U.S. v. Ricks

• Decision Date: 18 August 1989
• Docket Number: Nos. 87-5096,87-5097 and 87-5098,s. 87-5096
• Citation: 882 F.2d 885
• Parties: 28 Fed. R. Evid. Serv. 763 UNITED STATES of America, Plaintiff-Appellee, v. Thomas Calvin RICKS, a/k/a Joe Dancer, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Marcell MOFFETT, a/k/a Black Barney, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Maurice David KING, a/k/a Peanut, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 885

882 F.2d 885

28 Fed. R. Evid. Serv. 763

UNITED STATES of America, Plaintiff-Appellee, v.Thomas Calvin RICKS, a/k/a Joe Dancer, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v.Marcell MOFFETT, a/k/a Black Barney, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v.Maurice David KING, a/k/a Peanut, Defendant-Appellant.

Nos. 87-5096L, 87-5097 and 87-5098.

United States Court of Appeals Fourth Circuit.

Argued May 11, 1989.

Decided Aug. 18, 1989.

Paul Michael Weiss(Warren Gary Kohlman, Kohlman & Fitch on brief), for defendants-appellants.

Charles Preston Scheeler, Asst. U.S. Atty. (Breckinridge L. Willcox, U.S. Atty. on brief), for plaintiff-appellee.

Before ERVIN, Chief Judge, WINTER and CHAPMAN, Circuit Judges.

HARRISON L. WINTER, Circuit Judge:

DefendantsThomas Calvin"Joe Dancer" Ricks, Marcell "Black Barney" Moffett, and Maurice David"Peanut" King appeal their convictions on various drug-trafficking related charges.Defendants were first convicted of these offenses in 1983, but we ordered a new trial because of prejudicial error with regard to the selection of the jury.SeeUnited States v. Ricks, 776 F.2d 455(4 Cir.1985), 802 F.2d 731(4 Cir.)(in banc), cert. denied, 479 U.S. 1009, 107 S.Ct. 650, 93 L.Ed.2d 705(1986).Following a second trial, defendants were again convicted and again appeal.We affirm.

I.

Ricks and King, along with defendantClarence Meredith, headed a major drug distribution organization operating in Baltimore, Maryland.Moffett was a "lieutenant" overseeing distribution of heroin from one of several street corners controlled by the organization.The defendants were convicted of a variety of substantive narcotics possession and distribution offenses and of engaging in a conspiracy to possess and distribute narcotics in violation of 21 U.S.C. Sec. 846.In addition, Ricks, King, and Meredith were convicted of heading a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848.

The case against defendants was proved largely as a result of assistance from Otis "Mike" Smith and to a lesser extent from Delphine Robinson who were police informers.Evidence was also collected as a result of the undercover efforts of Detective Arlene Jenkins who represented herself on various occasions as a companion of Smith and as a friend of Robinson.The investigation was coordinated by Detective Sergeant Gary Childs of the Baltimore City Police Department.

Smith first assisted Childs in the summer of 1980.After having his parole revoked, Smith re-established contact with Childs in late 1981 and began assisting Childs as an ongoing matter.Smith testified that he had known many of the defendants for years, had purchased heroin from King and Meredith in 1979 and 1980, and knew Ricks to be a partner of King and Meredith.

Smith first approached Ricks about purchasing heroin in late January 1982.Ricks refused, explaining alternatively that he was no longer in the heroin business and that he was being watched too closely by the police.In order to develop his credibility as a drug dealer, Smith began making small purchases of heroin from individuals at the organization's Ellsworth and Bond streets location and represented that he was reselling the heroin "in the county" where he could double his money.Accordingly, Smith was plausibly able to finance ever-larger purchases.

On March 16, 1982, Ricks contacted Smith and indicated that he was ready to deal with Smith directly.Over the course of three transactions that same month, Ricks, assisted by Moffett, sold Smith more than $10,000 worth of heroin.These purchases were made on 50% credit and consequently Smith owed Ricks $3,200 after the third purchase.Ricks was arrested on April 1, 1982 on homicide charges unrelated to the case, and was in custody during the remainder of the government's investigation.Smith subsequently paid this balance to King, and met with King, Meredith, and Moffett to arrange and complete sizable additional purchases.Smith was assured by Moffett that the debt to Ricks had been satisfied because "it was all in the same pot."

