U.S. v. Payne, s. 90-1262
| Decision Date | 28 June 1991 |
| Docket Number | 90-1283,Nos. 90-1262,90-1298 and 90-1299,90-1282,90-1271,90-1270,s. 90-1262 |
| Citation | 940 F.2d 286 |
| Parties | UNITED STATES of America, Appellee, v. Cedric PAYNE, Appellant. UNITED STATES of America, Appellee, v. Eileen MAIER, Appellant. UNITED STATES of America, Appellee, v. Ray RANSOM, Appellant. UNITED STATES of America, Appellee, v. Anthony ALEXANDER, Appellant. UNITED STATES of America, Appellee, v. Melvin HICKS, Appellant. UNITED STATES of America, Appellee, v. Marvin BOGAN, Appellant. UNITED STATES of America, Appellee, v. Kim CUELLAR, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Jerry L. Soucie, West Chester, Pa., Bernard Glaser, Rick G. Wade, Lincoln, Neb. (Toney Redman, Peter K. Blakslee, Paul M. Conley, Douglas E. DeLair, Lincoln, Neb., on briefs), for appellants.
Bruce W. Gillan, Lincoln, Neb. (Gregory R. Hoffman, on brief), for appellee.
Before WOLLMAN, Circuit Judge, and HEANEY and FRIEDMAN *, Senior Circuit Judges.
Seven defendants appeal their convictions and sentences, the consequences of their involvement in a cocaine distribution conspiracy in Lincoln, Nebraska. We affirm the decision of the district court. 1
Ray Ransom, Anthony Alexander, Melvin Hicks, Marvin Bogan, Kim Cuellar, Eileen Maier, Cedric Payne, and four other defendants were charged in a fifteen-count indictment with conspiracy to distribute cocaine, use of a telephone to facilitate a conspiracy to distribute cocaine, possession with intent to distribute cocaine, and twelve counts of distribution of cocaine, in violation of 21 U.S.C. Secs. 846, 843(b), 844, and 841(a)(1). Each of the defendants was charged with the fourteen substantive offenses pursuant to the holding in Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946).
Beginning in the summer of 1987, Ray Ransom, the apparent ringleader, supplied cocaine to the Lincoln, Nebraska, area by dispatching couriers from Florida. Two couriers, Amos James and Allen Powell, would "body carry" powder cocaine on airline flights to Omaha, where various distributors employed by Ransom would pick up the cocaine for sale in Lincoln. Ransom's first contact in Lincoln was Houston Nalls, whom Ransom had known previously. The conspiracy lasted from approximately June 1987 through December 1988.
Lincoln police got wind of Ransom's drug enterprise in September 1987 when Ransom attempted to send a football filled with 136.1 grams of cocaine to Gavin Gaskins, a cocaine distributor in Lincoln introduced to Ransom by Nalls. Florida police intercepted the football and alerted Lincoln police. Thereafter, Lincoln police conducted undercover operations to ascertain the extent of Ransom's drug enterprise in Lincoln.
During the fall of 1987, Ransom developed a relationship with Bettie Brown, a resident of Lincoln. Ransom persuaded Brown to store cocaine at her house. Brown testified at trial that one of Ransom's distributors would pick up cocaine from James or Powell in Omaha and then deliver it to Brown's for storage. Brown would await instructions from Ransom before distributing eighth-ounce packets to Ransom's network of dealers. According to Brown's testimony, during his visits to Lincoln in 1987 and 1988 Ransom conducted numerous closed door meetings at Brown's residence with his distributors, including Houston Nalls, Gavin Gaskins, Anthony Alexander, Melvin Hicks, Marvin Bogan, and Eric Beckwith.
Anthony Alexander commanded a dominant position in the chain of command. Alexander was often called upon to retrieve cocaine from the couriers who flew into Omaha. He was not trusted, however, to warehouse the cocaine. Alexander brought cocaine from Omaha to Bettie Brown. Ransom then instructed Brown when to distribute cocaine to Alexander, presumably as Alexander paid for the cocaine by wiring money to Florida. Alexander disbursed cocaine to several other dealers, including Melvin Hicks, Marvin Bogan, and Eric Beckwith.
Eric Beckwith cooked the cocaine down to crack--what in the drug trade is called "rocking it up." Beckwith converted cocaine into crack at Eileen Maier's house and Kim Cuellar's house. Some of the cocaine was made into crack to increase the potential profit, rocks of which were sold for $60 to $75 by each member of the conspiracy.
Bettie Brown's cousin, Melvin Hicks, acted as a cocaine distributor in Lincoln. Hicks sold crack to Morrie Jsames, a police informer, twice in December of 1987 at Eileen Maier's home on Mohawk Street in Lincoln. Gavin Gaskins testified that he sold cocaine to Hicks on more than one occasion, and Bettie Brown testified that Hicks was often a participant in the closed door meetings at her house. Hicks was often present when cocaine was purchased from other dealers in the conspiracy.
