U.S. v. Phibbs
| Decision Date | 05 August 1993 |
| Docket Number | 92-5512,Nos. 92-5509,92-5521,s. 92-5509 |
| Citation | 999 F.2d 1053 |
| Parties | 38 Fed. R. Evid. Serv. 881 UNITED STATES of America, Plaintiff-Appellee, v. Robert PHIBBS (92-5509); Victor Rojas (92-5512/92-5523); Diane Whited (92-5521); Robert Dale Murr (92-5522/92-5730); Raymond Huckelby (92-5529), Defendants-Appellants. to 92-5523, 92-5529 and 92-5730. |
| Court | U.S. Court of Appeals — Sixth Circuit |
James E. Arehart, Asst. U.S. Atty., Karen K. Caldwell, U.S. Atty., Frances E. Catron, Asst. U.S. Atty. (argued and briefed), Office of U.S. Atty., Lexington, KY, Jacquelyn A. Jess, Asst. U.S. Atty., Office of U.S. Atty., Covington, KY, for plaintiff-appellee U.S.
Andrew M. Stephens (argued and briefed), Lexington, KY, for defendant-appellant Robert William Phibbs.
Fred E. Peters (argued and briefed), Lexington, KY, for defendant-appellant Victor Manuel Rojas.
David R. Marshall (argued and briefed), Lexington, KY, for defendant-appellant Diane Whited.
Ann C. Short (argued), Herbert S. Moncier (briefed), Knoxville, TN, for defendant-appellant Robert Dale Murr.
Derek G. Gordon (argued and briefed), Anggelis, Philpot, Gordon, & Simpson, Lexington, KY, for defendant-appellant Raymond Eugene Huckelby.
Before: GUY and SUHRHEINRICH, Circuit Judges, and DOWD, District Judge. *
Defendants, Raymond Huckelby, Diane Whited, Robert Phibbs, Victor Rojas, and Robert Murr appeal their convictions arising from their participation in a cocaine distribution ring operating in Tennessee and Kentucky. In addition, Phibbs and Rojas challenge the appropriateness of their sentences.
Huckelby takes issue with the sufficiency of the evidence supporting his convictions. Along with the other defendants, he also expressly adopts and incorporates by reference all common issues raised by his co-defendants.
Whited raises the following allegations of error: (1) her convictions were not based upon sufficient evidence; (2) the district court should have granted a mistrial as a result of prejudicial statements made by a government witness; (3) the court should have severed a co-defendant who was tried in absentia; (4) the government was improperly permitted to elicit certain evidence that was prejudicial to the defense; (5) two key government witnesses should have been declared incompetent to testify; and (6) the court unduly restricted her ability to cross-examine a government agent.
Phibbs alleges that: (1) the district court's approach to the voir dire of the jury venire was in error; (2) two government agents were improperly allowed to remain in the courtroom throughout the proceedings, despite the fact that they served as witnesses; (3) the evidence underlying his convictions was insufficient; and (4) he should have been afforded a reduction in sentence due to his acceptance of responsibility for his offenses, as well as for his "minimal" role in the drug distribution ring.
Rojas argues the following points: (1) the government misused both its grand jury and its administrative subpoena powers; (2) the district court erroneously denied both his motion in limine to suppress evidence of his Colombian origins, as well as his mistrial motion predicated upon prejudicial references to his Colombian ties; (3) he was not provided with a "photospread" used by a government witness in her pre-trial identification of him; (4) he was improperly deprived of confidential presentence information; and (5) the district court should have given him a reduction in sentence due to his acceptance of responsibility for his offenses.
Murr contends that: (1) the government breached the terms of a pre-existing plea agreement with him, leading to his prosecution in the instant case; (2) the evidence presented at trial was insufficient to sustain his convictions; (3) the district court erred in denying him a bill of particulars in relation to his continuing criminal enterprise charge, as well as in refusing to give the jury special instructions requested by him; and (4) the government failed to turn over vital Brady and Jencks Act evidence to the defense.
We affirm the convictions and the sentences of all five defendants.
On February 23, 1990, Jerry Parks was detained by agents of the FBI in Nashville, Tennessee, in connection with an ongoing drug investigation. After discussions with the government, he agreed to cooperate in the probe.
