U.S. v. Moss

• Decision Date: 28 January 1994
• Docket Number: Nos. 92-1132,92-1136,92-1144 and 92-1155,s. 92-1132
• Citation: 9 F.3d 543
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert MOSS (92-1132); Ronald Kohn (92-1136); Joann Climpson (92-1144); and Randy Richardson (92-1155), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 543

9 F.3d 543

UNITED STATES of America, Plaintiff-Appellee, v. Robert MOSS (92-1132); Ronald Kohn (92-1136); Joann

Climpson (92-1144); and Randy Richardson

(92-1155), Defendants-Appellants.

Nos. 92-1132, 92-1136, 92-1144 and 92-1155.

United States Court of Appeals, Sixth Circuit.

Argued April 26, 1993.

Decided Nov. 18, 1993.

Rehearing and Suggestion for Rehearing

En Banc Denied Jan. 28, 1994.

Kathleen Moro Nesi, Asst. U.S. Atty. (argued and briefed), Detroit, MI, for U.S. in Nos. 92-1132, 92-1136 and 92-1155.

Christopher A. Andreoff (argued and briefed), Detroit, MI, for Robert Moss.

Neil H. Fink (argued and briefed), Neil H. Fink, David A. Koelzer, David A. Koelzer, Law Offices of Neil H. Fink, Birmingham, MI, for Ronald Kohn.

Kathleen Moro Nesi, Asst. U.S. Atty. (argued and briefed), Stephen L. Hiyama, Asst. U.S. Atty., Detroit, MI, for U.S. in No. 92-1144.

Kenneth R. Sasse (argued and briefed), Detroit, MI, for Joann Climpson.

L.C. John (argued and briefed), Detroit, MI, for Randy Richardson.

Before: JONES and BATCHELDER, Circuit Judges, and ENGEL, Senior Circuit Judge.

NATHANIEL R. JONES, Circuit Judge.

Defendants Robert Moss (Moss) and Ronald Kohn (Kohn) appeal their convictions and sentences on one count each of conspiracy to import and conspiracy to distribute marijuana. Defendant Randy Richardson (Richardson) appeals his convictions and sentences for conspiracy to distribute marijuana and laundering drug money. Defendant Joann Climpson (Climpson) appeals her conviction and sentence for laundering drug money. Defendants contend on appeal: (1) that the district court failed to make a finding that a conspiracy was established by a preponderance of the evidence; (2) that testimony that Moss solicited a co-conspirator to bribe a witness was improperly admitted into evidence at trial; (3) that privileged information was improperly admitted into evidence; (4) that there was an impermissible variance between the indictment and the evidence presented at trial; (5) that improper hearsay testimony was admitted at trial; (6) that insufficient evidence supports defendant Climpson's conviction; (7) that defendants received ineffective assistance of counsel; and (8) that defendants were sentenced incorrectly under the Sentencing Guidelines. We affirm the judgments of conviction, but remand for resentencing of defendants Richardson and Climpson.

I.

In March 1989, a camper truck driven by Ed Brady was discovered crossing the United States-Mexico border with 329.25 pounds of marijuana hidden in the camper ceiling. Supervised by U.S. Customs agents, Brady drove the truck to its intended destination in Tucson, Arizona where three more people involved in the smuggling were arrested. Those arrested, Terry Collins, Tom Beranek and Eli Moreno, later pleaded guilty to drug charges in the United States District Court in Arizona. Collins and Beranek began cooperating with the government after they were sentenced. The ensuing investigation revealed a smuggling ring involved in the importation of marijuana from Mexico to South Dakota and Michigan. The indictment of the defendants resulted from the investigation of the marijuana smuggling operation.

On March 4, 1991, a federal grand jury in the Eastern District of Michigan issued an indictment charging Moss and Kohn with one count each of conspiracy to import marijuana in violation of 21 U.S.C. Secs. 952 and 960 and conspiracy to distribute marijuana in violation of 21 U.S.C. Secs. 841 and 846. A superseding indictment was issued on April 26, 1991, in which Richardson and Climpson were added to the conspiracy to distribute marijuana charge, and were also charged with laundering money in violation of 18 U.S.C. Secs. 1956 and 2. Finally, a second superseding indictment was issued in which it was charged that Moss continued to act in furtherance of the conspiracy as late as March 22, 1991, by soliciting a co-conspirator to bribe a potential government witness.

A jury trial commenced in the district court on September 6, 1991. Thirteen days of testimony from forty-two witnesses ensued, during which details emerged of a marijuana smuggling operation spanning at least eight years and involving at least fourteen participants. Hence, the facts of the case are relatively involved.