Marvin Bogan also distributed cocaine in Ransom's network. Officer Cindi Arthur testified that she went to Carolyn Lockett's apartment to arrange a purchase of cocaine in February 1988. Lockett made a call to a pager to arrange the buy. As Lockett and Arthur left the apartment, Marvin Bogan arrived. Lockett spoke with Bogan and told Arthur that Bogan had $75 rocks of crack in the car, but they would have to follow Bogan to Cuellar's home if they wanted $60 rocks of crack. Arthur waited outside while Lockett purchased cocaine at Cuellar's, and observed Bogan get into a car registered to Eileen Maier. Bogan, like Hicks, sold crack to Morrie Jsames and was often present when other dealers sold cocaine to informers.
Kim Cuellar lived with Alexander and distributed cocaine for him when dealers came for their orders. Another girlfriend of Alexander's, Eileen Maier, also distributed cocaine for him and picked up shipments of drugs from Bettie Brown. Brown testified that Maier brought a courier, Alan Powell, from Omaha to Lincoln on one occasion. Much of the drug activity of the conspiracy took place at Cuellar's home on North 22nd Street and Maier's home on Mohawk Street in Lincoln.
Gaskins testified that he sold cocaine to Cedric Payne and that Payne indicated that he had people waiting to buy from him. Payne often smoked crack at Maier's residence with a girlfriend or with Eric Beckwith. Susan Rhodus, an unindicted co-conspirator, testified that Payne bought and sold cocaine and provided her with cocaine on numerous occasions.
Morrie Jsames, a police informer, made numerous controlled buys of cocaine and crack from Hicks, Bogan, Alexander and Cuellar in December 1987 and January 1988. Jsames testified to purchases, listed below, which correspond to counts of the indictment:
Count Date Seller Place
II 12/11/87 Melvin Hicks Maier's, Mohawk Street
III 12/17/87 Melvin Hicks Maier's, Mohawk Street
IV 1/6/88 Marvin Bogan Maier's, Mohawk Street
V 1/13/88 A. Alexander Maier's, Mohawk Street
VII 2/12/88 A. Alexander Maier's, Mohawk Street
XII 3/10/88 Kim Cuellar Cuellar's, North 22nd
XIII 3/10/88 A. Alexander Cuellar's, North 22nd
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Cindi Arthur, an undercover Lincoln police officer, arranged for controlled buys of cocaine and crack by Carolyn Lockett in February and March 1988 which also correspond to the indictment:
Count Date Place
VI 2/11/88 Cuellar's, North 22nd
VIII 2/16/88 Maier's, Mohawk Street
IX 2/20/88 Cuellar's, North 22nd
X 2/24/88 Cuellar's, North 22nd
XIV 3/10/88 Cuellar's, North 22nd
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Gavin Gaskins and Bettie Brown testified that Ransom instructed his co-conspirators to wire money to Florida through Western Union. Lincoln police obtained records from Western Union of wire transfers of large amounts of money from Lincoln to Ransom in Florida. Western Union employees identified Gavin Gaskins, Bettie Brown, Houston Nalls, Kim Cuellar, Anthony Alexander, Eileen Maier, and Ransom himself as customers who used fictitious names to send money to Ransom. Between August 7, 1987, and December 1, 1988, approximately $161,000 was sent under a variety of false names and addresses to several different names in Florida. Western Union records revealed that members of the conspiracy continued to send money to Florida after their arrests on March 11, 1988. Bettie Brown testified that she continued to receive and distribute cocaine until May or June 1988.
Two defendants indicted for involvement in this drug conspiracy remain at large, Amos James and Alan Powell. Bettie Brown and Houston Nalls, indicted with the others, entered into plea agreements with the government. Brown testified at trial. Other co-conspirators cooperated with the government, were not indicted, and testified at trial against the seven defendants who now appeal their convictions and sentences.
Each of the seven defendants argues that various errors were made at trial and in sentencing. We conclude that the trial issues do not require reversal of the district court's decision and that the terms of imprisonment imposed by the district court conform to the requirements of the Sentencing Guidelines.
Each defendant argues that because the testimony of Bettie Brown was tainted by what they characterize as a contingent plea agreement, their rights to due process were violated. Defendants rely on United States v. Waterman, 732 F.2d 1527 (8th Cir.), cert. denied, 471 U.S. 1065, 105 S.Ct. 2138, 85 L.Ed.2d 496 (1985). There, a panel of this court reversed a conviction on the basis of testimony given pursuant to a plea bargain. The full court then vacated the panel decision and affirmed the conviction by an equally divided court, sitting en banc. Waterman thus has no precedential value; moreover, it is distinguishable from this case. See United States v. Fazzino, 765 F.2d 125, 126 (8th Cir.), cert. denied, 474...
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