U.S. v. Flaharty
| Decision Date | 02 July 2002 |
| Docket Number | Docket No. 99-1655(L).,Docket No. 99-1720.,Docket No. 00-1236.,Docket No. 00-1356.,Docket No. 99-1686. |
| Citation | 295 F.3d 182 |
| Parties | UNITED STATES of America, Appellee, v. Alberto FLAHARTY, also known as Rique, also known as Enrique, Tyrone Grimes, Carf Flaharty, also known as Carf, Garth Bruce, also known as G-Man, and Lawrence Johnson, also known as Big L, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Second Circuit |
Andrew Frisch, Assistant United States Attorney, Brooklyn, NY (Loretta E. Lynch, United States Attorney for the Eastern District of New York, Susan Corkery, Kelly Currie, Assistant United States Attorneys, Brooklyn, NY, on the brief), for Appellee.
Gregory E. Cooper, New York, NY, for Defendant-Appellant Alberto Flaharty.
Daniel H. Murphy, II, Pelham, NY, for Defendant-Appellant Tyrone Grimes.
Bernard V. Kleinman, Purchase, NY (Thomas P. Milton, New York, NY, on the brief), for Defendant-Appellant Carf Flaharty.
Aaron R. Morrill, Brooklyn, NY (Trevor L.F. Headley, Brooklyn, NY, James E. Neuman, New York, NY, on the brief), for Defendant-Appellant Garth Bruce.
Bobbi C. Sternheim, New York, NY, for Defendant-Appellant Lawrence Johnson.
Before: KEARSE, MINER, and F.I. PARKER, Circuit Judges.
Defendants Alberto Flaharty ("Alberto"), Tyrone Grimes, Carf Flaharty ("Carf"), Garth Bruce, and Lawrence Johnson appeal from judgments entered in the United States District Court for the Eastern District of New York following a jury trial before John Gleeson, Judge, convicting each defendant of conspiring between 1992 and April 1998 to distribute and possess with intent to distribute cocaine base (crack cocaine) and marijuana, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A) (count one), and of conspiring between September 1996 and April 1998 to do so within 1,000 feet of a school zone, in violation of 21 U.S.C. §§ 846 and 860 (count two); convicting Bruce, Carf, and Grimes of engaging in a continuing criminal enterprise, in violation of 21 U.S.C §§ 848(a) and (c) (count three); convicting Johnson of unlicensed dealing in firearms, in violation of 18 U.S.C. §§ 922(a)(1)(A) and 924(a)(1)(D) (count four); and convicting Bruce (count five) and Grimes (count six) of possessing firearms as previously convicted felons, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Defendants were sentenced principally to the following prison terms: Alberto, two concurrent 180-month terms; Grimes, three concurrent 420-month terms and one 120-month term to be served concurrently with his 420-month terms; Carf, three concurrent life terms; Bruce, three concurrent life terms and one 60-month term to be served concurrently with his life terms; and Johnson, two concurrent life terms and one 60-month term to be served concurrently with his life terms. Grimes's imprisonment is to be followed by a total of five years of supervised release; each other defendant's imprisonment is to be followed by a total of 10 years of supervised release.
On appeal, defendants advance numerous contentions, including challenges to the indictment's sufficiency to charge a continuing criminal enterprise, to the court's evidentiary rulings and instructions to the jury, to the sufficiency of the evidence to support their convictions on certain counts, and to the validity of their convictions and sentences in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In addition, Bruce, Carf, and Grimes contend that they could not properly be convicted of both engaging in a continuing criminal enterprise and participating in a narcotics conspiracy that is a lesser included offense of the continuing criminal enterprise. The government properly concedes the correctness of this lesser-included-offense contention, see Rutledge v. United States, 517 U.S. 292, 300, 307, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996), and we therefore reverse the convictions of Bruce, Carf, and Grimes on count one of the superseding indictment and remand to the district court for the dismissal of that count against those defendants. Finding no basis for reversal in any of defendants' other contentions, we affirm the judgments of conviction in all other respects.
The present appeals arise out of the prosecution of the five appellants and others in connection with their participation in a narcotics distribution enterprise on Beach 26th Street in Far Rockaway, New York. At trial, the government presented the testimony of more than 30 witnesses, including some 20 local and federal law enforcement officers; coconspirators Dave Hamilton and Kyheem Butler, respectively a leader and a seller; and persons who purchased drugs from the coconspirators for resale elsewhere or for personal use. The government also presented numerous exhibits, including guns, ammunition, bags of crack cocaine, and other drug paraphernalia. Taken in the light most favorable to the government, the evidence revealed the following.
