U.S. v. Payne

• Citation: 591 F.3d 46
• Decision Date: 05 January 2010
• Docket Number: Docket No. 08-0837-cr.
• Parties: UNITED STATES of America, Appellee, v. Adrian PAYNE, also known as "A," Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

591 F.3d 46

UNITED STATES of America, Appellee, v. Adrian PAYNE, also known as "A," Defendant-Appellant.

Docket No. 08-0837-cr.

United States Court of Appeals, Second Circuit.

Argued: April 22, 2009.

Decided: January 5, 2010.

Ali Kazemi, Assistant United States Attorney, Brooklyn, N.Y. (Benton J. Campbell, United States Attorney for the Eastern District of New York, David C. James, Assistant United States Attorney, Brooklyn, NY, on the brief), for Appellee.

Donna R. Newman, New York, N.Y. (Buttermore Newman Delanney & Foltz, New York, NY, on the brief), for Defendant-Appellant.

Before: KEARSE, SACK, and HALL, Circuit Judges.

KEARSE, Circuit Judge:

Defendant Adrian Payne appeals from a judgment entered in the United States District Court for the Eastern District of New York following a jury trial before John Gleeson, Judge, convicting him of violating substantive and conspiracy provisions of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1962(c) and (d); two counts of murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1); conspiracy to distribute and possess with intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(ii)(II); distributing and possessing with intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(ii)(II); and use of a firearm during and in relation to the commission of a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A). Payne was sentenced principally to six terms of life imprisonment on the racketeering, murder, and narcotics counts, to be followed by a 10-year term of imprisonment on the firearms count. On appeal, he contends principally (1) that the murder-in-aid-of-racketeering counts were barred by the statute of limitations, (2) that there was insufficient evidence to support his convictions, and (3) that the court erred in sentencing him to a 10-year consecutive term of imprisonment on the firearms count and made other sentencing errors affecting all counts. Finding no merit in Payne's contentions, we affirm.

I. BACKGROUND

The present prosecution focused on narcotics distribution and various acts of violence in the East New York section of Brooklyn from 1985 through January 2003. The superseding indictment ("indictment") on which Payne and his codefendant Tyrone ("T-Black" or "Black") Hunter were tried alleged that during that period a number of associated individuals participated in and conducted the affairs of a RICO enterprise by, inter alia, distributing, and conspiring to distribute, cocaine and cocaine base ("crack"), and committing robberies and murders in furtherance of their drug distribution operations. The government's evidence at trial consisted principally of testimony from law enforcement officers and cooperating witnesses, including former enterprise leaders John "Hatchet" Hatcher and Charles "Boo" Thomas. The evidence, viewed in the light most favorable to the government, revealed the following.

A. The Hatcher-Thomas-Hunter "Family" Enterprise

Hatcher and Thomas, along with others to whom they referred as "family" or "street family" (see, e.g., Trial Transcript ("Tr.") 548, 1172), began selling cocaine in East New York in the mid-1980s, initially selling powder cocaine and then switching to crack cocaine in 1987 because it was more profitable. In 1985, Thomas, then 15 years of age, introduced Hunter to Hatcher, whom Thomas "always . . . considered a boss" (Tr. 1499). Hatcher invited Hunter to "join my family," which meant "[s]hoot, sell drugs, whatever's necessary." (Id. at 556.) Hunter at first worked for Hatcher as a lookout, protecting the workers who were selling drugs; he was soon made manager of drug-selling spots. The income from crack sales at one of those spots totaled as much as $20,000 to $25,000 a day; for managing that spot, Hatcher paid Hunter $3,000 to $8,000 a week.

Payne, often referred to by the cooperating witnesses as "A," joined the family as Thomas's lieutenant in about 1995. (See id. at 1175, 1612.) His responsibilities included putting the cocaine provided by Thomas into retail sale packages, getting the cocaine to the workers and keeping them supplied, and collecting the proceeds of the sales. (See id. at 1318-20.) On occasion, when Thomas had not bought the necessary cocaine, he would have Payne purchase it. (See id. at 1319.) As weekly compensation for his work as lieutenant, Thomas allowed Payne to keep the profits from one day's drug sales, usually about $1,200. (See id. at 1320-21.)

Thomas fired Payne as lieutenant after about a year, but Payne remained a member of the family and became, inter alia, an enforcer. For example, as described in Part I.A.1, below, in 1997, complying with an "order" from Thomas (Tr. 704), Payne shot and killed a worker who had been stealing from Thomas and sleeping with Thomas's girlfriend. In 1998, Hunter introduced Payne to Hatcher (who had been in prison since 1991) as "my man," "a shooter" (id. at 703), a "[n]ew shooter in the family" (id. at 704).

