U.S. v. Nichols

• Decision Date: 27 August 1990
• Docket Number: 1510,Nos. 1330,D,s. 1330
• Citation: 912 F.2d 598
• Parties: UNITED STATES of America, Appellee, v. Lorenzo NICHOLS, Defendant, Appeal of Claudia MASON and Char T. Davis, a/k/a "Shocker", Defendants. ockets 90-1048, 90-1078.
• Court: U.S. Court of Appeals — Second Circuit

Page 598

912 F.2d 598

UNITED STATES of America, Appellee, v. Lorenzo NICHOLS, Defendant,

Appeal of Claudia MASON and Char T. Davis, a/k/a "Shocker",

Defendants.

Nos. 1330, 1510, Dockets 90-1048, 90-1078.

United States Court of Appeals, Second Circuit.

Argued June 7, 1990.

Decided Aug. 27, 1990.

Philip Katowitz, New York City, for defendant-appellant Claudia Mason.

Susan G. Kellman, New York City, for defendant-appellant Char T. Davis.

Leslie R. Caldwell, Asst. U.S. Atty., E.D.N.Y. New York City (Andrew J. Maloney, U.S. Atty., David C. James, Asst. U.S. Atty., of counsel), for appellee.

Before VAN GRAAFEILAND, MINER and ALTIMARI, Circuit Judges.

ALTIMARI, Circuit Judge:

Defendants-appellants Claudia Mason and Char T. Davis appeal from judgments of conviction, entered in the United States District Court for the Eastern District of New York (Edward R. Korman, Judge), for conspiracy to distribute and possession with intent to distribute cocaine base. On this appeal, defendant-appellant Mason contends that the district court committed reversible error by failing to provide the jury with a "missing witness" charge. Mason also challenges the district court's refusal to suppress evidence discovered in her safe deposit box and its failure to instruct the jury on the government's failure to preserve certain evidence. Defendant-appellant Davis does not challenge his conviction but does challenge the sentence imposed on him. According to Davis, the district court improperly departed from the application of Sentencing Guidelines' Criminal History Category III to the application of Criminal History Category VI. For the reasons set forth below, we affirm the judgments of the district court.

BACKGROUND

The convictions of Claudia Mason and Char T. Davis arose from their involvement in a large and violent narcotics organization, known as the "Bebos." The Bebos, under the direction of Howard "Pappy" Mason, distributed approximately one kilogram of crack per week between February At trial, the evidence established that Howard Mason's mother, defendant-appellant Claudia Mason, was an active liaison between her son and the Bebos organization. According to Viola Nichols, an accomplice in the Bebos' distribution operation, Claudia Mason regularly relayed instructions concerning narcotics activity from Howard Mason to Bebos members. In addition to acting as a conduit for instructions, Claudia Mason monitored the activities of various Bebos members to ensure their compliance with Howard Mason's instructions. For example, in March 1988, Claudia Mason informed Viola Nichols that Bebos member Albert Ingram would be "stripped up" for failing to properly perform his narcotics-related duties, which included the delivery of cocaine and money. Shortly thereafter, Claudia Mason ordered Ingram to return narcotics and money, as well as a van and a car he had been using, to her and Bebos member Vanessa Branch. The amount of narcotics and money returned by Ingram fell short of Mason's expectations, however, and she demanded that he produce additional narcotics and money. Claudia Mason's role in the Bebos organization was corroborated by approximately 65 recorded phone conversations intercepted under a court-authorized wiretap on her home telephone.

1988 and mid-August 1988. Howard Mason controlled the Bebos while incarcerated in various New York State prisons, using prison telephones and personal visits to transmit his orders.

The government also introduced evidence obtained in a search of Claudia Mason's home. The search was authorized by a warrant based upon a confidential informant's affidavit describing Mason's recruitment of the informant to package narcotics at Mason's residence and numerous wiretapped phone conversations. The search was led by FBI Agent Theodore Gardner. Agent Gardner testified that the following items were discovered in a bedroom in Claudia Mason's home: approximately one kilogram of crack, some of which had been packaged into vials; a loaded handgun; a pair of earrings marked "Bebo"; and, two safe deposit box keys. FBI Agent Christopher Favo testified that a search of Claudia Mason's safe deposit box revealed jewelry, some of which was marked "Bebo", and $19,800 in cash. The cash was seized and, in accordance with FBI procedure, was deposited with the United States Marshals. Neither the dates nor the serial numbers of the currency were recorded before it was deposited.

Mason was convicted of conspiracy to distribute and possess with intent to distribute cocaine base and of possession with intent to distribute cocaine base. She was sentenced to two concurrent terms of 120 months' imprisonment.

