U.S. v. Gibbs

• Decision Date: 27 January 1999
• Docket Number: DEFENDANTS-APPELLANTS,PLAINTIFF-APPELLEE,Nos. 96-3383,s. 96-3383
• Parties: (6th Cir. 1999) UNITED STATES OF AMERICA,, v. ANTHONY GIBBS (96-3383); RICHARD HOUGH (96-3384); DONNETO BERRY (96-3385); CHAD GIBBS (96-3386); ROBERT CURTIS (96-3387); LAMONT NEEDUM (96-3388); ANTWAN WOODS (96-3402),to 96-3388, 96-3402 Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 408

182 F.3d 408 (6th Cir. 1999)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. ANTHONY GIBBS (96-3383); RICHARD HOUGH (96-3384); DONNETO BERRY (96-3385); CHAD GIBBS (96-3386); ROBERT CURTIS (96-3387); LAMONT NEEDUM (96-3388); ANTWAN WOODS (96-3402), DEFENDANTS-APPELLANTS.

Nos. 96-3383 to 96-3388, 96-3402

U.S. Court of Appeals, Sixth Circuit

Argued: January 27, 1999

Decided April 16, 1999

As Amended on Denial of Rehearing and Suggestion for Rehearing En Banc July 13, 1999.

Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 95-00044-George C. Smith, District Judge. [Copyrighted Material Omitted]

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[Copyrighted Material Omitted] David J. Graeff (argued and briefed), Columbus, Ohio, for Defendant-Appellant Anthony Gibbs.

Spiros P. Cocoves (argued and briefed), Toledo, Ohio, for Defendant-Appellant Richard Hough.

Stephen R. Felson (argued and briefed), Felson & Felson, Cincinnati, Ohio, for Defendant-Appellant Donneto Berry.

Kevin P. Durkin (argued and briefed), Durkin & Brown, Columbus, Ohio, for Defendant-Appellant Chad Gibbs.

W. Kelly Johnson, Assistant Federal Public Defender, Cincinnati, Ohio, Beth G. Lewis (argued and briefed), Office of the Federal Public Defender, Dayton, Ohio, for Defendant-Appellant Robert Curtis.

Joseph D. Reed (argued and briefed), Columbus, Ohio, for Defendant-Appellant Lamont Needum.

Dennis C. Belli (argued and briefed), Columbus, Ohio, for Defendant-Appellant Antwan Woods.

Terry Lehman (briefed), Office of the U.S. Attorney, Cincinnati, Ohio, Salvador A. Dominguez (briefed), Office of the U.S. Attorney, Columbus, Ohio, Joseph C. Wyderko (argued and briefed), Department of Justice, Criminal Division, Appellate Section, Washington, DC, for Plaintiff-Appellee.

Before: Merritt and Moore, Circuit Judges; Duggan,¹ District Judge.

OPINION

Karen Nelson Moore, Circuit Judge.

These seven defendants were all indicted under a single conspiracy count and individual drug and firearm counts. The government alleged that each of the defendants was a member of a group known as the Short North Posse, a group allegedly formed in 1989 in the Short North area of Columbus, Ohio to control local sales of cocaine base by excluding from the area drug dealers who were not residents of the Short North. A jury convicted each of the named defendants on the conspiracy count and on individual drug trafficking counts, and convicted a number of the defendants on firearm counts.

We AFFIRM in part, REVERSE in part, VACATE in part, and REMAND for further proceedings consistent with this opinion.

I. FACTS AND PROCEDURE

In 1990, after a friend was shot in a drug trafficking incident, Robert Dotson and Marshon Mays decided to band together to form a group that would offer protection to its members in the area directly north of downtown Columbus, Ohio. This area was known as the Short North, and the group dubbed itself the Short North Posse ("SNP") or the 4th Street Posse.

The government alleges that the goal of the group was to prevent anyone not living in the Short North from selling cocaine base ("crack cocaine" or "crack") there without permission. The government contends that the Short North Posse achieved this goal through threats and intimidation. The state and federal governments conducted an extensive undercover investigation headed by Agent Rodney Russell of the Bureau of Alcohol, Tobacco and Firearms, that included a large number of controlled buys of crack cocaine. In March 1995 the grand jury handed down a 185-count indictment against forty-one defendants. Count 1 of the indictment alleged that all forty-one of the defendants:

"did knowingly, intentionally and unlawfully combine, conspire, confederate and agree together with each other, and with diverse other persons, both known and unknown to the Grand Jury, to possess with the intent to distribute and to distribute cocaine and more than 5 grams of cocaine base, commonly referred to as crack, Schedule II controlled substance, in violation of 21 U.S.C. §§ 841(a)(1), 21 U.S.C. 841(b)(1)(C) and 841(b)(1)(B)(iii)."

J.A. at 125 (Indictment).