Beginning in 2000, Payne also operated as a crack cocaine dealer, selling his own supplies, at a family spot. (See id. at 740-43.) In addition, about once a month from late 2000 until May 2002, Payne sold bulk quantities—approximately 125 grams—of crack to Hatcher. (See id. at 748, 752-53.)

Thomas testified that family members "made money together" and "hustled together," meaning that they would "[s]ell drugs together" (Tr. 1172), although the family structure was not particularly hierarchical. Thomas identified more than a dozen family members (see id. at 1175-76) —all of whom were allowed to operate in family spots (see, e.g., id. at 1177)—and as a general matter, each member who sold drugs retained the profits from his own sales. Describing this as "eat[ing] what you kill" (id. at 1180), Thomas testified that the family operated in this manner for ease of administration:

There's too many of us to all try to put all the money in one pot.

Q. Were you still a family at that point, even though you were eating what you were killing?

A. Yes.

(Id. at 1641-42.) Although they did not pool their profits, members of the family "looked out for each other," meaning that "if one of us was broke, another one would give out some money" (id. at 1172).

In addition, the family supported its members who were arrested or in prison. Hunter and Hatcher, who spent various parts of the 1985-2003 period in prison, were prime examples. When Hunter was arrested in 1989, Thomas raised "money to bail him out" because "that's what we do for each other." (Tr. 1263.) While Hunter was thereafter imprisoned, Hatcher continued to provide him with proceeds from drug sales because Hunter "was part of my family, so he's gonna get money regardless, whether he was in jail or out of jail." (Id. at 630-31.) When Hatcher himself went to prison in 1991, Hunter bought his drug spots for $70,000 and made additional payments totaling approximately $200,000 to Hatcher's wife and father while Hatcher was serving his sentence. (See id. at 682.) When Hunter was imprisoned again in 1994-1996, Thomas provided Hunter's wife and brother with money for Hunter because family "take[s] care of each other" (id. at 1312-13). When Hunter was released from prison in 1996, Thomas and Payne took him shopping and bought him a motorcycle (see id. at 1326); and some two months later, Thomas made Hunter a partner in his drug operation because Hunter was "part of the family and we always said [if] you don't have money, come back to the block" (id. at 1327).

When Thomas and Hunter operated as partners, the center of their operations was the corner of Georgia and Hegeman Avenues and an adjacent block along Hegeman ("Georgia/Hegeman"). Pooling their money for bulk purchasing of crack cocaine, one or the other would make a purchase from a supplier, and each would divide half of the amount purchased into salable packages. Thomas and Hunter then alternated sale days, each selling his half of the crack (through the workers they shared), and retaining the proceeds of the sales made on his own day. (See, e.g., id. at 1327, 1388.)

In 1999, Thomas and Hunter had a falling out, and their partnership ended. Hatcher became Thomas's new partner, and as partners they operated in the same way that Thomas and Hunter had. Thomas and Hatcher alternated days selling crack at Georgia/Hegeman, sharing the workers who did the actual selling, and using some of the same locations to stash their narcotics supplies and their guns. (See Tr. 740-41, 1417-24.) Thomas testified that he and Hatcher did not always operate as partners, but they were always part of the family. (See id. at 1588.)

The hours during which Thomas and Hatcher sold crack at Georgia/Hegeman were approximately 9 a.m. to 10 p.m. Beginning in 2000, Thomas, Hatcher, and Payne agreed that Payne and workers he hired would sell at that spot at night after 10 p.m., and that Payne would retain the proceeds of his sales. (See id. at 740, 743, 748, 1427-28, 1436.) Payne discussed his operations with Thomas, telling Thomas that he kept his drug supplies and guns at the homes of his girlfriends and some of his sellers (see id. at 1426-27), and that he obtained some of his supplies by robbing other drug dealers of drugs and money (see id. at 1376, 1423). When Payne stole drugs, he sold half and gave the other half to Hatcher. (See id. at 1423.)

1. The Murder of Eric Clemons

Payne's position as Thomas's lieutenant had lasted until sometime in 1996 (see Tr. 1322), when Thomas's friend Eric "Sui" Clemons returned from prison and sought to join the drug distribution operation (see id. at 1324). Thomas was dissatisfied with Payne's work as a lieutenant because the sellers would run out of drugs to sell and Payne was lax about replenishing their supplies. Accordingly, in 1996, Thomas replaced Payne in that position with Clemons. (See ...