U.S. v. Odom

Decision Date10 January 1994
Docket Number92-5827,92-5823,92-5824,92-5825,Nos. 92-5822,s. 92-5822
Citation13 F.3d 949
PartiesP UNITED STATES of America, Plaintiff-Appellee, v. Gary ODOM (92-5822/5823/5827); Leonard Johnson (92-5824); Terrance Bulger (92-5825), Defendants-Appellants.
CourtU.S. Court of Appeals — Sixth Circuit

Van S. Vincent, Asst. U.S. Atty. (argued and briefed), Ernest W. Williams, U.S. Atty., Nashville, TN, for U.S.

Gary Lamont Odom, pro se.

Lionel R. Barrett, Jr. (Argued and Briefed), Nashville, TN, for Gary Lamont Odom.

Christine A. Freeman (argued and briefed), Nashville, TN, for Leonard Johnson.

R. Steven Whalen (argued), Detroit, MI, for Terrance Bulger.

Terrance Bulger, pro se.

Before: KEITH and RYAN, Circuit Judges; and JOINER, Senior District Judge. **

JOINER, Senior District Judge.

Defendants Gary Odom, Leonard Johnson and Terrance Bulger, appeal their convictions and sentences for cocaine distribution and firearm offenses, challenging the admission of a co-conspirator's grand jury testimony, allegedly prejudicial comments by the trial judge, numerous evidentiary rulings, the denial of Johnson's motion for severance, the sufficiency of the evidence in support of the convictions, and the court's findings in calculating defendants' offense levels under the sentencing guidelines. In addition, Odom appeals his conviction for an independent firearm offense. For the reasons stated, we affirm all defendants' convictions and the sentences of Johnson and Odom. We vacate Bulger's sentence and remand for resentencing.

I. Arrests

On November 2, 1991, Memphis law enforcement officers executed a search warrant at a local motel, finding five men in possession of 995 grams of cocaine and four firearms. The occupants of the room, Leonard Johnson, Myron Johnson, Channce Allen, Gilbert Smith and Carl Warner, were arrested. Myron Johnson agreed to assist the police, telling them that he knew where two and one-half kilograms of cocaine were stored. He led the police to Allen's apartment in Nashville, where the officers found Todd Hoffman and 2385 grams of cocaine, a .30 caliber pistol and a triple beam scale.

Hoffman's Grand Jury Testimony

Hoffman initially cooperated with the police, and agreed to testify before the grand jury. He testified that Bulger was his cousin, and lived in Detroit, and that Bulger had introduced him to Odom. According to Hoffman, Bulger was contacted by a person identified as "G," who had large quantities of cocaine to distribute. Odom told Bulger that the Tennessee area was wide open for cocaine. Hoffman described the sales hierarchy which evolved, stating that "G" was at the top, followed by Bulger, Warner, Hoffman, and then a number of others who provided protection and transportation.

Hoffman further testified before the grand jury that Bulger arranged Hoffman's acquisition of ten kilograms of cocaine which Hoffman then brought to Nashville from Detroit in June 1990. That cocaine was divided among Odom and two other persons. Hoffman estimated that between June and November 1990 he and his group made six trips to Tennessee, transporting approximately 50 kilograms of cocaine. Bulger and Warner were involved in all of the trips. Hoffman testified Odom had given him the gun that he had in his possession when he was arrested, and that he was guarding the cocaine in Allen's apartment at Warner's request. 1

Indictment

The grand jury returned an indictment charging defendants and Allen, Smith and George Rider (a/k/a "G") with conspiracy to distribute cocaine (count 1, 21 U.S.C. Secs. 841, 846); defendants and Rider, Smith and Allen with the carrying or use of a firearm during and in relation to a drug trafficking offense, based on the gun seized from Allen's apartment (count 2, 18 U.S.C. Sec. 924(c) and 18 U.S.C. Sec. 2); and Leonard Johnson, Smith and Allen with possession of cocaine with intent to distribute, based upon the 2385 grams of cocaine seized from Allen's apartment (count 3, 21 U.S.C. Sec. 841 and 18 U.S.C. Sec. 2).

Hoffman's Recantation

Hoffman was later incarcerated with Bulger and Odom, and during this time signed a statement that his grand jury testimony was false. The statement was typed by Odom's girlfriend and then supplied to Odom. A recantation hearing was held prior to trial, at which Hoffman maintained that his grand jury testimony concerning Odom and Bulger was false, although he adhered to his testimony regarding Warner's involvement. Following the recantation hearing, the court granted the government's motion to dismiss the indictment against Rider without prejudice, and Allen pled guilty to all of the offenses with which he was charged.

