U.S. v. McManus

• Decision Date: 06 May 1994
• Docket Number: 92-5882,Nos. 92-5876,92-5881,93-5177 and 93-5215,s. 92-5876
• Citation: 23 F.3d 878
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Janice McMANUS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Alton Ray TRUESDALE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Tennison Alexander HARRIS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Alvin TRUESDALE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Connell ROBINSON, III, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 878

23 F.3d 878

UNITED STATES of America, Plaintiff-Appellee, v. Janice McMANUS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Alton Ray TRUESDALE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Tennison Alexander HARRIS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Alvin TRUESDALE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Connell ROBINSON, III, Defendant-Appellant.

Nos. 92-5876, 92-5881, 92-5882, 93-5177 and 93-5215.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 1, 1993.

Decided May 6, 1994.

ARGUED: Jesse J. Waldon, Jr., Waldon & Dominguez, Charlotte, NC; Scott E. Lawrence, Scott E. Lawrence Atty. at Law, Cornelius, NC; Marshall A. Swann, Charlotte, NC; Janet C. Thomas, Charlotte, NC, for appellants. Kenneth Davis Bell, Asst. U.S. Atty., Charlotte, NC, for appellee. ON BRIEF: Thomas Rochman, Cleveland, OH, for appellant Alvin Truesdale. Jerry W. Miller, U.S. Atty., Charlotte, NC, for appellee.

Before ERVIN, Chief Judge, PHILLIPS, Circuit Judge, and SPROUSE, Senior Circuit Judge.

Affirmed as to Janice McManus, Tennison Harris, and Alton Truesdale; convictions affirmed but remanded for resentencing as to Connell Robinson; convictions affirmed except remanded with instructions to vacate Sec. 846 conspiracy conviction and to resentence as to Alvin Truesdale by published opinion. Senior Judge SPROUSE wrote the opinion, in which Chief Judge ERVIN and Judge PHILLIPS joined.

OPINION

SPROUSE, Senior Circuit Judge:

Janice McManus, Alton Truesdale, Tennison Harris, Alvin Truesdale, and Connell Robinson were convicted of participation in a cocaine conspiracy, in violation of 21 U.S.C. Sec. 846. The ringleader, Alvin Truesdale, was also convicted of maintaining a continuing criminal enterprise (CCE), in violation of 21 U.S.C. Sec. 848, and several other federal offenses. All five defendants appeal the severance of their trials and the district court's sentencing determinations. In addition, Alvin Truesdale challenges the sufficiency of the evidence for his conviction of a weapons charge. He also appeals his conviction of two separate weapons violations under 18 U.S.C. Sec. 924(c), contending that he can only be convicted of one firearms count where there was a single conspiracy. Finally, he appeals his conspiracy conviction because that conspiracy was a predicate offense underlying his CCE conviction. We affirm the district court's judgment on all issues, except we remand to the district court with instructions to vacate Alvin Truesdale's conspiracy conviction, and we remand Alvin Truesdale's and Connell Robinson's sentencing determinations for more specific resolutions of the issues presented by the defendants' objections to their presentence reports.

I

On February 6, 1992, the grand jury for the United States District Court for the Western District of North Carolina returned a thirty count indictment against twenty-one individuals, charging nineteen of them with participation in a conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. Sec. 846. The ringleader, Alvin Truesdale, was also charged with maintaining a CCE in violation of 21 U.S.C. Sec. 848 and several other federal crimes.

At calendar call on July 20, 1992, the district court announced its intention to separate the cases of the eleven defendants then remaining for trial into two groups and to hold separate trials for each group, due to the logistical difficulties of trying a large number of defendants at once. ¹ The district court denied Alvin Truesdale's objection to this decision.

At trial, persuasive evidence showed that Alvin Truesdale ran a large drug operation in Charlotte, North Carolina, involving several drug houses and links with drug suppliers in Florida and New York and that each of the appellants here played some role in the conspiracy. The chief witness for the prosecution was James Scales, a friend of Alvin Truesdale, who had been involved in many of the drug operations. Trial testimony revealed that Alvin Truesdale had originally operated his illicit drug business in 1987 out of a parking lot in Charlotte. Through his association with Scales, Truesdale developed primary sources for large quantities of cocaine in Florida. After Truesdale established these contacts, Scales would drive to Florida every other week and pick up an average of two to three kilograms of cocaine for Truesdale. Generally, Scales received reimbursement for his cocaine purchases at the home of Janice McManus, Truesdale's girlfriend. McManus was often at her house when the cocaine was delivered and would allow it to be stored there.