Parks revealed that his friend, Robert Murr, had visited him a number of times during the summer of 1988 when Parks was residing in a federal "halfway house" in Bowling Green, Kentucky. On some of those occasions, Murr would deliver cocaine to him to sell. Murr wanted Parks to come to Knoxville, Tennessee, to work for him in his drug distribution venture. He directed Robert Phibbs, who was on the payroll of one of Murr's legitimate businesses, Automotive Enterprises, to write a letter to Parks' federal probation officer requesting that he be allowed to transfer to the Knoxville area. Murr told Phibbs to promise the probation authorities that Parks would be provided with a job at Automotive Enterprises. His efforts were rewarded, and Parks was permitted to move to Knoxville.
Parks' position at Automotive Enterprises was a subterfuge; he actually spent his time helping Murr distribute cocaine. In August of 1988, Murr arranged to sell four kilograms of cocaine to Billie Dye and David Hurt. Parks and Dye gathered approximately $100,000 in cash and, pursuant to Murr's instructions, started out for Lexington, Kentucky, where they were to meet with Murr. The pair had car trouble, however, and arrived in Lexington several hours late. After checking into a hotel, Parks called Murr's ex-wife, Judy, the following morning for guidance as to what to do next. Based on his conversation with her, he and Dye returned to Knoxville, where the transaction was consummated the next day.
Beginning in September of 1988, Parks travelled with Murr and another drug dealer named Tommy McKeehan to the Lexington area every few weeks to obtain multi-kilogram quantities of cocaine. During the first such trip, Parks became acquainted with Murr's drug source, Kenneth Lawson. Whenever Murr needed cocaine, he went with McKeehan to a pay telephone and called Lawson. After a deal had been struck, Murr, Parks, and McKeehan would meet at Judy Murr's residence early in the morning before leaving for Kentucky. Murr and McKeehan would then organize the money to be used in the sale into $1,000 bundles, putting these stacks in brown paper bags.
Aside from taking part in these trips, Parks served as the "front man" for the drug distribution ring. Murr introduced Parks to his regular cocaine customers, including Raymond Huckelby and Edward Rogers. At such meetings, Murr would instruct Parks with regard to the amount of cocaine to be supplied, the price of the drug, and how often it was to be furnished. He would then tell Parks and the purchaser to exchange telephone numbers, beeper numbers, and beeper codes in order to stay in contact. For several months, Parks delivered drugs to Murr's customers in this fashion. When Murr was unavailable, Parks would turn over the money he received in return to either Phibbs or to Judy Murr.
In October of 1988, Parks first encountered Victor Rojas while on one of the excursions to Kentucky he made with Murr and McKeehan to buy cocaine. Rojas, who was Lawson's supplier, brought the drugs to the location where the sale would take place. He usually drove a red Jeep, hiding the drugs in the back inside one or more shopping bags, and wrapped in separate kilogram packages. The bags were covered in coffee grounds to mask the odor of the cocaine.
Parks, Murr, and McKeehan would either give their money to Lawson or would leave it in Rojas' vehicle, taking the cocaine for which they had paid. McKeehan would then be given his share. After the drugs were driven back to Knoxville, Parks and Murr stashed them at the house Murr rented for his girlfriend, Diane Whited. She stored the cocaine in the attic in a green duffel bag with a padlock on it. In order for Parks to get the cocaine from Whited's house to distribute, he would have to contact Murr who, in turn, would call Whited to set up a time for the two of them to come over. Parks went to Whited's residence 15 to 20 times in the fall of 1988 to pick up drugs. On at least one occasion, Whited assisted Murr and Parks in breaking down the cocaine into salable quantities.
Keeping the cocaine at Whited's house proved to be unworkable because Parks needed ready access to the stash, and Murr would not let Parks enter the house without him. At the end of November of 1988, Murr told Parks to bury the cocaine in a pipe on the side of a hill behind Automotive Enterprises. The only person besides Parks who knew exactly where the drugs were hidden was Phibbs.
The drug distribution ring was so successful that Murr and Lawson talked about what should be done with the rather substantial profits. Murr recognized that he could "launder" some of the funds through his business partner, Ernie Nicely. The companies that he had established with Nicely were not doing well, so Murr began to funnel money to him to keep them afloat. Nicely understood that the bulk of this money was derived from drug sales.