The evidence adduced at trial was that Terry Collins and an associate named David Jaeger purchased quantities of marijuana for resale from a Mexican man named Albert Sanchez sometime in 1981. Later, Collins and Jaeger first met defendant Moss, who was an associate of Albert Sanchez, when Moss delivered a suitcase containing 30 pounds of marijuana to them in Rapid City, South Dakota. Moss negotiated the price of the marijuana with Collins and Jaeger. Thereafter, larger marijuana deliveries were arranged through Moss and were delivered to Rapid City in camper trucks. Ultimately, Moss asked Collins and Jaeger to begin driving loads of marijuana from Texas to Rapid City and Detroit, and they agreed.

Collins made numerous deliveries of marijuana of at least 60 to 90 pounds from Texas to Rapid City and Detroit during the following year or two. Jaeger made a single delivery of an unspecified amount of marijuana during this period. Collins and Jaeger testified that Moss directed their deliveries.

In late 1985, Collins was directed to meet Moss in Arizona. The smuggling operations were conducted from Arizona after that point due to increased security problems at the Texas-Mexico border. Thereafter, Moss directed over twenty deliveries of marijuana made by Collins, Jaeger, Boyd Kennedy, and Beranek in loads of about 300 pounds each over the next three and one-half years. Jaeger and Collins were also directed by Moss to deliver large sums of money to facilitate the smuggling operations. Deliveries of marijuana made to the Detroit area during this time were made to both Moss and Kohn.

After the winter of 1987-88, Jaeger was instructed that Kohn would begin overseeing the delivery operations and that Moss would undertake a lesser role in the smuggling ring. The following winter, Tom Beranek was enlisted to deliver marijuana. That winter, Beranek and Collins made three or four trips to Arizona and delivered loads of marijuana of about 300 pounds each. Most of the marijuana was delivered to Detroit at the direction of Kohn. Then, the camper driven by Brady was stopped at the Arizona-Texas border leading to the arrests of Collins, Beranek and Eli Moreno.

Next, Kohn asked his associate, defendant Richardson, to take 100 pounds of marijuana because Kohn was nervous due to the arrests. Richardson's ex-girlfriend, Jacqueline Hines testified that she was present at Richardson's house when Kohn made this request. Richardson took the marijuana and stored it in a residence owned by an acquaintance.

Evidence was introduced that Richardson was a marijuana dealer in the Detroit area who generally sold quantities of marijuana of one pound or less, and whose main source of marijuana was Kohn. Hines testified that Richardson kept profits made from his marijuana sales in a green bag which contained as much as $10,000-$15,000. Hines sometimes counted the money in the green bag. Richardson occasionally told Hines that he had to meet Kohn to give Kohn money. He removed $5,000 from the bag before meeting Kohn on one such occasion.

Hines testified that Richardson smoked marijuana with defendant Climpson, who is also the grandmother of Richardson's son. Further, Hines accompanied Richardson in his car as he made deliveries of 1/4 to 1 pound of marijuana to Climpson's house. Richardson told Hines that he sometimes left his green money bag at Climpson's house.

On June 23, 1989, Richardson bought a house. Climpson picked Richardson up and drove him to the closing. Hines testified that Richardson took his green money bag with him and that over $10,000 was contained in the bag at that time. That day, Climpson obtained a cashier's check in her name at a local bank which was used by Richardson at the closing. Climpson paid cash for the cashier's check in the amount of $9,400.02 using 32 $100 bills and other smaller bills. Hines testified that Richardson returned after the closing, and that the green bag was empty at that time. Hines testified that Richardson later told her that, if questioned about the source of the money used to purchase the house, he could say that he borrowed the money from Climpson.

Finally, evidence was introduced that David Jaeger and his attorney came to Detroit from South Dakota for Jaeger's arraignment in this case on March 21, 1991. After arraignment, Jaeger and his attorney were invited to Attorney Timothy Murphy's nearby office to discuss the case. Murphy represented Moss at that time and ultimately at trial. When Jaeger and his attorney arrived at Murphy's office, Moss and Kohn were present.

During the meeting, copies of several hundred pages of documents were provided by Murphy to Jaeger's attorney to assist Jaeger's defense. The possibility that Terry Collins, Boyd Kennedy and Tom Beranek were cooperating with the government was discussed during the meeting. At some point, Moss and Jaeger left the meeting together to take a walk outside. During this walk, Moss asked Jaeger to offer Kennedy $25,000 in gold coins to change his testimony or to refuse to testify. Ultimately, Jaeger pleaded guilty to conspiracy to distribute marijuana in this case and testified against the remaining defendants at trial.

The jury was instructed without pertinent objection. The jury returned verdicts of guilty on all counts except with respect to Climpson, who was found guilty of laundering money, but not guilty of conspiracy to distribute marijuana.

Moss was sentenced to two concurrent 292 month terms of imprisonment with a 5 year term of supervised release and was fined $25,000. Kohn was sentenced to two concurrent 188 month terms of imprisonment with a 5 year period of supervised release. Richardson was...