U.S. v. Jones
| Decision Date | 17 July 1992 |
| Docket Number | 91-2091,Nos. 91-1987,91-2083,91-2008,s. 91-1987 |
| Citation | 965 F.2d 1507 |
| Parties | 35 Fed. R. Evid. Serv. 1310 UNITED STATES of America, Appellee, v. Florence L. JONES, also known as Florence Roulette, Appellant. UNITED STATES of America, Appellee, v. Arthur W. HOOKS, Appellant. UNITED STATES of America, Appellee, v. Eric Wayne TRAVIS, Appellant. UNITED STATES of America, Appellee, v. James E. ROULETTE, III, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Larry C. Pace, Kansas City, Mo., argued, for appellant Florence Jones.
Timothy R. Brownlee, Kansas City, Mo., argued, for appellant Arthur Hooks.
John R. Cullom, Kansas City, Mo., argued, for appellant Eric Travis.
James Bandy, Kansas City, Mo., argued, for appellant James Roulette.
Marietta Parker, Kansas City, Mo., argued, for appellee.
Before McMILLIAN, Circuit Judge, BRIGHT, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.
Eric Wayne Travis, James E. Roulette, III, Florence L. Jones and Arthur W. Hooks appeal their convictions of conspiracy to distribute cocaine base (crack), distributing crack, and other related offenses and the heavy sentences imposed on them (Travis--life in prison without parole; Roulette--forty-four years seven months in prison; Jones--fifteen years eight months in prison; Hooks--ten years in prison). Appellants raise numerous arguments which we discuss in the body of this opinion. We are obliged to affirm, except that we vacate and remand Hooks's sentence, No. 91-2008, and, in an addendum, the writer recommends en banc review of Roulette's sentence, No. 91-2091.
Collectively, appellants argue that the district court deprived them of a fair trial because: (1) the district court erred in denying defendants a public trial by placing a screen obstructing the public's view of a Government witness; (2) the district court erred in failing to excuse a juror because her husband spoke with a Government witness; (3) the district court erred in denying appellants the opportunity to cross-examine informant Ivan Sanders regarding a prior arrest; (4) the district court erred in permitting the prosecutor to make prejudicial remarks to the jury in closing arguments; and (5) the district court erred in permitting the Government to introduce evidence pertaining to conduct of Hooks and Roulette that occurred before the time alleged in the indictment for conspiracy.
Arthur W. Hooks argues that he should be resentenced because the Government presented insufficient evidence connecting him to a conspiracy to distribute at least fifty grams of crack.
James E. Roulette, III, argues: (1) the Government presented insufficient evidence to convict him of one of his firearm-drug trafficking counts; (2) the district court improperly applied the Sentencing Guidelines (United States Sentencing Commission, Guidelines Manual (Nov.1990) [hereinafter U.S.S.G.] in calculating Roulette's sentence; (3) the district court erred in giving him an additional twenty-year sentence for twice violating 18 U.S.C.A. § 924(c) (West Supp.1991).
Eric Wayne Travis argues that he deserves a new trial because the district court erred in improperly admitting testimony referring to an incriminating statement of a non-testifying co-conspirator, in violation of the Bruton rule. Travis also appeals his mandatory minimum sentence of life in prison without parole, arguing that it constitutes cruel and unusual punishment.
Florence Jones argues that she should be resentenced because the Sentencing Guidelines violate her fifth amendment due process rights.
The Government indictment charged twelve counts as follows:
1. Beginning on February 15, 1990, Travis, Roulette, Jones and Hooks conspired to distribute more than fifty grams of crack in violation of 21 U.S.C.A. §§ 841(a)(1), (b)(1)(A), 846 (West Supp.1991).
2. Roulette and Jones sold more than five grams of crack on April 27, 1990 in violation of 21 U.S.C.A. § 841(a)(1), (b)(1)(A).
3. On May 2, 1990, Roulette sold more than fifty grams of crack in violation of 21 U.S.C.A. § 841(a)(1), (b)(1)(A).
4. On May 11, 1990, Roulette sold more than five grams of crack in violation of 21 U.S.C.A. § 841(a)(1), (b)(1)(B).
5. On May 11, 1990, Roulette used a firearm in relation to a drug trafficking crime in violation of 18 U.S.C.A. § 924(c) (West Supp.1991).
6. On May 30, 1990, Travis and Roulette sold more than fifty grams of crack in violation of 21 U.S.C.A. § 841(a)(1), (b)(1)(A).
7. On May 30, 1990, Travis and Roulette possessed with intent to distribute more than fifty grams of crack in violation of 21 U.S.C.A. § 841(a)(1), (b)(1)(A).
8. On May 30, 1990, Travis and Roulette used two firearms in relation to a drug trafficking crime in violation of 18 U.S.C.A. § 924(c).
