U.S. v. Piner
| Decision Date | 14 September 1993 |
| Docket Number | Nos. 91-2198,92-1377,s. 91-2198 |
| Citation | 7 F.3d 236 |
| Parties | NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. UNITED STATES, Appellee, v. Antoinne PINER and Douglas Anthony Harris, Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before: JONES and BATCHELDER, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.
Antoinne "Pots" Piner and Douglas Anthony Harris were two of nineteen defendants charged with crimes relating to a drug conspiracy operating a chain of crack houses in Flint, Michigan.
Defendant Piner was charged and convicted of five drug crimes (conspiracy to distribute drugs; possession with intent to distribute drugs; use of a firearm in the course of a felony drug offense; employment of a person under the age of 18 to distribute a controlled substance; and distribution of drugs to persons under 21 years of age). Piner, and his brother John, were the principal operators of a cocaine and heroin distribution network in Detroit and Flint, Michigan which included the operation of several drug houses. The brothers staffed the distribution points and provided the drugs for the operation.
Defendant Harris was charged and convicted of one count of conspiracy to distribute drugs. Harris, while on inactive military status, spent approximately a week in Flint with military buddies, visiting the Piner crack houses. While enjoying himself with drugs and women, Harris also apparently assisted the business by acting as a doorman and look-out at one of the Flint crack houses.
Through a series of controlled purchases and executions of search warrants at various crack houses, the Bureau of Alcohol, Tobacco and Firearms and Flint police department ultimately nabbed and prosecuted the nineteen defendants involved in the Piner distribution network. The raids netted large quantities of crack, cash, drug business ledgers, weapons and ammunition, as well as drug paraphernalia such as plastic baggies, a heat sealer, glass pipes and a pager.
Upon his conviction as charged, the court sentenced defendant Piner to concurrent 360 month terms of imprisonment on four counts and a prison term of sixty months consecutive to the others for the offense of distributing drugs to minors. The court, while apologetically acknowledging the harshness of the sentencing guideline range for Harris's conviction, sentenced Harris to a 292 month term of incarceration.
The two defendants now appeal, challenging the district court judgment on evidentiary, procedural and sentencing issues.
Defendant Piner charges that his mere association with members of a criminal drug conspiracy is insufficient proof that he is a conspirator without evidence that he had an agreement to conspire with his associates. The government argues that defendant failed to properly preserve this issue for appeal and, in any case, the evidence is more than sufficient to demonstrate the defendant conspired to distribute drugs.
Though defendant did not take issue with the sufficiency of this evidence via a FED.R.CRIM.P. 29 motion at trial, constitutional due process ensures that a defendant cannot be convicted except by proof beyond a reasonable doubt of each element of the crime charged. In re Winship, 397 U.S. 358, 361-362 (1970). In determining the sufficiency of the evidence, the court must not weigh the evidence, consider the credibility of witnesses, nor substitute its judgment for that of the jury. Morelock v. NCR Corp., 586 F.2d 1096, 1104-1105 (6th Cir.1978), cert denied, 441 U.S. 906 (1979). The court must view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979), reh'g denied, 444 U.S. 890 (1979); United States v. White, 932 F.2d 588, 589 (6th Cir.1991). The appellate court must review the evidence, even if exclusively circumstantial, and its inferences in favor of the government. United States v. Connery, 867 F.2d 929, 930 (6th Cir.1989); United States v. Adamo, 742 F.2d 927, 932 (6th Cir.1984), cert. denied, 469 U.S. 1193 (1984).
21 U.S.C. § 841(a)(1) sets forth in relevant part:
(a) ... it shall be unlawful for any person knowingly or intentionally--
(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance;
21 U.S.C. § 846 states:
Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.