The role of defendant-appellant Char T. Davis in the Bebos organization was less commanding, though no less active. The trial testimony of Viola Nichols established that, several times per week, Davis transported processed crack from Bebos member Paris Williams to various Bebos workers for packaging. Davis then distributed the packaged crack to street sellers and collected sales proceeds, which he used, in part, to pay the workers. Nichols' description of the role played by Davis in the Bebos organization was corroborated by wiretap evidence. Following trial, Davis was convicted of conspiracy to distribute and possess with intent to distribute cocaine base.

Davis' record of criminal activity did not begin with the Bebos' narcotics operation. Davis' presentence report describes his attempted murder of Rufus Parsely in 1986. In the attack on Parsely, Davis inflicted five gunshot wounds, leaving the victim partially paralyzed. Because Davis was a juvenile at the time of his attempted murder of Parsely, he received a lenient sentence for the attack. Immediately upon his release from juvenile jail in June 1988, Davis became involved in the Bebos organization's street-level operations. However, his unlawful activities following release from juvenile jail were not limited to the Bebos' narcotics operation. At a November 1989 pre-sentencing hearing, the government introduced evidence of Davis' involvement in the brutal murder of Charlene Baskerville. At that hearing, New Based upon the evidence of Davis' involvement in the Baskerville murder, his violent juvenile record, and his involvement in the Bebos narcotics activities, the district court departed from Criminal History Category III to Criminal History Category VI in sentencing Davis. Application of the sentencing range corresponding to Category VI yielded a sentence for Davis of 405 months' imprisonment, an upward departure of 112 months. This appeal followed.

York City Police Detective Richard Eisner testified that on June 17, 1988, Baskerville was attacked with a cast-iron frying pan while in her apartment, which was located in the building in which Davis lived. She was found, with her head in a plastic garbage bag, lying in the entry-way of her blood-covered apartment. Five days after the attack, Baskerville died as a result of her injuries. Detective Eisner further testified that several unidentified persons living in the vicinity of Baskerville's apartment building indicated that Char T. Davis was involved in the murder. Moreover, a confidential informant provided a written statement implicating Davis in the Baskerville murder. That statement provided a detailed description of the attack on Baskerville which was consistent with the physical evidence found at the crime scene. The government also proffered the testimony of Viola Nichols that Davis had told her he killed a girl named Charlene in June 1988 by hitting her on the head. The sentencing judge considered this testimony "worthy of belief" because Nichols "had no special motive even to mention this to the government," let alone to lie about it. Finally, the testimony of Davis' family members that Davis was at home during the time period in which the Baskerville murder was committed was found not to be credible by the sentencing judge. Wiretap evidence indicated that Davis was not in his apartment during that period.

DISCUSSION

A. Defendant-appellant Mason

Defendant-appellant Mason claims that the district court erred by failing to provide the jury with a "missing witness" charge. She contends that a missing witness charge was required because, while numerous law enforcement agents were involved in the August 1988 search of her home, only the search team's leader testified at trial. According to Mason, Agent Gardner was not present at the initial entry of her home and only the non-testifying agents could have revealed the exact location of the seized narcotics upon the agents' initial entry. Mason did not propose any specific language for the charge and rejected the "uncalled witness" charge initially offered by Judge Korman. She now claims that the Judge's eventual refusal to provide any missing witness charge was reversible error. We disagree.

A missing witness charge permitting the jury to infer that the testimony of an unproduced witness would have favored one party is appropriate if production of the witness is "peculiarly within [the] power" of the other party. United States v. Torres, 845 F.2d 1165, 1169 (2d Cir.1988) (quoting Graves v. United States, 150 U.S. 118, 121, 14 S.Ct. 40, 41, 37 L.Ed. 1021 (1893)). However, if the unproduced witness is "equally available to both sides, 'the failure to produce is open to an inference against both parties.' " Id. (quoting 2 Wigmore, Evidence Sec. 288, at 208 (Chadbourn rev.1979) (emphasis in original)). Should a witness that is equally available to both parties not be called to testify, the district court may, as it initially offered in this case, provide a charge which permits unfavorable inferences against either party. See United States v. Carr, 584 F.2d 612, 618 (2d Cir.1978), cert. denied, 440 U.S. 935, 99 S.Ct. 1280, 59 L.Ed.2d 494 (1979); United States v. Erb, 543 F.2d 438, 444-45 (2d Cir.), cert. denied, 429 U.S. 981, 97 S.Ct. 493, 50 L.Ed.2d...