U.S. v. McLean

• Decision Date: 16 April 1998
• Docket Number: No. 96-4061,96-4061
• Citation: U.S. v. McLean, 138 F.3d 1398 (11th Cir. 1998)
• Parties: 49 Fed. R. Evid. Serv. 282, 11 Fla. L. Weekly Fed. C 1232 UNITED STATES of America, Plaintiff-Appellee, v. Floyd McLEAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1398

138 F.3d 1398

49 Fed. R. Evid. Serv. 282, 11 Fla. L. Weekly

Fed. C 1232

UNITED STATES of America, Plaintiff-Appellee, v.Floyd McLEAN, Defendant-Appellant.

No. 96-4061.

United States Court of Appeals Eleventh Circuit.

April 16, 1998.

Michael Zelman, Coral Gables, FL, for Defendant-Appellant.

William A. Keefer, U.S. Atty., Linda Collins Hertz and Lisette Reid, Asst. U.S. Attys., Miami, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before EDMONDSON and BIRCH, Circuit Judges, and FAY, Senior Circuit Judge.

FAY, Senior Circuit Judge:

A grand jury charged Floyd McLean in a four-count indictment with one count of conspiracy to possess with intent to distribute crack cocaine, two counts of possession with intent to distribute crack cocaine, and one count of doing so while carrying a firearm.A jury convicted him on all counts, and he was sentenced to 405 months on the conspiracy and possession charges and 60 months, to be served consecutively, on the firearm charge.He appeals both the conviction and the sentence, and we affirm.

I

The Gucci Hole is the street name for a location in Fort Lauderdale, Florida infamous for the sale of cocaine and marijuana.There, it is alleged, interested buyers can purchase cocaine of unrivaled purity and popularity, earning it the "Gucci" label.This location, and the organization that sold narcotics therein, was the subject of an investigation by federal and state law enforcement officers.The appellant was a high-ranking member of the Gucci Hole organization and a target of the investigation.McLean received powder cocaine from the leader of the organization, "Tux" a/k/a Terrance Mohamed, "cooked" it into crack cocaine, and distributed it to street peddlers.McLean then collected the sales proceeds and returned them to Terrance Mohamed.

In order to facilitate the investigation of the Gucci Hole, law enforcement officers set up an apartment in Fort Lauderdale from which they conducted undercover operations.They equipped the apartment with video and audio monitoring devices.Two confidential informants, "Barbara" and "Richard," contacted McLean in order to set up a controlled sale of a quantity of crack cocaine and an AK-47 assault rifle at the undercover apartment.Richard pretended to be a drug dealer who wanted to buy "Gucci" crack cocaine for distribution in Georgia, and Barbara pretended to be Richard's cousin.McLean had several recorded telephone conversations with the informants and agreed to deliver 550 rocks of crack in return for $5,500.

On October 28, 1993, McLean arrived at the undercover apartment accompanied by his wife and co-defendantAnthea Harris.In view of the informants and the video camera surreptitiously taping the encounter, McLean retrieved a bag containing 600 rocks of crack cocaine from his wife's purse.From this bag he gave Barbara 550 rocks and allowed her to count them, returning the excess 50 rocks to his wife's purse.McLean counted the $5,500 that was his payment and handed it to his wife, who put the money in her purse.Before leaving the undercover apartment, McLean showed the informants that he was carrying a nine millimeter handgun.Neither McLean nor Harris was immediately arrested for their participation in the controlled sale.

On March 23, 1994, in connection with undercover law enforcement directed at implicating Terrance Mohamed, Barbara and Richard set up a meeting at which McLean and Lionel Mohamed, Terrance's brother, were present.McLean and Lionel Mohamed left the meeting together.Police officers stopped the car that McLean was driving and arrested Lionel Mohamed pursuant to a warrant.A nine millimeter Glock semi-automatic handgun belonging to McLean was seized from the glove compartment, but McLean was not arrested or charged with the firearm's possession at that time.

On May 18, 1994, McLean and Harris were arrested outside of their marital residence in Miramar, Florida.Harris consented in writing to the police's request to search the residence.Agents found 590.6 grams of crack cocaine in a cabinet under the kitchen sink, a ledger used for recording drug sales, and other drug paraphernalia used in "cooking" powder into crack cocaine.After being advised of their rights, both McLean and Harris gave statements to investigators.When asked if she knew where McLean obtained the drugs, Harris replied, "He gets it from 'Tux'."