Trial

The government's witnesses at trial included the police officers involved in the investigation and alleged co-conspirators Hoffman, Myron Johnson and Christopher Williams. During the government's direct examination of Hoffman, the prosecutor asked Hoffman if he had testified before the grand jury, and Hoffman responded that he had testified falsely. The court ultimately admitted Hoffman's grand jury testimony as substantive evidence.

Christopher Williams testified that he supplied apartments, cars and financial services to Warner and Odom to assist in their cocaine distribution. Williams stated that at Odom's request he rented an apartment for Warner, in which Myron Johnson, Leonard Johnson, Bulger and Smith stayed. Williams testified that he delivered cocaine to Odom, that he obtained cocaine from Bulger, and that he delivered money to Bulger in Detroit. Williams testified further that Leonard Johnson was present in August 1990 when Odom delivered $90,000 to Bulger. In September 1990, Warner stored two to five kilograms of cocaine in a safe in Williams' apartment.

Williams testified that Warner paged him on November 1, 1990, and told him to take triple beam scales to a local motel in Nashville. He did so, and saw Warner break down approximately two and one half kilograms of cocaine. Leonard Johnson, Myron Johnson and Allen were also present. Part of this cocaine went to Odom. Williams testified that Warner told him that Warner had brought five kilograms of cocaine to Nashville from Detroit, although Williams calculated the amount was greater.

Myron Johnson also testified for the government, stating that Warner, Smith, and Leonard Johnson made the November trip from Detroit to Nashville in one car, while he and Hoffman made the trip in another car. Before leaving Nashville for Memphis, the men stopped at Allen's apartment, although only Warner and Myron Johnson went into the apartment, while the others waited in the car. Myron Johnson testified that he saw Hoffman at the apartment, as well as the cocaine and the gun Hoffman had in his possession when he was arrested.

The jury convicted Bulger, Odom, and Johnson of conspiracy to distribute cocaine and of the carrying or use of a firearm during and in relation to a drug trafficking offense, as charged in counts 1 and 2 of the indictment. The jury also convicted Johnson of possession of cocaine with intent to distribute as charged in count 3. The jury acquitted Smith on all counts.

II. Hoffman's Grand Jury Testimony

All three defendants challenge the admission of Hoffman's grand jury testimony. 2 Defendants argue that Hoffman's testimony constituted hearsay, and was admitted in violation of their Fifth and Sixth Amendment rights to due process and to confront the witnesses against them.

Federal Rule of Evidence 801(c) defines hearsay as an out-of-court statement offered to prove the truth of the matter asserted. Rule 801(d) excepts from this general definition certain categories of statements, specifically providing that a statement is not hearsay if the "declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition[.]" Fed.R.Evid. 801(d)(1)(A). In United States v. Distler, 671 F.2d 954, 959 (6th Cir.), cert. denied, 454 U.S. 827, 102 S.Ct. 118, 70 L.Ed.2d 102 (1981), this court stated that the admission, as substantive evidence, of grand jury testimony that meets the requirements of Fed.R.Evid. 801(d)(1)(A) does not run afoul of the Constitution. Thus, if the admission of Hoffman's grand jury testimony met the requirements of Rule 801(d)(1)(A), defendants have no legitimate basis on which to challenge its admission as substantive evidence of their guilt.

There is no question but that Hoffman was present at trial and subject to cross-examination, and that his grand jury testimony was given under oath, subject to the penalty of perjury. Defendants contend that, because the prosecutor did not elicit trial testimony inconsistent with Hoffman's grand jury testimony, the grand jury testimony was inadmissible under Rule 801(d)(1)(A).

During the government's direct examination of Hoffman, the prosecutor asked:

Q. And Mr. Hoffman, did you appear before the grand jury in this matter regarding Terrance Bulger?

A. Yes, I did.

Q. Did you testify before the grand jury?

A. Yes. I falsely testified.

Q. Were you represented by counsel?

A. Yes, I was.

Q. And did you tell the grand jury that Terrance Bulger is the source of cocaine?

A. Yes. I lied to tell the grand jury that.

Q. Did you tell the grand jury that Gary Odom was involved with you in the cocaine business?

A. Yes, sir. Another lie. But I did tell them that.

Q. And did you tell the grand jury that Terrance Bulger became involved in the distribution of cocaine in the summer--

At this point, defense counsel objected on the grounds that the prosecutor was asking Hoffman to repeat "perjured testimony," and because the prosecutor had not laid a...

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