Shortly after he began his enterprise, Truesdale opened another drug house called the "Money Pit" and established a group of workers there. He recruited a drug dealer, Rod "Big Daddy" Williams, and other low-level distributors who worked for Williams. Soon thereafter, Williams and his former employer engaged in a gun fight as a result of Williams' defection to Truesdale, and Williams shot his former drug boss with a 9mm Uzi furnished by Truesdale. Truesdale rapidly expanded his operation to include drug houses on Allen Street, in the Westwood Apartments, on Merriman Avenue, on Mayfair Avenue, in Griertown, and in a club called the "Nite Life," while maintaining his original two locations. Operators from each location were responsible for taking the proceeds of the drug sales to Truesdale at his nightclub, "The Jaguar Club."

In late 1989 Truesdale attempted to expand further, putting together several operations designed to secure large purchases of cocaine or cocaine base. These efforts were unsuccessful, and Truesdale was "ripped off" at least three times during that period, resulting in his loss of several hundreds of thousands of dollars. In retaliation, Truesdale sent Scales and two of his other employees to Florida with orders to blow up the homes of the mothers of his duplicitous sources of supply. On the way to Florida, however, Scales and the others were arrested, and the bombings never occurred.

Appellant Tennison Harris was employed by Truesdale throughout the conspiracy. He always carried weapons, and he had served as an enforcer since the beginning of the operation. Alton Truesdale, Alvin's uncle, was responsible for operating the Money Pit, in addition to making trips to Florida to obtain kilograms of cocaine. Connell Robinson was an employee of Truesdale, recruited by Rod Williams. He was responsible for overseeing drug sales at the Westwood Apartment location, the "Gate House" on Mayfair Avenue, and the Money Pit. Robinson paid other, lower-level employees of Truesdale for their drug sales and carried a 9mm Uzi.

Alvin Truesdale was convicted of the twenty-two charges against him remaining at the time of trial. Janice McManus, Alton Truesdale, and Tennison Harris were convicted on the conspiracy charge. In his separate trial, Connell Robinson was convicted on the conspiracy charge and a charge of possession with intent to distribute cocaine, in violation of 21 U.S.C. Sec. 841(a)(1). The district court, applying the United States Sentencing Guidelines, sentenced Alvin Truesdale to life imprisonment plus twenty-five years. Alton Truesdale received a sentence of 216 months; McManus a sentence of 144 months; Harris a sentence of 396 months; and Robinson a sentence of 168 months.

All defendants appeal their sentences, charging the district court with failure to make an independent resolution of factual issues in sentencing (the amount of cocaine attributable to each defendant). They also challenge the severance of the trials. In addition, Alvin Truesdale challenges the sufficiency of the evidence for his conviction of a weapons charge under 18 U.S.C. Sec. 924(c)(1) and (2), the district court's sentencing procedures under Federal Rule of Criminal Procedure 32, his conviction of both conspiracy and running a continuing criminal enterprise, his conviction for two separate Sec. 924(c) violations, and the calculation of his criminal history score.

Because Alvin Truesdale objected to the district court's severance of the defendants' trials, we review his severance claim under an abuse of discretion standard. United States v. Casamento, 887 F.2d 1141, 1149 (2d Cir.1989), cert. denied, 493 U.S. 1081, 110 S.Ct. 1138, 107 L.Ed.2d 1043 (1990). The claims of the other four defendants are reviewed under a plain error standard. ² United States v. Olano, --- U.S. ----, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); Fed.R.Crim.P. 52(b). The attacks on the district court's quantity of drugs determination is considered under the clearly erroneous standard, United States v. Adams, 988 F.2d 493, 495 (4th Cir.1993), as are the claims concerning the district court's application of Federal Rule of Criminal Procedure 32, United States v. Eschweiler, 782 F.2d 1385 (7th Cir.1986), and the calculation of Alvin Truesdale's criminal history score. United States v. Hicks, 948 F.2d 877, 881 (4th Cir.1991). Evidence challenged as insufficient is reviewed "in the light most favorable to the government." United States v. Cummings, 937 F.2d 941, 943 (4th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 395, 116 L.Ed.2d 345 (1991). Finally, we review the district court's conclusions of law de novo. United States v. Williams, 977 F.2d 866, 869 (4th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1342, 122 L.Ed.2d 725 (1993).

II

To reiterate, at calendar call on July 20, 1992, the district court announced that it was separating the eleven defendants into two trials, due to the logistical difficulties involved with trying so many individuals simultaneously. The government, responding to a court inquiry, opted to first prosecute the two Truesdales, Harris, and McManus. Robinson and another defendant, not involved here, were to be tried later. ³ At the time, Alvin Truesdale objected to being placed in the first...