A grand jury returned a four-count indictment against McLean and his wife.They both were charged with conspiracy to possess with intent to distribute crack cocaine in violation of 21 U.S.C. §§ 841(a)(1)and846; with possession of crack cocaine with intent to distribute on October 28, 1993 in violation of 21 U.S.C. § 841(a)(1); and with possession of crack cocaine with intent to distribute on May 19, 1994 also in violation of 21 U.S.C. § 841(a)(1).McLean individually was charged with the additional count of using or carrying a firearm in relation to the aforementioned drug trafficking crimes in violation of 18 U.S.C. § 924(c).

The case against McLean and his wife proceeded to trial on September 20, 1994.During its case-in-chief, the government offered the testimony of law enforcement officers and of the confidential informants Barbara and Richard to describe the October 1993 controlled sale, the March 1994 traffic stop and handgun seizure, and the May 1994 arrest and search.To corroborate this testimony, the government presented audio tapes of telephone conversations between McLean and the informants and both video and audio recordings of the controlled sale.Harris testified in her own behalf and explained that she did not know that, on October 28, 1993, she was accompanying her husband on a drug deal.She also testified that she was unaware of the presence in her house of the crack cocaine and other drug paraphernalia.McLean did not testify at trial, but in his closing argument McLean's counsel argued that there was no conspiracy between McLean and his wife and that McLean was unaware of the cocaine slab found under his kitchen sink.

In addition to the evidentiary issues and prosecutorial conduct discussed at length below, the trial was marked by McLean's counsel's repeated requests for a severance of the trials of McLean and his wife.Upon Harris's counsel's opening statement, it was clear that Harris's theory of the case was that while she suspected her husband's participation in the drug trade, she had neither direct knowledge of nor participation in those illicit activities.Therefore, she did not conspire with her husband and had no knowledge of either the crack cocaine in her purse or under her kitchen sink.She so testified in her case-in-chief.Although McLean does not appeal the district court's denial of his motion to sever, he does argue that Harris's testimony incriminated him and that had the trials been severed, she could have exercised her spousal privilege to refuse to testify against him.

The jury returned verdicts of guilty against McLean on all four counts charged in the indictment.The jury convicted Harris on two counts, but acquitted her on the charge of possession with intent to distribute the 590 grams of crack found under her sink.McLean filed a timely motion for new trial on the grounds that the district court should have granted his motion to sever his wife's trial.This motion was amended to add one additional ground--that McLean's trial counsel was ineffective because he did not urge Harris's counsel to inform Harris that she retained a spousal privilege not to testify against her husband.The motion was denied.

The government gave McLean notice before trial that it would seek to enhance his sentence because of his prior conviction in the Florida courts for delivery of cocaine.At his sentencing hearing, McLean argued that the government could not do so because of its failure to comply with 21 U.S.C. § 851.That section details the procedures the government must follow in order to prove a defendant's prior conviction for sentence enhancement purposes.The district court rejected these argument that are discussed in more detail below.The court agreed with the government that McLean's base offense level for the three trafficking charges was 40, including a four level enhancement for McLean's role as organizer and leader, resulting in a guideline range of 324 to 405 months.The court sentenced McLean to the maximum 405 months for the trafficking charges and to 60 months, to be served consecutively, for the firearm charge.

McLean presses four arguments on appeal.First, he argues that the cumulative effect of the erroneous admission of prejudicial evidence and the prosecutor's clear misconduct during his closing argument required a mistrial.Second, he argues that the evidence was insufficient to support a conviction on the charge of possession with intent to distribute the 590.6 gram slab of crack found under his kitchen sink.Third, he contends that the district court abused its discretion by not granting McLean a new trial on the ground that his trial counsel was ineffective.Last, he attacks his sentence arguing that he did not receive the required notice of the government's intent to seek an enhancement based on his prior conviction.

II

McLean's main contention on appeal is that the district court abused its discretion when it denied his trial counsel's repeated requests for a mistrial on the grounds of erroneously admitted prejudicial evidence and prosecutorial misconduct.He argues that the district court erroneously admitted a large amount of prejudicial evidence related to McLean's involvement in the Gucci Hole organization, overruling his attorney's objections and denying his motion for mistrial.In addition, McLean argues that evidence of his previous arrest and punishment by a Florida court for cocaine delivery was improperly admitted in the government's...