Ricks' arrest occurred outside his apartment at 9801 Tailspin Lane.Childs noticed that the arrest had been observed from the apartment window by defendantBeatrice Roberts, Ricks' girlfriend and roommate.He and other officers went to the apartment to announce themselves and explain the arrest.While waiting for Roberts to answer the door, they heard the shower running and toilet flushing.Roberts eventually opened the door explaining that she had been taking a shower: however, the officers observed that she was not wet and her shoes were covered with white powder.

At the time of Ricks' arrest, the officers were awaiting the issuance of a search warrant for the apartment.Afraid that Roberts had been destroying narcotics, Childs entered the apartment and checked the bathroom where he found the sink and shower faucets still running and the room covered with white powder.Childs also checked a nearby closet to see whether anyone else was present, unloaded a revolver he discovered, and then returned to the living room to await issuance of the warrant.When notified that the warrant had been issued, the officers searched the apartment and found mannite (a crystalline substance used to cut heroin), drug paraphernalia, another loaded weapon, and a bulletproof vest.

The affidavit supporting the search warrant for the Tailspin Lane Apartment was based on information given by Alicia Eley, a confidential informant, and on information developed independently during the course of the investigation.Eley's identity was not originally disclosed in the affidavit, but was made known at the insistence of the issuing judge who refused to issue the warrant otherwise.In April 1983, approximately one year after the search, Eley executed an affidavit specifically denying the allegations attributed to her in the search warrant affidavit.

At trial, Ricks asserted an entrapment defense contending that he was overcome by Smith's persistence in seeking to purchase heroin from him, and that he had acted only as a middleman for Smith rather than as an independent distributor.Ricks established that he was incarcerated during the early portion of the investigation, and testified that he supported himself after release from prison in early 1981 through gambling and working in a grocery store.

The government presented substantial evidence that two grocery stores owned by Ricks, Meredith, and King as well as gambling trips to Atlantic City were part of a carefully conceived money laundering scheme.Responding to Ricks' entrapment defense, the government was permitted to present evidence concerning his arrest following the stop of a vehicle carrying Ricks and driven by King in early 1979.One of the arresting officers testified that he observed Ricks throw a brown paper bag containing thirty glassine bags of "brownish white powder"he thought to be heroin from the car.¹

Moffett contended that Smith was lying about Moffett's participation in the one sale of heroin to Smith to which he was directly linked.King's defense was that he made a substantial amount of money gambling throughout the late 1970's and early 1980's, and later invested heavily in the two grocery stores.King also contends that he is the victim of mistaken identity, having been confused for his brother Brian.Based on the alleged inconsistency between Ricks' entrapment defense and their own asserted defenses, King and Moffett moved for severance of the trials.The motions were denied.

II.

On appeal, defendants raise a variety of evidentiary and procedural objections to their convictions.

A.Collateral Estoppel

In an effort to rebut Ricks' claim of entrapment by showing predisposition, the government was permitted to introduce testimony showing that he possessed a significant amount of heroin in February 1979.Ricks argues that the government is collaterally estopped from introducing this evidence because he was acquitted of narcotics charges arising from the incident in a previous state court proceeding.The government contends that the doctrine of collateral estoppel is inapplicable in this case because the prosecutions were pursued by different sovereigns.

In Ashe v. Swenson, 397 U.S. 436, 443-45, 90 S.Ct. 1189, 1194-95, 25 L.Ed.2d 469(1970), the Supreme Court held that the double jeopardy clause embodies principles of collateral estoppel previously recognized as a matter of federal criminal law.The Court described the doctrine as follows:

"Collateral estoppel" is an awkward phrase, but it stands for an extremely important principle in our system of justice.It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.

Id. at 443, 90 S.Ct. at 1194(emphasis added).

Our previous decisions reveal that a prior acquittal may affect a subsequent prosecution in one of two ways.First, as in Ashe, collateral estoppel may bar the subsequent trial entirely if a factual issue previously resolved in defendant's favor is an essential element of the subsequently-prosecuted offense.Second, and more narrowly, collateral estoppel may serve to bar only the introduction of evidence concerning those factual issues previously decided in favor of defendant.SeeUnited States v. Ragins, 840 F.2d 1184, 1193-94(4 Cir.1988).²In both the prosecution-bar and evidence-limiting contexts, the underlying question is whether the issue to be foreclosed from consideration was "necessarily determined" in defendant's favor.Ragins, supra.

However, Ricks' acquittal of narcotics law violations in a prosecution by the State of Maryland does not bar reconsideration of a factual issue presented in that case in a subsequent federal prosecution for different offenses.We conclude, as the...