U.S. v. Seale
| Citation | 947 F.2d 946 |
| Decision Date | 31 October 1991 |
| Docket Number | 90-3211,90-3209,90-3008,90-3014,Nos. 89-4098,90-3215 and 90-3216,90-3007,s. 89-4098 |
| Parties | NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.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 of America, Plaintiff-Appellee, v. Earnest SEALE, Jr., aka E.J., et al. (89-4098), William McCrady (90-3007), Lester Ware, aka Larry Lester (90-3008), Crystal Woodard (90-3014), Edward Sylvester Gray (90-3209), William McCrady (90-3211), Michael Jerome Davis (90-3215) and Thomas A. Walker, aka Tony Walker, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Before NATHANIEL R. JONES and SUHRHEINRICH, Circuit Judges, and TODD, District Judge. *
Earnest Seal, Jr., William McCrady, Lester Ware, Crystal Woodard, Edward S. Gray, Michael Davis and Thomas Anthony Walker are defendants-appellants in this consolidated appeal. They appeal their drug-related convictions and sentences. For the following reasons, we affirm the district court's disposition of their cases.
These cases center on a conspiracy to distribute and to possess with intent to distribute cocaine and crack cocaine in the city of Akron, Ohio. The conspiracy involved appellants and about twenty-two other codefendants named in the indictment.
As early as March 1988, and continuing until June 1989, members of the Crips Street Gang, based in Los Angeles, California, arrived in Akron, Ohio, for the purpose of taking over the cocaine and crack cocaine distribution in the city. During the course of their stay in Akron, these gang members developed relationships with Akron residents in furtherance of their cocaine operation. They engaged in a pattern of activity to secure locations from which to sell their cocaine and crack cocaine, and used local residents to obtain housing, utilities, telephones, paging devices, firearms, and vehicles. Each of the appellants was associated with the conspiracy and each other in some way.
Walker and Woodard, both Akron residents, distributed cocaine from Woodard's residence located in an inner-city housing development. Davis, also an Akron resident, used his residence in assisting the gang members to distribute cocaine and to pursue other cocaine-related activity. Other residents were used to sell cocaine by a number of defendants and coconspirators.
Law enforcement surveillance and court-authorized wire interceptions established the extent of the conspiracy, drug distribution locations, and the various connections among the defendants involved. Controlled purchases of cocaine and crack cocaine were made through the use of an informant, Detective Charles Rowland of the Summit County Sheriff's Department, and Agent Larry Fordo of the Bureau of Alcohol, Tobacco and Firearms.
Seal arrived in Akron in the fall of 1988 or in the spring of 1989 and identified himself as a member of the Crips gang. Yolanda Folk and Dawn Brooks, both Akron residents, bought cocaine from Seal on numerous occasions. Folk also sent money transfers to California at Seal's request. Seal sold crack cocaine to a government informant, Sam Chamness, on approximately forty occasions. In addition, at trial a number of other witnesses detailed their purchases of cocaine from Seal. Seal sold cocaine from the residences of Terri Peake and Willie Little.
McCrady arrived in Akron in the fall of 1988. McCrady made public knowledge of the fact that he was a member of the Crips gang. McCrady distributed crack cocaine from a number of locations. Chamness purchased cocaine from McCrady on a number of occasions at two different Akron residences. On April 3, 1989, McCrady sold Terri Peake six pieces of crack cocaine. McCrady carried a firearm when dealing in cocaine.
Ware arrived in Akron in the early part of 1989. Ware associated often with the other appellants and codefendants and identified himself as a member of the gang. Ware was observed selling cocaine from a Fifth Avenue location on five or six occasions. A firearm was observed at this location. Ware was intercepted in telephone conversations in which reference was made to a shipment being on its way. Other taped conversations implicated Ware as well.
Gray arrived in Akron in the summer of 1988. Gray was responsible for the rental of several houses that were used as crack houses by members of the conspiracy. He rented the houses through two local residents, Pamela and Mary Brown. He distributed cocaine from a number of other locations from August 1988 to June 1, 1989. Agent Larry Ford made several undercover purchases from Gray at different locations. At one transaction between Gray and Ford, a revolver was on the coffee table. Dawn Brooks, Collie Brooks, and Sharon Thomas also purchased cocaine from Gray. He was observed by Diane Hardison on more than ten occasions selling crack cocaine from a Coventry Road residence. Beginning in the spring of 1988, Terri Peake was supplied with cocaine by Gray. Gray also supplied Mary Brown. A number of Gray's phone conversations relating to the distribution of cocaine were intercepted.
