U.S. v. Howard
| Decision Date | 14 December 1990 |
| Docket Number | Nos. 89-5710,89-5749,s. 89-5710 |
| Citation | 918 F.2d 1529 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey David HOWARD, Ricky Leroy Stanley, Derrick Smith, Samuel J. Cooper, Jr., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Thomas F. Almon, Miami, Fla., for Howard.
Carlos Canet, Miami, Fla., for Stanley.
Glen J. Koch, Koch and Palomino, Miami, Fla., for Smith.
Gregory A. Prebish, Asst. Federal Public Defender, Kathleen Cooper, Miami, Fla., for Cooper.
Bruce Lowe, Linda Collins Hertz, Anne M. Hayes, Asst. U.S. Attys., Miami, Fla., for U.S.
Appeal from the United States District Court for the Southern District of Florida.
Before CLARK and BIRCH, Circuit Judges, and HENDERSON, Senior Circuit Judge.
This appeal involves interpretation of the federal kidnapping statute, 18 U.S.C. Sec. 1201. Appellants Jeffrey D. Howard, Ricky L. Stanley, Samuel J. Cooper and Derrick Smith each attack the sufficiency of the evidence supporting their convictions for conspiracy to kidnap and attempted kidnapping. The appellants also claim that the district court erred by failing to instruct the jury on the nature of the confinement necessary to support a kidnapping conviction, and by failing to grant appellants' motions to compel election and/or consolidation of the charges contained in an allegedly multiplicitous indictment. Howard contests his conviction under 18 U.S.C. Sec. 924(c) for carrying a firearm during the commission of a crime of violence; that conviction cannot stand if his convictions for the predicate kidnapping offenses are reversed for insufficient evidence. 1 Finally, Howard appeals the district court's application of the enhanced penalty provision of 18 U.S.C. Sec. 924(e), the Armed Career Criminal Act, based upon his prior criminal history. After reviewing the record, we affirm in part and reverse in part.
On September 15, 1988, Drug Enforcement Administration (DEA) Special Agent Craig Cleveland and a confidential informant met with defendants Ferdella Cooper and Frederick Miller 2 in Miami, Florida, at a restaurant near the Miami airport. The parties met to discuss a cocaine deal. After another meeting the next morning, Agent Cleveland, working undercover, agreed to purchase five kilograms of cocaine for approximately $90,000. The participants agreed to consummate the transaction that afternoon at a Holiday Inn near the airport.
Agent Cleveland returned to his room at the Holiday Inn while Ferdella Cooper, Samuel Cooper and Ricky Stanley met outside the hotel lobby. DEA surveillance agents also noticed Derrick Smith in a red Chevrolet Blazer, which was parked on the lot at the Holiday Inn; Samuel Cooper entered the Blazer after meeting with Ferdella Cooper and Stanley. Ferdella then telephoned Cleveland's room, and when Cleveland came to the lobby Ferdella introduced him to Stanley. Ferdella told Cleveland that Stanley had the cocaine, but Stanley asked to see Cleveland's money before the deal could be completed. Cleveland and Stanley walked to Cleveland's car, where Cleveland unlocked the trunk and showed Stanley $90,000 in "buy" money. Both men then returned to the hotel and waited for the Blazer to arrive with the cocaine.
After a few minutes, Stanley told Samuel Cooper to get the Blazer, which had been moved to a Winn-Dixie supermarket parking lot across the street from the Holiday Inn. When Cooper did not return, Stanley left Cleveland to check on the delay. Shortly thereafter, the Blazer drove into the lot and parked next to Cleveland's undercover car, which held the "buy" money in the trunk. Stanley stepped out of the front passenger seat and told Cleveland that he wanted to make the exchange at the Blazer, but Cleveland asked to see the cocaine first.
Stanley pushed the Blazer's front seat forward and showed Cleveland a small brown bag in the back seat that allegedly contained the cocaine. The bag was stuffed with other plastic bags to appear full but was otherwise empty. When Cleveland leaned into the Blazer to get a better look at the bag, he saw Jeffrey Howard and Samuel Cooper in the back seat and Smith in the driver's seat. All three men held firearms which were later determined to be fully loaded.
At that moment, Stanley placed a gun in Cleveland's ribs, told him to get in the Blazer, and attempted to force him in when Cleveland resisted. Cleveland grabbed Stanley's gun by the barrel and pushed it down, then backed away, pulled his own gun, and yelled "Police!" When Stanley raised his gun and pointed it at Cleveland, the DEA agent fired at Stanley but missed. After Smith jumped out of the Blazer on the passenger side and raised his gun, Cleveland also fired at him. Cleveland fired a total of five rounds, with one bullet wounding Smith in the buttocks as he fled. The appellants were arrested by DEA agents while attempting to escape. Their weapons were recovered from the Blazer and the surrounding area. No cocaine was found in the Blazer or on the person of any appellant.
