervisory position, or any other position of management." 21 U.S.C. Sec. 848(c)(2)(A).

Robert English argues that the only evidence which tended to show that he acted as an organizer, supervisor or manager related to Tammy English. Robert English concedes that the government's evidence shows that other individuals bought cocaine from him to sell to third parties but argues that the record is void of substantial and competent evidence to support a finding that four other individuals, in addition to Tammy English, were being organized, supervised or managed by him.

Raymond English similarly asserts that the government failed to establish that he acted as an organizer or supervisor over five or more persons. He argues that the only person over whom it can be said that he was an organizer or supervisor is Donna Stevenson.

Concerning the element that the defendant be in the position of an organizer or supervisor with respect to five other persons, this circuit has stated:

the relationship requirement in a Sec. 848 case is flexible. The defendant's relationship with the five other individuals need not exist at the same moment. There can exist separate, individual relations with the five persons. And, the five individuals need not act at the same time.

United States v. Davis, 809 F.2d at 1204 (citing United States v. Sinito, 723 F.2d 1250, 1261 (6th Cir.1983), cert. denied, 469 U.S. 817, 105 S.Ct. 86, 83 L.Ed.2d 33 (1984)). While the relationship requirement is somewhat loose as to the specific role each of the five persons must play in the criminal enterprise, simply purchasing cocaine from the "organizer" standing alone is not enough to satisfy the relationship requirement. United States v. Jenkins, 904 F.2d 549, 553 (10th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 395, 112 L.Ed.2d 404 (1990) ("proof of a buyer-seller relationship alone is insufficient to establish managerial role, however, additional evidence of formal or informal authority respecting a purchaser's conduct may suffice") (citing United States v. Jones, 801 F.2d 304, 309-10 (8th Cir.1986)). In United States v. Jones, 801 F.2d 304 (8th Cir.1986), the court found the relationship requirement satisfied because the defendant exercised control over his customers by, among other things, instructing them as to the language they could use to refer to drugs over the phone, by setting the prices for the drugs, by dictating whether the sales would be cash or credit, by telling them who they could sell the drugs to, by forcing his customers to pay promptly, and by dictating the quality of the drugs. Id. at 308-09. Further, in Jones a person was found to be under the defendant's organization or supervision because she knew about the drug operation, took orders directly from the defendant and helped in the drug business. Id. at 309.

In Jenkins, 904 F.2d at 554, defendant was found to have acted as an organizer, supervisor or manager over persons who allowed him to store marijuana at their home, who defendant regularly fronted drugs and who the defendant instructed as to the sales terms. The defendant in Jenkins was also found to be a supervisor over persons who brokered his purchases, transported his marijuana, carried out his transactions and arranged for storage. Id.

In addition to Tammy English, a rational jury could have found that Robert English had more than five customers whom he controlled by, among other things, dictating sales terms, by telling them whom they could sell the drugs to, and by forcing his customers to pay promptly. Further, a rational jury could have found that Robert had person(s) who enforced his payment scheme, and that he had at least one broker/courier under his supervision. In addition to Donna Stevenson, a rational jury could have found that Raymond...