U.S. v. Gore

• Decision Date: 21 August 1998
• Docket Number: Docket No. 97-1027
• Citation: 154 F.3d 34
• Parties: UNITED STATES of America, Appellee, v. Andre GORE, aka Sha; Kwaun Counts; Danny Johnson; Arnold Craig Mullins, aka Fruit, aka Ronald Davis; Julius Holloway, aka Kenneth Robinson, aka Bill Hayes; Corey Roche, aka Jeffrey L. Preston, aka Cory Williams, aka Kasheen Roche; James Brown; Elliot Hernandez; Dwight Hughes, Joseph Lane; Andre Moore; Jose Rolon; Jamade Humbert; Kareem Billups, aka Beebo; Sean Billups, aka Sean Tedder; Sharnseearay Goddard, aka Diana Brassell; Reno Lyons; Reginald Rice; Tauheedah Walker; Edward Curtis Barnes, aka FNU LNU John Doe, aka Norman Flick; Willie L. Tedder, aka Ike, Alfredo Cohoon, Defendants, Harvey Wells, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

Page 34

154 F.3d 34

UNITED STATES of America, Appellee, v. Andre GORE, aka Sha; Kwaun Counts; Danny Johnson; Arnold Craig Mullins, aka Fruit, aka Ronald Davis; Julius Holloway, aka Kenneth Robinson, aka Bill Hayes; Corey Roche, aka Jeffrey L. Preston, aka Cory Williams, aka Kasheen Roche; James Brown; Elliot Hernandez; Dwight Hughes, Joseph Lane; Andre Moore; Jose Rolon; Jamade Humbert; Kareem Billups, aka Beebo; Sean Billups, aka Sean Tedder; Sharnseearay Goddard, aka Diana Brassell; Reno Lyons; Reginald Rice; Tauheedah Walker; Edward Curtis Barnes, aka FNU LNU John Doe, aka Norman Flick; Willie L Tedder, aka Ike, Alfredo Cohoon, Defendants Harvey Wells, Defendant-Appellant.

Docket No. 97-1027.

United States Court of Appeals Second Circuit.

Argued Dec. 10, 1997.

Decided Aug. 21, 1998.

David A. Lewis, New York City (Henriette D. Hoffman, The Legal Aid Society, Federal Defender Division, Appeals Bureau, New York City, of counsel), for Defendant-Appellant.

Bernard J. Malone, Jr., Assistant United States Attorney, Albany, NY (Thomas J. Maroney, United States Attorney for the Northern District of New York, Donald T. Kinsella, Assistant United States Attorney, Albany, NY, of counsel), for Plaintiff-Appellee.

Before: OAKES, PARKER and WOOD, ^* Circuit Judges.

PARKER, Circuit Judge:

Defendant Harvey Wells ("Wells") appeals from a judgment of conviction and sentence entered January 6, 1997, in the United States District Court for the Northern District of New York (Frederick J. Scullin, Judge ) following a trial by jury. Wells was convicted of: (i) engaging in a criminal conspiracy to distribute heroin, in violation of 21 U.S.C. § 846; (ii) the distribution of heroin on July 13, 1995, in violation of 21 U.S.C. § 841; and (iii) the possession of heroin with the intent to distribute on July 13, 1995, in violation of 21 U.S.C. § 841, which resulted in the imposition of a sentence of 27 months' imprisonment on each count, to be served concurrently, plus a term of three years' supervised release, and a special assessment of $50 per count.

I. BACKGROUND

In the Spring of 1995, the Albany Police Department began a long-term investigation into heroin trafficking in Albany. Primarily, the police investigation relied on confidential informants--specifically, people arrested for drug-related crimes who agreed to cooperate with the government in exchange for leniency in charging and sentencing. In March 1995, the police arrested Bruce Taft ("Taft") on narcotics charges, and he began working as a confidential informant.

On the morning of July 13, 1995, Taft met police Detectives Dennis Bradt and Thomas Fitzpatrick. He made a drug buy and gave the detectives the heroin he purchased. Then, Taft drove to another location, followed by the detectives. Taft went inside a building and bought two glassine envelopes of heroin, branded with the name "Fuji Power" from Wells. Taft paid $45.00 for 0.11 grams of heroin. He wore a concealed recording device. While Taft was in Wells's presence, the following conversation was tape-recorded (and later introduced as evidence at Wells's trial):

HARVEY: Come in.

BRUCE: Forty five.

HARVEY: That's for now, what did you owe me, what did you owe me.

BRUCE: I owe a couple. I'm working. I'll be back.

HARVEY: You guys, boy. I need some money myself. I need, I just can't work with that.

BRUCE: Yeah, yeah, I know.

HARVEY: Hear what I'm saying. For now people pay 25 for Fuji ... because ... [inaudible] ... boy

BRUCE: Yeah, it is good.

HARVEY: You always get something good and people don't appreciate it. Yeah man, I don't want to lose face with that dude man because he always has something decent and he always comes up right. Never tapped, never in a bag, never messed up, yeah so I should do him right. Man ... [inaudible] ... Make money!

