U.S. v. Jones

• Decision Date: 17 December 1996
• Docket Number: No. 95-1593,95-1593
• Citation: 102 F.3d 804
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Phillip Steven JONES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 804

102 F.3d 804

UNITED STATES of America, Plaintiff-Appellee, v. Phillip Steven JONES, Defendant-Appellant.

No. 95-1593.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 1, 1996.

Decided Dec. 17, 1996.

Kathleen Moro Nesi, Asst. U.S. Attorney, argued and briefed, Office of the U.S. Attorney, Detroit, MI, for Plaintiff-Appellee.

Robert J. Dunn, argued and briefed, Midland, MI, for Defendant-Appellant.

Before: KRUPANSKY, BOGGS, and SILER, Circuit Judges.

SILER, Circuit Judge.

Defendant, Phillip Jones, appeals his sentence and conviction for conspiracy to possess with intent to distribute cocaine base, distribution of cocaine base, attempt to possess cocaine with intent to distribute and use of a firearm during a drug trafficking crime. He argues that the evidence is insufficient to support his convictions for conspiracy, attempt and use of a firearm. He further contends that the district court erred in not awarding him a downward departure or granting him a dismissal for sentencing entrapment and in holding him responsible for 2.2 kilograms of cocaine.

I. Facts

Jones and his co-conspirator cousin, Alibere Herring, were indicted for various gun and drug-related offenses. Jones was convicted under counts one, three, four and five involving: conspiracy to possess with intent to distribute and to distribute cocaine and cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a)(1) [count one]; distribution of cocaine base and aiding and abetting in violation of 21 U.S.C. § 841(a)(1) [count three]; attempt to possess with intent to distribute cocaine and aiding and abetting in violation of 21 U.S.C. §§ 841(a)(1), 846 and 18 U.S.C. § 2 [count four]; and use and carrying of firearms during and in relation to a drug trafficking crime and aiding and abetting in violation of 18 U.S.C. §§ 2 and 924(c) [count five]. The district court sentenced Jones to concurrent terms of 120 months each on counts one, three, and four and a consecutive term of thirty years on count five.

The case against Jones arose as part of a larger investigation that focused on high-level cocaine and heroin suppliers in the Detroit metropolitan area. This investigation began in early 1992 and eventually uncovered a suspect who was dealing drugs within the Michigan state prison system. The suspect began cooperating as an informant. In June 1993, the informant told Agent Richard Crock of the Drug Enforcement Administration ("DEA") that Jones, then a prison inmate, had approached him and expressed an interest in purchasing narcotics once he was discharged from prison.

Subsequently, Jones was released from prison and, on June 13, 1993, undercover DEA Agent Crock, posing as a large-scale drug trafficker, received a phone call from Jones who expressed a desire to meet with Crock. On June 21, 1993, Jones again contacted Crock and expressed a desire to meet with him to purchase cocaine. Crock then arranged a meeting with defendant Jones in an apartment rented by undercover agents.

The meeting took place on June 23, 1993, in Detroit. Agent Crock and Agent Joseph Peterson, both undercover, were present at the meeting. Jones explained that he had just been released from prison two weeks before ¹ and that he wanted to return to the cocaine business. He stated that he had four individuals who wanted to purchase three kilograms of cocaine each, but that he needed help in getting reestablished in the cocaine business because of his prior incarceration. He explained that he was currently in business with Herring, and he informed the agents that he had already established eight operational cocaine houses. The agents explained that they dealt in large quantities of cocaine and that the current price was at least $23,000 per kilogram. Jones indicated that he could come up with between $15,000 and $20,000 in twenty-four hours.

On June 29, 1993, undercover DEA agents met with Jones and Herring to view their distribution houses. The group then proceeded on a site-by-site tour of seven houses. The first stop was a duplex described by Jones as one of his biggest money makers. Inside, the agents observed what appeared to be packaging for crack cocaine. Next door was another one of the houses. Inside, Herring displayed a folding stock AK-47 with a banana clip. Herring indicated that this gun was for protection, and Jones stated that they had three more AK-47s and other weapons at other locations. The group then travelled to the various other sites, including "Reggie's Deli," owned by Reggie Guynes, where Jones explained that money could be laundered and deals could be negotiated. Guynes's residence was also offered as a location where deals could be made and drugs stored. Once the tour was complete, Jones informed the agents that the houses represented the west side of his organization and that he hoped to expand to the east side once he obtained more narcotics.

