U.S. v. Frazier
| Decision Date | 12 February 2002 |
| Docket Number | No. 98-3748.,No. 98-3747.,No. 98-3860.,No. 98-3926.,98-3747.,98-3748.,98-3860.,98-3926. |
| Citation | 280 F.3d 835 |
| Parties | UNITED STATES of America, Appellee, v. Phelix Henry FRAZIER, also known as Towman, also known as Tow, also known as Phe, also known as Daddy, also known as Blue, also known as Reuben Matthews, Appellant. United States of America, Appellee, v. Darren Thomas, also known as DT, Appellant. United States of America, Appellee, v. Joe Robinson, Appellant. United States of America, Appellee, v. Phelix T. Frazier, also known as Little Phe, also known as Phe Phe, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Kenneth R. Tihen, Asst. U.S. Atty., argued, St. Louis, MO, for appellee U.S.
Daniel Mohs, argued, St. Louis, MO, for appellant Phelix H. Frazier.
Stephen E. Rothenberg, argued, St. Louis, MO, for appellant Darren Thomas.
William Gavras, argued, St. Louis, MO, for appellant Joe Robinson.
Benjamin Capshaw, argued, St. Louis, MO, for appellant Phelix T. Frazier.
Before HANSEN and HEANEY, Circuit Judges, and TUNHEIM,1 District Judge.
A federal grand jury returned an indictment alleging that Phelix H. Frazier, Sr., his son, Phelix T. Frazier,2 Darren Thomas, and Joe Robinson, along with 19 other defendants, operated a large-scale heroin distribution operation in St. Louis, Missouri. A federal trial jury found the four guilty of conspiracy to distribute drugs and of other related violations. The defendants argue on appeal that their convictions and sentences are invalid. We affirm.
Frazier, Sr. was arrested in San Diego, California, in March 1990 when he attempted to purchase approximately two kilograms of cocaine. Following his arrest, he pleaded guilty to conspiring to possess with intent to distribute cocaine, and he served over four and a half years in a federal prison in California. While incarcerated there, Frazier, Sr. learned of a large-scale supplier of heroin, Jesse Lewis, who resided in San Francisco. Following Frazier, Sr.'s release from prison, he returned to St. Louis to begin reestablishing himself in the narcotics trafficking business.
Frazier, Sr. made his first trip to San Francisco to meet Lewis shortly after his release from prison. On the first trip, he purchased several ounces of good and affordable black tar heroin, and Lewis proved himself to be a reliable supplier. Frazier, Sr. thereafter traveled to San Francisco once or twice per month. He began purchasing 5-ounce quantities of pure heroin at a time, but as his St. Louis operation's sales increased he later purchased 10-ounce quantities and, ultimately, 20-ounce quantities. Frazier, Sr. personally made the trips to San Francisco to purchase the drug.
Back in St. Louis, Frazier, Sr. and his cohorts developed an organized and complex enterprise to market the heroin and to avoid interference by law enforcement. Over the course of the conspiracy, Frazier, Sr. and the others established several drug-distribution locations throughout St. Louis, but distributed out of only two or three locations at a time, rotating them frequently to avoid detection. In addition, they kept the locations open for business only during specific and limited hours during the day. The organization utilized cell phones, pagers, and call forwarding to insure that users were able to contact the location from which the sales were being made. Frazier, Sr. also established a phony towing company, AM PM Towing, which he used to launder money earned through drug sales. The company's shop also functioned as a distribution location.
Frazier, Sr. designated someone to operate each particular drug-distribution location and that person in turn supervised the drug activities and others employed at the location. Actual sales to users did not occur at the distribution locations. Instead, an individual employed there mixed the heroin with a diluent to attain a street-level purity, or "cut" the heroin, and packaged it into empty, clear capsules (a signature of Frazier Sr.'s operation) to be sold to users. Users then called in their orders to someone employed to answer calls and take orders at the location. The order taker would document the order in writing and arrange a delivery at some designated meeting place, and a runner would deliver the drug. Each capsule sold for $10, and each location sold between $1500 and $6000 worth of heroin per day. DEA agents estimated that the operation supplied over 60% of the heroin being sold in St. Louis. As a service to their customers, Frazier, Sr.'s locations also supplied cocaine in capsule form, but the volume of cocaine sold was much less than the volume of heroin.