The evidence adduced at trial revealed that defendant Piner supplied large quantities of crack cocaine to participant drug houses and drug dealers in a large cocaine operation in Flint, Michigan. Piner hired personnel to operate crack houses and supplied the drugs in partnership with his brother John. Several witnesses identified Piner as a prolific drug dealer in Flint. The evidence further delineated the people who worked in Piner's operation and their duties. Physical evidence seized from the various drug house sites included large sums of cash, drugs and paraphernalia, a ledger of drug distribution/sales bearing Piner's fingerprint, and phone records establishing Piner's ongoing communications with drug houses. Piner's physical proximity in a crack house at the time of his arrest and witness testimony illustrating his drug distribution activities, coupled with his possession of firearms for protection and his statement to police conceding many of these points, further illustrate defendant's participation in a conspiracy to distribute illegal drugs. Defendant correctly proposes that mere proximity to drugs is insufficient evidence of guilt. United States v. White, 932 F.2d 588, 589 (6th Cir.1991); United States v. Woods, 544 F.2d 242, 260 (6th Cir.1976), cert. denied, 429 U.S. 969 (1976), 430 U.S. 954 (1976), 431 U.S. 954 (1976), and reh'g denied, 431 U.S. 960 (1976); 435 U.S. 488 (1977). In the case at bar, however, the evidence demonstrates far more than defendant's mere proximity to drugs. This court finds the evidence more than sufficient to sustain defendant's conviction of conspiracy to distribute drugs.
This assignment of error fails.
Defendant Piner charges that the government failed to prove he sold drugs and failed to substantiate, with additional evidence, its witness testimony that drug purchaser Edgar Pace was a seventeen year old minor. The government charges that defendant did not properly preserve this issue for appeal and, in any case, the court certified documentary evidence and testimonial evidence was sufficient to support defendant's conviction of distributing cocaine to a person under the age of twenty one.
As previously discussed, though defendant did not take issue with the sufficiency of this evidence via a FED.R.CRIM.P. 29 motion at trial, constitutional due process ensures that a defendant cannot be convicted except by proof beyond a reasonable doubt of each element of the crime charged. In re Winship, 397 U.S. at 361-362. As was previously noted, in determining the sufficiency of the evidence, this court must not weigh the evidence, consider the credibility of witnesses, nor substitute its judgment for that of the jury. Morelock v. NCR Corp., 586 F.2d at 1104-1105. We must view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. at 319; United States v. White, 932 F.2d at 589.
21 U.S.C. § 859(a), [the former 21 U.S.C. § 845], provides:
Except as provided in section 860 of this title, any person at least eighteen years of age who violates section 841(a)(1) of this title by distributing a controlled substance to a person under twenty-one years of age is (except as provided in subsection (b) of this section) subject to (1) twice the maximum punishment authorized by section 841(b) of this title, and (2) at least twice any term of supervised release authorized by section 841(b) of this title, for a first offense involving the same controlled substance and schedule.
The uncontroverted court certified documentary evidence presented at trial indicated that defendant was born in April, 1965 (making him 28 years old in 1988 and 29 years old in 1989). The testamentary evidence showed that through his drug network, the defendant distributed cocaine to at least one minor under the age of eighteen, Edgar Pace. Court certified driving records and witness testimony established that Pace was born February 22, 1972, making him sixteen years old in 1988 and seventeen years old in 1989. Thus, the evidence is sufficient to support defendant's 21 U.S.C. § 859 conviction.
This assigned error fails.
Defendant Piner charges that the district court gave the jury an erroneous instruction on the word "employ" as used in the 21 U.S.C. § 861(a)(1) prohibition against employing a person under the age of 18 to distribute a controlled substance. Defendant complains that the court's jury instruction defining the word "employ" was overbroad and erroneous because it failed to include the element of "hire." The defendant also challenges the sufficiency of the evidence that he employed a minor under the age of eighteen, arguing that the government's testimonial evidence was unreliable and unfounded. The government charges that the district court gave a clear and proper instruction to the jury and, in any event, notes that defendant cites no authority for his position.
21 U.S.C. § 861(a) makes it unlawful...
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