Davis, an Akron resident, distributed cocaine and crack cocaine from his residence. Davis's operation was connected with other gang cocaine houses. On January 10, 1989, Agent Ford purchased crack cocaine from Davis's home. On many occasions, Davis directed Ford to other locations where he could purchase crack cocaine. Once Davis directed Ford to a house to buy cocaine, and during the purchase, a gun was in plain view. Davis also showed Ford how to convert powdered cocaine into crack cocaine. Sharon Thomas, a coconspirator and Davis's girlfriend, observed cocaine at Davis's residence and purchased it from him and others at his home. In fact, during the winter of 1988, he actually sold cocaine from Thomas's home. She sold cocaine for him on a number of occasions. Davis was intercepted in phone conversations involving the cocaine conspiracy.
On June 28, 1989, a federal grand jury in the Northern District of Ohio returned a fifty-five-count indictment charging appellants Seal, McCrady, Ware, Gray, Davis, Walker, and Woodard with drug-related offenses. A superseding seventy-five-count indictment against the appellants was returned on July 26, 1989. Count one charged each of the appellants with conspiracy to distribute and possess with the intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. 846 (1988). In addition, each of the appellants was charged in other counts with drug-related offenses.
On August 28, 1989, a jury trial of eleven defendants, including the appellants herein, began. Prior to the trial's conclusion, four defendants, Derrick T. Neal, James Chambers, Walker, and Woodard, entered pleas of guilty. Walker and Woodard entered guilty pleas on September 25, 1989.
The trial concluded on September 26, 1989, and two days later, the jury returned verdicts of guilty as follows: each of the appellants was found guilty of the conspiracy charged in count one; Seal was found guilty as charged in count thirty-three of distribution of crack cocaine, in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2; McCrady was found guilty as charged in counts thirty-eight and sixty-three of use of a communication facility to facilitate the commission of a drug trafficking crime, in violation of 21 U.S.C. 843(b); Gray was found guilty as charged in count thirty-five of use of a firearm during the commission of a drug trafficking crime, in violation of 18 U.S.C. 924(c)(1) and 18 U.S.C. 2, in counts thirty-four and fifty-two of use of a communication facility to facilitate the commission of a drug trafficking crime, in violation of 21 U.S.C. 843(b), and in count forty-five for possession of cocaine with intent to distribute, in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2; Davis was found guilty as charged in counts thirty-one and forty-six for use of a communication facility to facilitate the commission of a drug trafficking crime, in violation of 21 U.S.C. 843(b), in count thirty-five for use of a firearm during a drug trafficking crime, in violation of 18 U.S.C. 924(c)(1) and 18 U.S.C. 2, and in count thirty-six for possession of cocaine with intent to distribute, in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2; Walker entered a plea of guilty to count one, and the remaining counts against him were dismissed; Woodard entered pleas of guilty to the conspiracy in count one and also to count seventy-five, possession of a firearm during the commission of a drug trafficking crime, in violation of 18 U.S.C. 924(c)(1), and the remaining counts against her were dismissed. The court found that the United States Sentencing Guidelines ("U.S.S.G.") were applicable to this case and sentenced the appellants accordingly. This appeal followed.
The first issue on appeal is whether the trial court erred in denying Seal's motions for continuance. Seal moved the court for continuances on the ground that additional time was required to prepare for the trial.
"We review issues relating to denials of requests for continuances under an abuse of discretion standard." United States v. Sawyers, 902 F.2d 1217, 1219 (6th Cir.1990), cert. denied, 111 S.Ct. 2895 (1991). Further, the Supreme Court has stated that broad discretion must be granted trial courts on matters of continuances. Morris v. Slappy, 461 U.S. 1, 11 (1983). Denial amounts to a constitutional violation only if there is an unreasoning and arbitrary "insistence upon expeditiousness in the face of a justifiable request for delay." Id. at 11-12. " 'To demonstrate reversible error, the defendant must show that the denial resulted in actual prejudice to his defense.' " United States v. Gallo, 763 F.2d 1504, 1523 (6th Cir.1985), cert. denied sub nom. Graewe v. United States, 474 U.S. 1068 and 474 U.S. 1069 (1986), and...
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