U.S. v. Green
| Decision Date | 12 September 2002 |
| Docket Number | No. 00-4341.,00-4341. |
| Citation | 305 F.3d 422 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Willie GREEN, Jr., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Michael J. Burns (argued and briefed), Asst. U.S. Atty., Columbus, OH, for Plaintiff-Appellee.
Irwin G. Lichter (argued and briefed), Law Offices Of Irwin G. Lichter, Miami, FL, for Defendant-Appellant.
Before: GUY and BATCHELDER, Circuit Judges; COHN, Senior District Judge.*
This is a criminal case. Defendant Appellant Willie Green (Green) appeals from his conviction and sentence. He raises five errors, which include evidentiary errors, prosecutorial misconduct, an error in sentencing, and a claim that his counsel was denied a right to allocute at sentencing. We find no merit to Green's assignments of error with one exception — that the district court denied his counsel's right to allocute at sentencing. Accordingly, we affirm in part, reverse in part, and remand for resentencing.
On January 19, 1990, Green was charged with several others in a 37-count indictment in a multi-count drug conspiracy and tax evasion conspiracy/criminal enterprise. Green was charged in Count 1 with conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846, and in Counts 21, 27, 31, and 33 with possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
Green's co-defendants were Robin Warner, Michelle Angel, Joyce Richmond, Juniata Redd, Claudette Foster, and Linda Hardy. Green, Warner, Angel, Richmond and Redd went to trial on May 7, 1990. Foster and Hardy pled guilty and testified for the government. On May 18, 1990, Green was found guilty by a jury as charged in the indictment. Green was released on bond pending sentencing.
On August 24, 1990, Green failed to appear for sentencing and a bench warrant was issued. Meanwhile, Green's co-defendants were sentenced and appealed their convictions, which a panel of this court affirmed in United States v. Warner, 971 F.2d 1189 (6th Cir.1992).
Almost ten years later, on April 26, 2000, Green was arrested on the outstanding warrant. He was living in Florida under an assumed name. On June 27, 2000, a single count information was filed charging him with failing to appear, in violation of 18 U.S.C. § 3146(a)(1) and § 3146(b)(1)(A)(i). On July 27, 2000 Green pled guilty to the information and the cases were consolidated for sentencing. The plea agreement contained no agreement as to sentencing, other than to state that Green understood he faced a maximum penalty of 10 years on the failure to appear charge and that any sentence imposed would be consecutive to his drug sentence.
On October 12, 2000, Green was sentenced to 151 months imprisonment on the drug charges and 14 consecutive months on the failure to appear charge, for a total of 165 months imprisonment.
The factual background leading to Green's conviction is as follows:
Members of the organized crime drug enforcement task force in Columbus, Ohio, began investigating Robin Warner's alleged drug network in August of 1988. The investigation was spearheaded by the Internal Revenue Service, the Drug Enforcement Administration and the Columbus Police Department's Organized Crime Bureau.
Working with the United States Attorney's office, the Task Force conducted a lengthy grand jury investigation that involved the service of over 200 grand jury subpoenas. Special Agent Denise Pickering (IRS) and Detective Ronald Price utilized a confidential informant, Kevin Richmond, to record inculpatory conversations between co-conspirators Linda Hardy, Joyce Richmond and Robin Warner, the latter being interviewed July 11, 1989. Prior to the interview Pickering advised Ms. Warner that she was a target of the Grand Jury's investigation. Pickering also advised Warner of her Miranda rights. During the interview Ms. Warner cited two false sources of income, gifts and inheritance.
On July 24, 1989, Pickering and Price interviewed Juniata Redd at the residence of Redd's parents. Redd was advised of the existence of the federal grand jury investigation, and the agents explained they were investigating a drug organization headed by Robin Warner. Redd admitted she had previously taken paid trips with Warner, her cousin, to Atlanta before but maintained that she had discontinued such activity.
Marvin Warner, husband of Robin Warner, was arrested and interviewed by Special Agent Pickering and Detective Price on September 1, 1989. A search warrant was then obtained for Mr. Warner's apartment. Thereafter, Mr. Warner became a government witness. Marvin Warner was charged with two federal narcotics violations and entered into a plea agreement which required his truthful testimony.
