U.S. v. Paige

• Decision Date: 12 December 2006
• Docket Number: No. 05-5334.,05-5334.
• Citation: 470 F.3d 603
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Oscar PAIGE, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

470 F.3d 603

UNITED STATES of America, Plaintiff-Appellee, v. Oscar PAIGE, Jr., Defendant-Appellant.

No. 05-5334.

United States Court of Appeals, Sixth Circuit.

Argued: November 28, 2006.

Decided and Filed: December 12, 2006.

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ARGUED:

John G. McDougal, McDougal Law Offices, Chattanooga, Tennessee, for Appellant. Christopher D. Poole, Assistant United States Attorney, Chattanooga, Tennessee, for Appellee.

ON BRIEF:

John G. McDougal, McDougal Law Offices, Chattanooga, Tennessee, for Appellant. Christopher D. Poole, Assistant United States Attorney, Chattanooga, Tennessee, for Appellee.

Before: MARTIN and GUY, Circuit Judges; ROSE, District Judge.^*

OPINION

RALPH B. GUY, JR., Circuit Judge.

Defendant Oscar Paige, Jr., was found guilty by a jury of: (1) conspiracy to distribute and possess with intent to distribute more than 50 grams of cocaine base; (2) aiding and abetting possession with intent to distribute more than 50 grams of cocaine base; and (3) possession of a firearm in furtherance of the charged conspiracy. 21 U.S.C. §§ 841(a)(1) and 846; 18 U.S.C. § 924(c). The district court sentenced defendant to a mandatory life term on the drug offenses, and a mandatory consecutive five-year term on the firearm offense. Defendant challenges the sufficiency of the evidence to support each conviction, the jury instructions on possession, and application of the statutory sentencing enhancement that resulted in the mandatory life sentence. After review of the record and the arguments presented on appeal, we affirm.

I.

Defendant Oscar Paige, Jr., was charged in a nine-count indictment along with five codefendants: his son, Oscar Paige III (Oscar); his daughter, Kimberly Paige (Kim); Kim's boyfriend, Labron Dave (Dave); Oscar's girlfriend, Carlene Fearn (Fearn); and Oscar's son, Cornelius Hayes (Hayes). All five codefendants entered guilty pleas and agreed to cooperate with the government. The government filed an information giving notice of its intention to seek sentencing enhancement on the basis of the defendant's prior felony drug convictions. 21 U.S.C. § 851. Defendant pleaded not guilty and went to trial on counts 1, 2, and 3, while counts 5 and 6 were dismissed by the government.

Chattanooga Police Detective Lee Wolff learned from a confidential informant that defendant's son Oscar and his family were selling cocaine base, or "crack," from a duplex on North Orchard Street in Chattanooga. The defendant, age 58, was living with Oscar in the right side of the duplex, while Kim and her boyfriend were living in the left side of the duplex. Wolff conducted an investigation, and the informant made two controlled purchases of crack from the duplex. Wolff obtained a search warrant, which was executed on December 5, 2002.

Officers knocked and announced themselves, then made forced entry into the right side of the duplex. They found the defendant sitting on a couch in the front living-room area, and they found Oscar in the kitchen, Fearn in a closet, Hayes running down a hall, and Felicia Paige in a back room. The officers found baggies containing a total of 17.6 grams of crack cocaine. Also found were digital scales with cocaine residue, "corner baggies" used to package crack, a plate with crack and a razor blade on it, $900 cash, a walkie-talkie, and two loaded firearms. One firearm, a .25 caliber semi-automatic pistol, was found under the cushion where the defendant was sitting. The other, a sawed-off 12-gauge shotgun, was found on the floor near the defendant. The officers forcibly entered the left side of the duplex, where they found Kim Paige and Labron Dave. From the left side of the duplex, officers seized 39.9 grams of crack cocaine, approximately $1,100 in cash, two more guns, razor blades, and a walkie-talkie that matched the one found in the defendant's side of the residence.

Oscar and Kim testified against the defendant at trial. Both acknowledged that they were cooperating with the government in hopes of getting a break at sentencing, but testified that no promises had been made regarding their sentences. Oscar indicated that he was facing a possible life sentence, while Kim conceded that she was facing at least a 15-year sentence. Both understood that they had to testify truthfully to have a chance at a reduced sentence.