The seven defendants here on appeal pleaded not guilty, and their cases were consolidated for trial. The bulk of the government's evidence consisted of testimony from cooperating witnesses, most of whom were alleged members of the SNP who had pleaded guilty. Other relevant evidence came from undercover officers and non-SNP drug dealers or users.

The other counts charged individual defendants with, among other things, drug trafficking and firearms violations, including possession with intent to distribute crack in violation of 21 U.S.C. § 841, distributing crack in violation of 21 U.S.C. § 841, and using or carrying firearms during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c).

The jury convicted all seven of these defendants of the conspiracy charged in Count 1. Each of the defendants was also convicted of separate drug trafficking and firearms crimes. Defendant Curtis was convicted of possession with intent to distribute crack (Count 102) and using a firearm during and in relation to a drug trafficking crime (Count 103). Defendant Chad Gibbs was convicted of possession with intent to distribute crack (Count 46) and of distributing crack (Counts 91, 109, 148, 154, 160, 184, and 185). Defendant Needum was convicted of possession with intent to distribute crack (Counts 47 and 102), distributing crack (Counts 92 and 96), and using or carrying a firearm during and in relation to a drug trafficking crime (Counts 97 and 103). Defendant Anthony Gibbs was convicted of possession with intent to distribute crack (Counts 55, 132, and 182), using or carrying a firearm during and in relation to a drug trafficking crime (Count 133), and distributing crack (Count 119). Defendant Woods was convicted of distributing crack (Count 125), possession with intent to distribute crack (Count 146), and using or carrying a firearm during and in relation to a drug trafficking crime (Count 147). Defendant Hough was convicted of possession with intent to distribute crack (Count 81) and using or carrying a firearm during and in relation to a drug trafficking crime (Count 82). And finally, defendant Berry was convicted of possession with intent to distribute crack (Count 151). The jury acquitted an eighth defendant, Jimmie Reed, of the conspiracy charge (Count 1). See Trial Tr. at 4041. Each of these seven defendants filed a timely notice of appeal, and their cases were consolidated on appeal before this court. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.

II. ANALYSIS

A. Sufficiency of the Evidence

The defendants challenge for sufficiency of the evidence both the conspiracy count and certain of their individual drug counts. Each is discussed separately and in turn below.

1. Standard of Review

"When reviewing a claim of insufficient evidence, we examine the evidence in the light most favorable to the government and draw all inferences in the government's favor in order to determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt." United States v. Maliszewski, 161 F.3d 992, 1005 (6th Cir. 1998) (quoting United States v. Riffe, 28 F.3d 565, 567 (6th Cir. 1994)). See also Jackson v. Virginia, 443 U.S. 307, 319 (1979). We need not "exclude every reasonable hypothesis but guilt." United States v. Avery, 128 F.3d 966, 971 (6th Cir. 1997).

2. Conspiracy Count

a. Existence of a Conspiracy

Each defendant challenges the existence of the alleged conspiracy under 21 U.S.C. § 846 to distribute crack cocaine as prohibited by 21 U.S.C. § 841. In order to show a conspiracy under § 846, the government must prove, beyond a reasonable doubt, "(1) an agreement to violate drug laws, (2) knowledge and intent to join the conspiracy, and (3) participation in the conspiracy." United States v. Welch, 97 F.3d 142, 148 (6th Cir. 1996), cert. denied, 519 U.S. 1134 (1997).

The government argues that the SNP is a drug conspiracy. The defendants concede that they were street-level crack dealers, but they contend that the SNP was merely a neighborhood identification of a loose-knit group of friends and acquaintances, most of whom grew up in the Short North area. The SNP was not a gang, they claim, and more importantly, it was not a drug conspiracy. There was no business-like distribution network, hierarchy of leadership, or organization of members. The different members of the SNP claim to have sold their drugs independently of one another, choosing their own locations, price points, and working hours. The government is left, argue the defendants, with a claim akin to an antitrust-like restraint of trade.

An agreement need not be express to form a conspiracy, however, and the fact that the SNP had no hierarchy and was not run like a business does not make the finding of a conspiracy legally impossible. "A tacit or mutual understanding among the parties is sufficient," United States v. Forrest, 17 F.3d 916, 918 (6th Cir.), cert. denied, 511 U.S. 1113 (1994), to qualify as an agreement in a conspiracy charge. No formal agreement is required. See Avery, 128 F.3d at 970-71; United States v. Sanchez, 928 F.2d 1450, 1457 (6th Cir. 1991). The defendants' focus on lack of hierarchy, formal structure, and developed distribution networks certainly establishes that the SNP was less than a sophisticated narcotics business, but no threshold level of organizational sophistication is necessary to the formation of a conspiracy. A conspiracy requires: "(1) An object to be accomplished. (2) A plan or scheme embodying means to accomplish that object. (3) An agreement or understanding between two...