Robinson, Thomas, and Frazier, Jr. performed various roles in Frazier, Sr.'s operation. Robinson started as a runner, was promoted to an order taker and later was given the responsibility of mixing the heroin at several locations. Thomas, in contrast, entered the operation in the fall of 1996. Frazier, Sr. knew Thomas from the time they had spent together in a halfway house following their releases from prison and he immediately placed Thomas in charge of a new location on North Grand. Thomas recruited two individuals, Andre Jones and Carla Crocker, to assist him in operating the location. Frazier, Jr. monitored the operation's activities when his father was out of town purchasing heroin.
Around the time Thomas opened the North Grand location, state and federal law enforcement officers began investigating Frazier, Sr.'s activities. As one of the first steps, the officers obtained permission to install a pen register on the phone at Thomas's location. Over 26,000 calls were logged in a three-month period. Through information gained in the investigation, the officers sought and received permission to install several wiretaps at various drug-distribution locations and on phones used by members of the operation. Investigators installed the first wiretap at the North Grand location in March 1997, sometime after Thomas's supervised release had been revoked for using heroin. Frazier, Sr.'s niece took over the North Grand operation after Thomas was no longer available.
In late May 1997, agents intercepted a call in which Frazier, Sr. informed Lewis that he would be traveling to San Francisco for more drugs. On his return trip on May 23, officers apprehended Frazier, Sr. at the airport and seized 20 ounces of black tar heroin that had been strapped to his body. The agents released him from custody, and shortly thereafter, Frazier, Sr. called Lewis and ordered 15 more ounces of pure heroin. He also made arrangements to transfer various property from his name into the names of others, and he placed an order for a false identification. On May 30, agents again apprehended Frazier, Sr. as he arrived in Kansas City on a return flight from California. The officers seized 15 ounces of black tar heroin, which was contained in Frazier, Sr.'s companion's suitcase. The investigation ultimately culminated in the execution of 28 search warrants, yielding the seizure of drugs, drug paraphernalia, weapons, and drug ledgers.
The grand jury returned a superceding indictment charging 24 defendants with various violations of federal law. Twenty of the named defendants pleaded guilty, and the remaining four defendants who appeal here were tried together beginning in late July 1998. Following the dismissal of one juror during deliberations because of a family emergency, the remaining jurors returned a verdict in early August 1998, finding the four defendants guilty of the charge that they conspired to distribute or possess with intent to distribute heroin and cocaine, in violation of 21 U.S.C. § 846. The jury also found Frazier, Sr. guilty of engaging in a continuing criminal enterprise (CCE), see 21 U.S.C. § 848(a), of being a felon in possession of a weapon, see 18 U.S.C. § 922(g), and of eleven other violations relating to his drug-distribution activities. The jury found Robinson guilty of an additional count of possession with intent to distribute heroin and cocaine in violation of 21 U.S.C. § 841(a)(1), and found in favor of the government on two criminal forfeiture counts. The district court3 subsequently sentenced the defendants and ordered the forfeiture of Frazier, Sr.'s home, the property at which AM PM Towing was located, a restored 1937 Buick, and various amounts of cash seized during the investigation.
The defendants raise numerous issues on appeal which they argue require us to overturn their convictions. The majority of the issues take the form of a challenge to the evidence offered by the government to prove the existence of the conspiracy and to prove the defendants' involvement. Some of the defendants also argue their convictions are invalid because they were based on the verdict of only eleven jurors, and Thomas argues the district court erred when it refused to try him separately. We conclude for the reasons stated below that the defendants' convictions are valid.
Under Federal Rule of Criminal Procedure 14, a district court may grant a motion to sever the trial if a defendant shows that he would be prejudiced by a joint trial. We review a district court's refusal to sever for an abuse of discretion. See, e.g., United States v. Patterson, 140 F.3d 767, 774 (8th Cir.), cert. denied, 525 U.S. 907, 119 S.Ct. 245, 142 L.Ed.2d 202 (1998). To succeed on appeal a defendant must show that he was clearly prejudiced by the joint trial. Id. We have said many times that it will be the rare case, if ever, where a district court should sever the trial of alleged coconspirators. See, e.g., id. We conclude that Thomas's situation does not fall within that rare exception, if one exists.
In short, Thomas claims prejudice because, as he...
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