BRUCE: Do yourself right. Do yourself right. Take care of yourself.

HARVEY: What you mean, man?

BRUCE: Take care of yourself. I'll be back, I'll take care of it.

HARVEY: I'm trying ... doing that right by me ... [inaudible] ... I can feel good by doing right by me. [Inaudible]. You know man ... I [inaudible] don't get a fucking soda out of it....

BRUCE: You look like you're going to the beach.

HARVEY: I'm going to one of my spots ... read a book ... stuff I do. Man cool, calm collected. Chilly Willy.

BRUCE: Here you go....

On September 20, 1995, the government filed a Superseding Indictment with 65 Counts charging 23 individuals, including Wells, with involvement in a narcotics conspiracy and in narcotics-related offenses. The district court granted Wells's motion to proceed pro se with a court-appointed legal advisor, Thomas Flannery. Wells was the only one of the many defendants charged in the Superseding Indictment whose case went to trial.

A four-day jury trial was held in September 1996. The government's case for all three counts rested entirely on the single transaction between Wells and Taft. The government introduced the tape-recording of their conversation and questioned Taft about its contents on the stand. The government called other witnesses to demonstrate the validity of the tape-recording, to corroborate Taft's account of the transaction, and to identify the drugs involved and their chain of custody. For instance, Detectives Bradt and Fitzpatrick of the Albany Police Department testified about making the tape-recording and their dealings with Taft as a confidential informant. In addition, the government called the arresting officer and two persons who worked for the federal Drug Enforcement Agency ("DEA")--a chemist who testified about the nature and quantity of the drugs and an agent who testified about the chain of custody of those drugs.

At trial, the government sought to show that because Wells sold heroin with the label "Fuji Power," he was part of a conspiracy to distribute heroin using this brand name. While some witnesses testified to their familiarity with the heroin brand name "Fuji Power" and its prevalence in the Albany area, no evidence, other than this one sale, linked Wells with a conspiracy to distribute or possess with intent to distribute "Fuji Power" heroin. On summation, the government argued that because Wells had to have a supplier in order to sell his drugs, he was de facto part of a narcotics conspiracy to sell "Fuji Power." Further, the government argued that Wells's comments on the tape-recording verified the existence of a supplier to whom Wells would "lose face" were he not paid by Taft. No evidence was presented as to the existence of the person who was supposedly mentioned by Wells in the tape-recording. No witness testified to Wells's participation in any conspiracy nor to his knowledge of the illegal ends of such a conspiracy. Harvey Wells did not take the stand in his own defense.

On September 17, 1996, the jury rendered a verdict of guilty against Wells on all three counts as charged. On December 19, 1996, the district court held Wells's sentencing hearing, finding an Offense Level of 12 and a Criminal History Category of V, which together carry a sentencing range of 27 to 33 months imprisonment. As a result, the district court sentenced Wells to three concurrent terms of 27 months' imprisonment, three years' supervised release and a special assessment of $50 per count.

On December 30, 1996, Wells filed a timely notice of appeal. On March 18, 1997, this Court dismissed Wells's appeal for failure to prosecute. Then, on April 8, 1997, this Court re-instated Wells's appeal sua sponte, ordering appointment of new counsel pursuant to the Criminal Justice Act.

II. DISCUSSION

Wells raises three principal issues upon appeal. First and foremost, he contends that the government failed to adduce evidence at trial sufficient as a matter of law to convict him of conspiracy to possess and distribute heroin. He claims that the July 13, 1995, tape recording of his conversation with confidential informant Taft and his one drug sale fail to demonstrate any conspiratorial agreement and thus the proof at trial was inconclusive to show his participation in a narcotics conspiracy under 21 U.S.C. § 846. Second, Wells argues that the district court erred as a matter of law by allowing the jury to convict him of both distributing a controlled substance and possession with the intent to distribute that substance based on evidence of the same single sale of heroin. Finally, Wells contends that he should receive a new trial because of the spillover prejudice he suffered from the evidence introduced on the improper conspiracy conviction.

A. Sufficiency of the Evidence of Narcotics Conspiracy

"A defendant who challenges the sufficiency of evidence bears a heavy burden." United States v. Pipola, 83 F.3d 556, 564 (2d Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 183, 136 L.Ed.2d 122 (1996). This Court must consider "the evidence in the light most favorable to the government." Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). "We must credit every inference that the jury may have drawn in favor of the government." United States v. Masotto, 73 F.3d 1233, 1241 (2d Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 54, 136 L.Ed.2d 18 (1996) (quotation marks and citation omitted). The jury's verdict must be sustained, if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). These principles apply whether the evidence being reviewed is direct or circumstantial. See, e.g., Glasser, 315 U.S. at 80, 62 S.Ct. 457.

Wells was convicted of violating Section 846 of Title 21 of the United States Code. That section provides:

[A]ny person who attempts or conspires to commit any offense in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

21 U.S.C. § 846. In order to...