Various discussions and negotiations then took place between Jones, Herring and the agents over the next several weeks. It was decided that Herring and Jones would sell the agents a quantity of cocaine. The agents insisted on this transaction so that Herring and Jones could prove that they were not working for the police. The transaction took place on September 29, 1993, at Reggie's Deli when an undercover agent paid Herring $425 for 12.2 grams of crack cocaine. The agent asked where Jones was and Herring responded that he had just left to get something to eat. ²

Subsequently, Jones called the agents on several occasions to negotiate a price and to inquire when he could begin receiving cocaine. On November 3, 1993, Agent Crock contacted Jones to advise him that the cocaine would be available in seven to ten days. Crock also offered to accept guns in partial payment of, or as collateral for, the cocaine. Jones indicated that he could possibly make available AR-15s, M-16s and AK-47s.

On November 11 and 12, Jones engaged in telephonic negotiations regarding the number of kilograms of cocaine that he was interested in purchasing. He also indicated that he had located a Mac-10 machine gun. Later, on November 17, 1993, Jones called and indicated that he was ready to proceed with the exchange. That same day, Jones, Herring, Crock and other undercover agents met at the undercover apartment where they negotiated the exchange of cocaine for firearms and money. Jones and Herring informed the agents that they had the weapons in their vehicle for inspection.

The group then proceeded outside to a car, where they met Devon McMillan, an associate of Jones. Herring opened the trunk and displayed four weapons: a Cobray Mac-11, 9mm fully automatic machine gun with twenty-one live rounds; an Ingram Mac-10, 9mm with twenty-one live rounds; a Smith and Wesson .357 Magnum revolver with five live rounds; and a Cline's AK-47 assault rifle with seven live rounds. Two of the guns had been altered so as to obliterate their serial numbers. Once Crock observed the weapons, the agents arrested Jones, Herring and McMillan.

II. Sufficiency of the Evidence

A Rule 29 motion is a challenge to the sufficiency of the evidence. "[W]hen the sufficiency of the evidence is challenged on appeal, the standard of review is 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime....' " United States v. Swidan, 888 F.2d 1076, 1080 (6th Cir.1989) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)(emphasis in original)). On review, this court "may conclude a conviction is supported by sufficient evidence even though the circumstantial evidence does not 'remove every reasonable hypothesis except that of guilt.' " United States v. Clark, 928 F.2d 733, 736 (6th Cir.) (per curiam) (quoting United States v. Stone, 748 F.2d 361, 363 (6th Cir.1984), cert. denied, 498 U.S. 822, 111 S.Ct. 71, 112 L.Ed.2d 45 (1990)), cert. denied, 502 U.S. 846, 112 S.Ct. 144, 116 L.Ed.2d 110 (1991) and 502 U.S. 885, 112 S.Ct. 240, 116 L.Ed.2d 195 (1991).

A. Count One: Drug Conspiracy Conviction

Jones argues that the evidence is insufficient to prove that he was involved in a drug conspiracy with Herring and that no rational jury could arrive at such a conclusion. He opines that he was nothing more than a "big talker" with no ability, desire or capital to support his puffing. He notes that he was not present for the only sale of cocaine from Herring to the DEA, and any time he was with Herring, it was just as a "tag-along." Also, he asserts that, because the agents observed no cocaine, the tour of the alleged drug houses proved nothing. Finally, Jones indicates that the gun exchange was the DEA's idea, and he claims that he played no part in the production of the guns.

Jones's argument is untenable. From the facts, there is ample evidence that could support a conspiracy conviction. Obviously, it would be expected that Jones would have no money and that his drug ring would not already be operational, for he had just been released from prison. Moreover, contrary to Jones's assertions, he initiated much of the contact with the undercover agents. Also, he explained that he was working with Herring and that, together, they had customers and cocaine houses established to move the cocaine.

Furthermore, Jones arranged for and then escorted the agents on a visit to seven drug houses that he had established. During the tour, both Jones and Herring were actively involved. Herring showed the agents the AK-47, and Jones stated that they had three more. Jones also discussed the various uses to which the houses could be put, and he expressed his desire to expand to the east side.

Thus, there is much evidence in the record supporting the conclusion that Jones and Herring were working together in a conspiracy to set up a large-scale drug operation. Viewing all of the evidence in the light most favorable to the government,...