U.S. v. Long

• Decision Date: 15 June 1999
• Docket Number: No. 97-4324,DEFENDANT-APPELLANT,PLAINTIFF-APPELLEE,97-4324
• Parties: (6th Cir. 1999) UNITED STATES OF AMERICA,, v. ROBERT LONG, Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 471

190 F.3d 471 (6th Cir. 1999)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. ROBERT LONG, DEFENDANT-APPELLANT.

No. 97-4324

U.S. Court of Appeals, Sixth Circuit

Argued: June 15, 1999

Decided: July 27, 1999

Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 96-00068--George C. Smith, District Judge. [Copyrighted Material Omitted] David C. Young (argued and briefed), Sunbury, Mann & Young, Columbus, Ohio, for Defendant-Appellant.

Robyn Jones (argued and briefed), Office of the U.S. Attorney, Columbus, Ohio, for Plaintiff-Appellee.

Before: Guy, Cole, and Clay, Circuit Judges.

OPINION

Ralph B. Guy, Jr., Circuit Judge.

Defendant, Robert Long, was convicted following a joint trial with three co-defendants on 26 charges arising out of a long-running multi-state conspiracy to distribute cocaine and launder the proceeds. Long was convicted of conspiracy to distribute and to possess with intent to distribute cocaine, 21 U.S.C. § 846; eight counts of possession with intent to distribute cocaine and two counts of distribution of cocaine in differing amounts, 21 U.S.C. § 841 and 18 U.S.C. § 2; use of communication facility to facilitate the distribution of cocaine, 21 U.S.C. § 843(b) and 18 U.S.C. § 2; conspiracy to commit money laundering, 18 U.S.C. § 1956(h); twelve counts of money laundering, 18 U.S.C. § 1956(a)(1)(B)(i) and 18 U.S.C. § 2; and operating a continuing criminal enterprise (CCE), 21 U.S.C. § 848¹.

On appeal, defendant argues that (1) there was insufficient evidence to support his conviction on the CCE charge; (2) he was prejudiced by the denial of a separate trial from co-defendant Mark Ross; (3) the court erred in denying a mistrial on the grounds of prosecutorial misconduct; and (4) he received ineffective assistance of counsel. Long also contends that the district court erred in finding he should be held responsible for more than 50 kilograms of cocaine in calculating the applicable sentencing guideline range. After careful review of the record and the arguments on appeal, we affirm.

I.

Robert Long was charged along with 30 other defendants in a 113-count indictment alleging a conspiracy to distribute cocaine beginning in late 1985 or early 1986 and continuing until the time of the indictment in May 1996. Robert Long, Robert Camero, and Donald Mohler, Jr., joined in a scheme to distribute marijuana in Columbus, Ohio, through Mohler's aunt, Karen Climer Collins Long (Karen Long)². It was after the arrest of several couriers in 1986 that Robert Long and Donald Mohler switched to the distribution of cocaine, which they obtained from a supplier named Rodolfo Fernandez. Although Mohler left the conspiracy in 1988 to start his own operation, Fernandez continued to supply Robert and Karen Long with cocaine. In early 1992, Mohler and his source, Juan Sierra, replaced Fernandez as the Longs' cocaine supplier. The Longs continued to distribute cocaine until search warrants were executed in the summer of 1995.

Nearly all of the 31 defendants indicted in this case pleaded guilty or were dismissed. The four remaining defendants, Robert Long, Mark Ross, Rodolfo Fernandez, and Stivi Nechovski, were tried together after the district court denied motions for severance filed by Long and Fernandez. All four defendants were charged in the cocaine conspiracy count. In addition, Mark Ross was charged with two counts of money laundering and one count of conspiracy to commit money laundering. Robert Long was charged with the 26 offenses recited above. The jury acquitted Nechovski, but convicted Fernandez, Long, and Ross on all counts. Robert Long was sentenced to 360 months' imprisonment on the drug charges, including the CCE charge; 240 months on the money laundering charges; and 48 months on the charge of using of a communication facility, with the sentences on all counts to run concurrently. This appeal followed.

II.

A. Sufficiency of Evidence to Support CCE Conviction

Defendant does not challenge the sufficiency of the evidence to support his conviction on any of the charges, except for his conviction for engaging in a continuing criminal enterprise (CCE). In order to sustain a conviction for engaging in a CCE, the government must prove (1) a felony violation of a federal narcotics law; (2) as a part of a "continuing series of violations" of federal drug laws; (3) "in concert with five or more persons"; (4) for whom defendant is an organizer, supervisor, or manager; and (5) from which he derives substantial income or resources. See 21 U.S.C. § 848(c). Long contends that the government failed to prove he acted in concert with five or more persons for whom he was an organizer, supervisor, or manager. Rather, Long claims that the evidence showed, at most, that he was a supervisor or manager of three other conspirators; Robert Camero, Marilyn Ross, and Donald Ross.