Several other co-conspirators, Claudette Foster, Effie Thomas, Linda Hardy, John Davie and Leo Buggs, were interviewed and re-interviewed. Each provided detailed documentary information (bank records, pager records and personal records) linking Robin Warner to cocaine trafficking. Handwriting exemplars were received from each defendant and were compared with hotel reservation cards at several Atlanta hotels and other related documents. Positive handwriting identifications were made for Warner, Angel and Richmond. An additional probable handwriting identification was made for Angel. Similarities in handwriting were found to exist in questioned documents examined relating to defendant Willie Green.
Voluminous telephone records, car rental records, hotel registrations, credit card bills and bank records were utilized to trace and corroborate each alleged cocaine trip to Atlanta, Georgia. Summary exhibits were prepared by Price and Pickering for each charged trip to Atlanta.
The evidence adduced at trial established that, during the calendar years 1985-1988, Robin Warner failed to report a minimum of $217,829.00 on her federal income tax returns. A review of the record indicates that the vast majority of the unreported income was determined by documenting purchases of large-ticket luxury items: a new house, a swimming pool, an entertainment system, a sable bedspread for $5,577.75, ten sable pillows for $1,300.00, furniture invoices, expensive furs and clothing, a pool table and ten rental properties. Witnesses established that Robin Warner and her assistants counted thousands of dollars prior to making each trip to Atlanta to meet an individual named "Kenny." Several witnesses knew cocaine and money were stored in a safe in Robin Warner's son's bedroom closet. An examination of the hotel records revealed Robin Warner and her assistants would drive to Atlanta, remain less than 24 hours and immediately return. Telephone toll records indicated that a call would be placed to Willie Green's residence and/or business in Miami after Ms. Warner arrived in Atlanta. Thereafter, a phone call from Green's residence would be placed to a phone number in greater Atlanta. A review of the hotel registration cards indicates a check-out immediately following the call. Hotel bills indicating occupancy by Robin Warner, Joyce Richmond and Juniata Redd were paid with Robin Warner's American Express cards. Marvin Warner and Kevin Richmond identified the photograph of Willie Green as "Kenny," the drug supplier from Miami.
. . . .
Testimony at trial, if believed, established that the following individuals were supervised or managed by Robin Warner: the three housekeepers (Hardy, Foster and Thomas), Kevin and Joyce Richmond, Marvin Warner, Willie Cross [sic], Michelle Angel and Juniata Redd.
Warner, 971 F.2d at 1192-94 (internal footnote omitted).
Green was primarily implicated by the testimony of Marvin Warner, the ex-husband of Robin Warner who pled guilty and testified for the government, and Kevin Richmond, Joyce Richmond's husband. Green was the supplier of the cocaine used in the conspiracy.
Green claims five errors:
1. The trial court erred in allowing the government to call Marvin Warner's attorney to testify, in violation of the witness sequestration order, and in further limiting the defendant's cross-examination of Warner.
2. The prosecutor's comments during closing argument constituted impermissible comments on the burden of proof and on defendant's failure to testify.
3. The prosecutor improperly questioned defense witnesses about an alleged seizure of $18,000 from the defendant in 1979.
4. The district court erred in its calculation of the sentencing guidelines for the failure to appear charge in connection with the drug offense.
5. The trial court through misleading comments improperly limited counsel's right to allocution on behalf of his client.
Each claimed error will be separately considered.
Green argues that the district court erred in allowing Marvin Warner's attorney to testify despite the presence of a witness sequestration order and that the trial court should have granted a mistrial because of this. Green also argues that the trial court improperly limited the cross-examination of Marvin Warner's attorney, in violation of his right of confrontation. The district court's rulings are reviewed for an abuse of discretion. See United States v. Gibson, 675 F.2d 825, 835-36 (6th Cir.1982); see also United States v. Wall, 130 F.3d 739, 745 (6th Cir.1997) ()
The record does not contain a sequestration order. However, the government appears to concede that such an order was in place at trial, and a review of the relevant portions of the transcript tends to indicate that such an order was in place...
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