In approximately 1992, Hamilton, Bruce, and a pair known as "Spanky" and "Brian" ("Spanky/Brian") entered into a time-sharing arrangement with respect to drug sales on the Beach 26th Street block, with each of the three principals, in turn, controlling the block for a two-day period. The principals employed workers to act as sellers and lookouts during their respective turns. In 1993, the principals modified the agreement so that each principal would control the block's drug trade for a week at a time rather than two days at a time this arrangement lasted from 1993 until mid-1995.
During the latter period, Carf served as a lieutenant for Hamilton and Bruce and was responsible for managing the day-to-day affairs of the business, including distributing drugs to the sellers, collecting the money from the sales, and paying the sellers for their work. Butler worked as a lookout for Hamilton and Bruce; Carf's brother Alberto was a seller or a lookout for Hamilton and Bruce. Hamilton and Bruce each sold a weekly average of 10-18 ounces of crack cocaine and 5-8 pounds of marijuana. The operation's weekly gross income averaged $14,000-$16,000 and was as high as $20,000.
In mid-1995, Spanky/Brian left the block, and Hamilton assumed control of drug sales for two of every three weeks, with Bruce retaining control of the third week. This alignment lasted until late 1997. Carf, except for a period between May and September 1995 during which he was incarcerated, continued to serve as lieutenant for both Hamilton and Bruce. At various times, Grimes, Alberto, and Butler worked for Hamilton and Bruce as sellers. The operation sold an average of nine ounces of crack cocaine a week and grossed about $8,000 to $12,000 a week.
In September 1996, a public elementary school opened on Beach 29th Street, less than 500 feet from Beach 26th Street. As a result, Hamilton sought to distance himself physically from the Beach 26th Street operation. He left New York City for several weeks in 1996-1997, during which Carf assumed control of his weeks. In late 1997, Hamilton moved to Ohio; Grimes, who had become a lieutenant for Hamilton and Bruce in mid 1997, took over Hamilton's branch of the operation, controlling two out of every three weeks until March 1998. During Grimes's period of control, he averaged weekly sales of approximately 4-4½ ounces of crack cocaine, grossing about $3,000 to $4,000 a week. Alberto sold for both Grimes and Bruce and employed others to sell for him. Bruce, during that period, grossed approximately $2,000 to $2,500 a week.
Johnson, who lived near the border between Virginia and Tennessee, supplied the coconspirators with weapons. He purchased guns mostly from flea markets around his home, brought the guns to New York, and resold them in Far Rockaway. Shannon Hale, Johnson's confidante who had accompanied him on a few such trips, had helped him load the car with guns, and had witnessed gun sales in New York, testified that Johnson said he had driven to New York nearly every week between 1993 and 1995, transporting 9-14 guns on each trip. Johnson sold the guns for cash, crack cocaine, or powder cocaine, and then resold the drugs in the Virginia-Tennessee area; from his gun and drug sales, he grossed $30,000 to $40,000 a week. Johnson sold at least four guns to Hamilton, sold at least one each to Bruce, Carf, and Grimes, and sold guns to other members of the enterprise as well.
In 1994-1998, local law enforcement officers conducted surveillances, undercover buys, and buy-and-bust operations in investigating drug sales in the Beach 26th Street area and acquired evidence of narcotics sales by Carf, Grimes, Alberto, and others, and gun sales by Johnson. Execution of search warrants in 1996-1998 on apartments occupied by Bruce and Alberto, respectively, and on a bungalow used by Hamilton and Bruce, turned up bags containing crack cocaine, as well as an abundance of drug-related paraphernalia including triple-beam scales, narcotics packaging materials, handguns, ammunition empty gun boxes, pagers, and walkie-talkies.
A multi-agency, multi-jurisdiction investigation of the conspiracy concluded in May 1998, and federal indictments were returned against numerous individuals. The present defendants were eventually tried on a six-count superseding indictment charging each of them with two counts of narcotics conspiracy, charging Bruce, Carf, and Grimes with conducting a continuing criminal enterprise, and charging Bruce, Grimes, and Johnson with firearms offenses, all as indicated above.
Each defendant was convicted on all counts in which he was charged. On a special verdict form that posed successive sets of questions as to each individual defendant, the jury found, inter alia, "that the...
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