After November of 1988, Murr no longer wanted to accompany Parks and McKeehan to Kentucky to obtain cocaine. Consequently, he sent the two of them alone to complete deals in February, March, April, and May of 1989. Around the time of the May transaction, Rojas began to get nervous about the way in which the meetings were scheduled. He approached McKeehan and gave him a slip of paper with a telephone number on it, imploring him and Parks to contact him directly in the future. When they returned to Knoxville, McKeehan asked Murr whether it would be...
To continue reading
Request your trial
-
Byrd v. Collins, PETITIONER-APPELLAN
... ... He contends that the state courts denied him discovery and an evidentiary hearing on these claims. Therefore, Petitioner asks us, at a minimum, to vacate the district court's judgment and remand Petitioner's case with instructions that Petitioner be allowed to conduct discovery ... Phibbs, 999 F.2d 1053, 1071 (6th Cir. 1993) (quoting Irvin v. Dowd, 366 U.S. 717, 722 (1961)) ... Petitioner cites the following question ... ...
-
U.S. v. Branham
... ... Review of the record before us indicates that Allen failed to raise the jeopardy issue at any time prior to or during his criminal prosecution. "As a general rule, we will not ... Phibbs, 999 F.2d 1053, 1064 (6th Cir.1993)). In addition, once the government establishes a conspiracy, "only slight evidence is necessary to implicate a ... ...
-
U. S. v. Farrow
... ... Page 186 ... this base offense level: (1) a four-level enhancement under U.S.S.G. § 2A2.2(b)(2)(B) for "otherwise us[ing]" a dangerous weapon; (2) a two-level enhancement under U.S.S.G. § 2A2.2(b)(3)(A) for bodily injury to the victim; and (3) a three-level ... Koeberlein, 161 F.3d 946, 949 (6th Cir. 1998); see also United States v. Phibbs, 999 F.2d 1053, 1080 n.12 (6th Cir. 1993) (noting that "it is not our function to craft an appellant's arguments") ... In any event, were we to ... ...
-
State v. Clark
... ... It is an administrative subpoena and all we had to have for us is a drug nexus.” Agent Bevins testified that under federal law, the test for issuing such subpoena duces tecum is only that the records be ... This principle extends to third parties—that is entities other than the subject of the investigation. See United States v. Phibbs, 999 F.2d 1053, 1077 (6th Cir.1993). When DEA administrative subpoenas are issued to third parties pursuant to 21 U.S.C. § 876(a), ... ...
-
Sentencing
...violation for nondisclosure of confidential source if court gives summary of information relied upon from that source); U.S. v. Phibbs, 999 F.2d 1053, 1079 (6th Cir. 1993) (no Rule 32 violation for nondisclosure of probation officer’s confidential sentencing recommendation as allowed by ......
-
"THE" RULE: MODERNIZING THE POTENT, BUT OVERLOOKED, RULE OF WITNESS SEQUESTRATION.
...(283.) Id. at 1284. (284.) Id. at 1286 (citations omitted). (285.) Id. The Sixth Circuit reaffirmed this view in United States v. Phibbs. 999 F.2d 1053, 1073 n.4 (6th Cir. 1993) ("Unlike Fed. R. Evid. 615(2) [restyled as 615(b)], Rule 615(3) [restyled as 615(c)] does not restrict the number......
-
Fighting the battle against health care fraud: federal enforcement actions.
...strategy of using IG process so that fruits could be used for both civil and criminal process. [16] Cf. United States v. Phibbs, 999 F. 2d 1053, 1077 (6th Cir. 1993), cert. denied, 510 U.S. 119 (1994); United States v. Harrington, 761 F.2d 1482, 1485 (11th Cir. 1985) (administrative subpoen......
-
§ 18.01 INTRODUCTION: FRE 601
...where the truth lies." Id. at 19.[6] United States v. Lightly, 677 F.2d 1027, 1028 (4th Cir. 1982). See also United States v. Phibbs, 999 F.2d 1053, 1069-70 (6th Cir. 1993) ("[T]he court had the additional authority, pursuant to Rule 403, to exclude their testimony in light of their past or......