We have held that merely proving that the individuals had a buyer-seller relationship with the defendant is not sufficient to support a conviction for engaging in a CCE. See United States v. King, 169 F.3d 1035, 1042 (6th Cir. 1999) (citing United States v. Elder, 90 F.3d 1110, 1122-23 (6th Cir. 1996)). The relationship requirement is flexible, however, such that the defendant's relationship with the five other individuals need not exist at the same moment, those individuals need not have a relationship with one another, and they may have different roles in the criminal enterprise. See United States v. English, 925 F.2d 154, 157 (6th Cir. 1991). In addition, the defendant need not have had personal contact with these individuals as long there is evidence that they were involved with the defendant and not independent of his control. See King, 169 F.3d at 1042 (citing United States v. Ward, 37 F.3d 243, 250 (6th Cir. 1994)). A broker or courier under the defendant's direction, someone who stores drugs for the defendant, or one who collects or launders drug proceeds, would have sufficient relationship under the statute. See United States v. Ward, 37 F.3d 243, 247 (6th Cir. 1994).

Disavowing managerial control or supervision of Karen Long's family and friends, Robert emphasizes evidence that Karen kept track of the money and gave day-to-day direction to her family members with respect to quantities and prices for the cocaine. The fact that Karen was a supervisor and was the one who gave direction to some of the distributors does not negate the evidence that Robert also was an organizer, supervisor, and manager of these individuals. There was evidence that, although suppliers and participants changed, Robert and Karen Long were principals in the conspiracy from the late 1980s until the end. They directed and paid others to transport and deliver cocaine, store and package cocaine, distribute cocaine to their customers, collect money, and launder money. Karen Long testified that she and Robert were in business together, made decisions together, and, while she usually was the one who had contact with her family members, Robert was often in the background. Karen denied "calling the shots" and said she would "ask Bob first." Robert Long paid the couriers who traveled to Florida to get cocaine from their supplier. Charles Sullivan, Sr., testified that he made several trips to Florida to transport cocaine and money for Robert Long. Sally and Lonnie Huff transported cocaine from Florida and stored it in their home. Robert showed Sally how to measure and package a shipment of cocaine for distribution. Before Camero, Marilyn Ross, and Donald Ross became the principal distributors for the Longs, distribution was handled by Sullivan, Medreth and Donald Mohler, Sr., and Bill and Carolyn Climer.

In determining the sufficiency of the evidence, we must "refrain from independently judging the credibility of witnesses or the weight of the evidence." United States v. Welch, 97 F.3d 142, 148 (6th Cir. 1996), cert. denied, 519 U.S. 1134 (1997). We find that the evidence taken in the light most favorable to the government was sufficient to lead a rational trier of fact to find beyond a reasonable doubt that Robert acted in concert with at least five individuals for whom he acted as an organizer, supervisor, or manager. See Jackson v Virginia, 443 U.S. 307, 319 (1979)³.

B. Severance

The decision to deny a motion for severance and separate trial rests within the wide discretion of the district court and will not be reversed absent an abuse of discretion. See United States v. Moore, 917 F.2d 215, 219 (6th Cir. 1990). There is a preference for joint trials of defendants who are indicted together in accordance with Fed. R. Crim. P. 8(b) in order to promote efficiency and avoid inconsistent verdicts. See Zafiro v. United States, 506 U.S. 534, 537 (1993). Defendants are not entitled to severance merely because they may have a better chance of acquittal in separate trials. Id. at 540. Even "[m]utually antagonistic defenses are not prejudicial per se." Id. at 538. The district court should grant severance to properly joined defendants "only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Id. at 539.

Robert Long's motions for severance before and during trial were denied. Conceding that joinder was proper, Robert Long argues that severance should have been granted because joint trial with Mark Ross, his former attorney and alleged co-conspirator, compromised specific trial rights and prevented the jury from making a reliable judgment. Specifically, Mark Ross admitted his own violations of drug laws and currency reporting requirements, which implicated defendant, and received potentially privileged information during his earlier representation of defendant. The fact that the testimony of Mark Ross was inculpatory, rather than exculpatory, is simply not a basis for requiring...