In December, 1988, a federal grand jury returned a sixteen-count superseding indictment ("indictment") against appellants. The indictment charged all appellants with conspiracy to distribute cocaine, in violation of 21 U.S.C. Sec. 846 (Count 1); conspiracy to kidnap a Federal agent, 18 U.S.C. Sec. 1201(a)(5) (Count 2); and attempted kidnapping of a Federal agent, 18 U.S.C. Secs. 1201(a)(5), 1201(d), and 2 (Count 3). Counts 4 through 7 charged Cooper, Stanley, Howard, and Smith, respectively, with carrying a firearm during the commission of a drug trafficking crime or crime of violence, 18 U.S.C. Sec. 924(c). Counts 8, 9, 11 and 12 charged the respective appellants under 18 U.S.C. Sec. 111 for assault with a deadly weapon on Agent Cleveland, and Count 10 charged Stanley with the same crime against another DEA agent, Richard Conine. Finally, Counts 13 and 14 charged Cooper and Howard, respectively, with possession of a firearm by a convicted felon, 18 U.S.C. Secs. 922(g)(1), 924(a)(1)(B), and 924(e)(1); Counts 15 and 16 charged Stanley and Smith, respectively, with the same crime, 18 U.S.C. Secs. 922(g)(1) and 924(a)(1)(B).
The district court severed Counts 1 through 12 from the remaining counts in January, 1989. The first jury trial began on January 10, 1989, and a verdict was announced on January 18. Counts 13 through 16 were tried on May 23, 1989, and a verdict was announced on May 24. The appellants were found guilty as follows: Cooper on Counts 1, 2, 3, 4 and 13; Stanley on Counts 1, 2, 3, 5, 9 and 15; Howard on Counts 2, 3, 6 and 14; and Smith on Counts 2, 3, 7 and 16.
At trial, each appellant argued that the indictment was multiplicitous and moved to compel consolidation and/or election of charges. Their motions were denied by the trial judge, and appellants contend that such denial was error. We review the district court's decision for abuse of discretion. United States v. Lach, 874 F.2d 1543, 1548 (11th Cir.1989).
An indictment is multiplicitous if it charges a single offense in more than one count. Ward v. United States, 694 F.2d 654, 660-61 (11th Cir.1983). The test for multiplicity, articulated by the Supreme Court in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), is "whether each provision requires proof of a fact which the other does not." See also Missouri v. Hunter, 459 U.S. 359, 368-69, 103 S.Ct. 673, 679, 74 L.Ed.2d 535 (1983). Appellants claim the indictment improperly charged them, in separate counts, with several "crimes" that are merely part of a single course of conduct. Upon conviction, appellants also contend that they were subjected to multiple punishments for that single course of conduct. For the reasons that follow, these arguments are without merit.
If we examine the elements of each count charged against any appellant, this indictment passes scrutiny under the Blockburger test. For example, Stanley was convicted for conspiracy to distribute cocaine, conspiracy to kidnap Agent Cleveland, the attempted kidnapping of Agent Cleveland, carrying a firearm during the commission of a drug trafficking crime or crime of violence, assault with a deadly weapon on Agent Cleveland, and possession of a firearm by a convicted felon. He was also indicted for assault with a deadly weapon on Agent Conine, but that charge was later dropped.
The cocaine charge in Count 1 stands alone. The conspiracy to kidnap charge in Count 2 is different from the attempted kidnapping charge in Count 3 because conspiracy requires proof of an agreement between two or more people, while attempt does not; attempt requires proof that a substantial step has been taken towards completion of the crime, while conspiracy does not. United States v. Corley, 824 F.2d 931, 936 (11th Cir.1987); United States v. Forbrich, 758 F.2d 555, 557 (11th Cir.1985). Although conspiracy also requires proof of an overt act that furthers the criminal venture, the overt act may be otherwise innocuous and need not pose any danger to society or the intended victim of the conspiracy. United States v. Alvarez, 610 F.2d 1250, 1255 n. 5 (5th Cir.), rev'd on other grounds, 625 F.2d 1196 (5th Cir.1980) (en banc), cert. denied, 451 U.S. 938, 101 S.Ct. 2017, 68 L.Ed.2d 324 (1981). In contrast, a "substantial step" towards a criminal attempt usually poses a direct threat to interests protected by law. Id., 610 F.2d at 1254 n. 3.
The firearms charges may be distinguished similarly. In Count 5, Stanley was accused of carrying a firearm during the commission of the crimes enumerated in Counts 1, 2 and 3. In Counts 9 and 10, Stanley was accused of using that firearm to assault two DEA agents. Count 15 charged Stanley with possession of a firearm by a convicted felon. In other words, if Stanley participated in the "course of conduct" enumerated in Counts 1, 2 and 3, he...
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