According to Oscar, he, his father, his sister, and his sister's boyfriend were selling crack from the duplex 24 hours a day. Oscar and his father smoked crack and sold it to support their habit. Oscar testified that they sold crack from the door during the day, and from the window at night. Kim kept most of the crack and would "front" Oscar and the defendant about $100 worth of crack cocaine at a time. Oscar testified that they earned $20 on every $120 in sales, and would make about $1,000 on a good day.

In addition, Oscar explained that the two firearms found in the right side of the duplex were taken "in pawn" for crack, but that he and his father kept the loaded firearms for protection. Oscar testified that the defendant touched those firearms "plenty of times," and explained that he and his father would grab one of the firearms to hold while selling crack from the window at night. According to Oscar, Dave purchased one of the firearms found on the other side of the duplex for protection after Kim was shot during a break-in by rival drug dealers.

Oscar and Kim testified that the walkie-talkies were used to communicate between the two sides of the duplex. Kim said that it was her idea to get the walkie-talkies, and that she assigned numbers to each person, including the defendant, to be used instead of names. Kim explained that she was the "main person" in the conspiracy, and that her father and the others sold crack for her. Kim hid the larger quantities of crack in several places in the left side of the duplex. In fact, she testified that one ounce of crack was hidden so well that it was not found during the execution of the search warrant. That ounce was sold from the duplex the day after she and Oscar were released on bond.

In all, officers seized a total of 57.5 grams of crack cocaine from the duplex—17.6 grams from the side where defendant and Oscar lived and 39.9 grams from the side where Kim and her boyfriend lived. ATF Agent Cordell Malone testified that more than 50 grams of cocaine was an amount indicative of distribution, as was the presence of the walkie-talkies, scales, firearms, and cash. Defendant presented no evidence at trial. The jury returned verdicts of guilty on all three counts, and made specific findings that the drug offenses involved more than 50 grams of cocaine base.

The government sought an enhanced sentence under 21 U.S.C. § 841(b)(1)(A), which provides that a person convicted of a violation involving 50 grams or more of cocaine "after two or more prior convictions for a felony drug offense have become final, . . . shall be sentenced to a mandatory term of life imprisonment without release[.]"¹ At sentencing, the district court found the defendant had six prior felony drug convictions, only two of which were required to trigger the enhancement, and sentenced defendant to two concurrent life sentences on the drug offenses and a mandatory consecutive five-year term on the firearm offense. This appeal followed.

II.

A. Sufficiency of Evidence

In reviewing the denial of a motion challenging the sufficiency of the evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original). The parties have identified this as the appropriate standard, but have not indicated whether a proper Rule 29 motion for acquittal was made at trial. FED.R.CIV.P. 29. If a proper motion was not made, the issue is waived and our review is "limited to determining whether there was a `manifest miscarriage of justice.'" United States v. Price, 134 F.3d 340, 350 (6th Cir.1998) (citation omitted). A miscarriage of justice exists when the record is "`devoid of evidence pointing to guilt.'" Id. (citation omitted). Because the evidence presented was more than sufficient to support the defendant's convictions, however, we would affirm under either standard.

First, in a general attack on his convictions, defendant argues that the evidence was not sufficient because it rested exclusively on the testimony of the cooperating codefendants who testified in hopes of receiving a reduced sentence. However, "[a]ttacks on witness credibility are simple challenges to the quality of the government's evidence and not the sufficiency of the evidence." United States v. Sanchez, 928 F.2d 1450, 1457 (6th Cir. 1991). In assessing the sufficiency of the evidence, "we do not weigh the evidence, assess the credibility of the witnesses, or substitute our judgment for that of the jury." United States v. Wright, 16 F.3d 1429, 1440 (6th Cir.1994). "[W]e draw all available inferences and resolve all issues of credibility in favor of the jury's verdict." United States v. Salgado, 250 F.3d 438, 446 (6th Cir.2001).

The elements of a drug conspiracy are (1) an agreement by two or more persons to violate the drug laws, (2) knowledge and intent to join in the conspiracy, and (3) participation in the conspiracy. Id.; United States v. Elder, 90 F.3d 1110, 1120 (6th Cir.1996). Defendant argues that there was insufficient evidence of an agreement, and that his involvement represented at most a buyer-seller relationship. It is not necessary that the government prove a formal agreement, and the existence of a conspiracy may be inferred from circumstantial evidence that can reasonably be interpreted as participation in a common plan. United States v. Avery, 128 F.3d 966, 970-71 (6th Cir.1997). A conspirator...