9. On May 30, 1990, Travis, being a person convicted of two prior felonies, did possess two firearms in violation of 18 U.S.C.A. §§ 922(g), 924(a)(2).
10. From April 27, 1990 until May 30, 1990, Jones maintained a place for the purpose of distributing crack in violation of 21 U.S.C.A. § 856(a).
11. On May 1, 1990, Hooks sold crack in violation of 21 U.S.C.A. § 841(a)(1), (b)(1)(C).
12. On May 10, 1990, Hooks sold crack in violation of 21 U.S.C.A. § 841(a)(1), (b)(1)(C).
At trial, the Government presented the following version of the facts to the jury:
In mid-March 1990, Ivan Sanders called the Drug Enforcement Unit of the Kansas City Police and told them he wanted to turn in a drug house. Sanders admitted to police that he had used crack, but now wanted to come clean. On April 27, 1990, Sanders contacted Kansas City narcotics detective Ray Tisinger and told him that a Los Angeles gang member known as "Big Daddy" was delivering large quantities of crack to a James Roulette in Kansas City.
Later, on April 27, Tisinger and Sanders reached Roulette by his pager and offered to purchase a one-half ounce of crack from Roulette at his residence, 1008 East 26th Street, Apartment 1, in Kansas City. When they traveled to Roulette's apartment, Florence Jones, Roulette's mother, met them at the door and showed them into the living room, where they waited for Roulette. When Tisinger paid with police funds for the 14.35 grams of crack he received from Roulette, Jones provided Tisinger with change.
On May 2, 1990, Tisinger met with Roulette in his car at 33rd Street and Agnes Avenue and bought 57.08 grams of crack from Roulette for $2,700.
On May 11, 1990, Tisinger and Sanders went to Roulette's residence after Roulette told Sanders he had large quantities of crack to sell. Roulette led them to his bedroom, where they encountered two men who appeared to be Roulette's bodyguards. After disagreeing about the terms of their deal, Roulette picked up a 9-millimeter automatic pistol, loaded it and aimed it in Tisinger's direction. Tisinger and Sanders agreed to pay $1,300 for one ounce of crack and Roulette gave them twenty-six grams. Sanders and Tisinger also witnessed a .357 magnum pistol lying on the bed next to Roulette.
On May 29, 1990, Roulette contacted Sanders and told him that "Big Daddy" would be in town bringing large quantities of crack and Sanders arranged to meet with Roulette the next day.
Tisinger and Sanders arrived at Roulette's apartment on May 30, 1990 at 11:30 a.m. Florence Jones greeted them and observed while Tisinger purchased 52.37 grams of crack from Roulette in the living room for $2,700. Roulette led Sanders to his bedroom and Sanders observed "Big Daddy," also known as Eric Wayne Travis, counting the money Roulette had received from Tisinger.
On May 30, 1990, at 3:30 p.m., Kansas City police arrested Roulette in his car. At 5:30 p.m., Kansas City police executed a search warrant for Roulette's residence. Inside, police found Jones and Travis and some other buyers. Travis requested a shirt and shoes from a British Knights bag in the bedroom. A search of the bedroom revealed, lying next to the British Knights bag, a plastic Marriott bag with Travis's fingerprint on it containing forty smaller bags holding 1,052.50 grams of crack, $7,715 lying on the bed, a Fendi brand suitcase claimed by Roulette containing $1,700, a scientific scale, a loaded .357 magnum pistol and a loaded 9-millimeter automatic pistol.
After his arrest, Roulette talked to Kansas City police detective Robert Starbuck after acknowledging his Miranda rights and signing a waiver. Roulette detailed to police his own drug dealing and his relationship with Travis. He stated that Travis visited Kansas City from Los Angeles, bringing large quantities of crack. Roulette stated he sold the crack for Travis, gave Travis the money he received and Travis then paid him for his "assistance." Despite confessing, Roulette later denied his guilt of the charged offenses to police and to the probation officer.
Earlier, Sanders and Tisinger did related business with Arthur Hooks. Sanders had moved in with Hooks in November 1989 after his mother had thrown him out of her house for using drugs. Sanders testified at trial that he overheard a conversation in November 1989 between Roulette and Hooks during which Hooks agreed that Roulette could sell crack at his house, at 2812 East 33rd Street in Kansas City. Shortly after that conversation, Roulette moved in with Hooks. Sanders stated he observed that between December 1989 and February 1990 Travis visited Roulette at Hooks's residence twice. During Travis's visits to Hooks's residence, Travis and Roulette "cut up" large quantities of crack in Sanders's presence. Sanders testified that beginning in February 1990 Roulette brought a total of twenty "rocks" of crack, probably weighing two grams at most, to Hooks and Sanders for them to sell. Sanders smoked one-half of the crack with Hooks and they sold the rest.
On May 1, 1990, Tisinger and Sanders visited...
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