U.S. v. Sims

• Decision Date: 12 November 1992
• Docket Number: Nos. 91-1363,s. 91-1363
• Citation: 975 F.2d 1225
• Parties: UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant (91-1476/1478/1479/1488), v. Patrick SIMS (91-1363/1476); Duane Felder (91-1364/1478); Jacques Gardner (91-1365/1488); Christopher Russell (91-1366/1479), Defendants-Appellants, Cross-Appellees, Quintin Burt (91-1384), Defendant-Appellant. to 91-1366, 91-1384, 91-1476, 91-1478, 91-1479 and 91-1488.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1225

975 F.2d 1225

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant (91-1476/1478/1479/1488), v. Patrick SIMS (91-1363/1476); Duane Felder (91-1364/1478);

Jacques Gardner (91-1365/1488); Christopher

Russell (91-1366/1479),

Defendants-Appellants, Cross-Appellees,

Quintin Burt (91-1384), Defendant-Appellant.

Nos. 91-1363 to 91-1366, 91-1384, 91-1476, 91-1478, 91-1479

and 91-1488.

United States Court of Appeals, Sixth Circuit.

Argued May 12, 1992.

Decided Sept. 25, 1992.

Rehearing and Rehearing En Banc

Denied Nov. 12, 1992.

Kathleen Moro Nesi, Asst. U.S. Atty. (argued and briefed), Amy B. Hartmann, Office of the U.S. Atty., Detroit, Mich., for U.S.

Timothy P. Murphy (briefed), Detroit, Mich., for Patrick Sims.

Ted C. Farmer (briefed), Detroit, Mich., for Duane Felder.

Joan E. Morgan (argued and briefed), Detroit, Mich., for Jacques Gardner.

Arthur Jay Weiss (argued and briefed), Law Offices of Arthur Jay Weiss & Associates, Farmington Hills, Mich., for Christopher Russell.

Ronald McDuffie (argued and briefed), Hatchett, Dewalt, Hatchett & Hall, Pontiac, Mich., for Quintin Burt.

Before RYAN, BOGGS, and BATCHELDER, Circuit Judges.

BATCHELDER, Circuit Judge.

This case involves cross-appeals of the government and five defendants. In the district court, all five defendants were convicted of conspiracy to possess cocaine with the intent to distribute and of various firearms violations, including separate violations of 18 U.S.C. § 924(c) for use of machine guns and use of non-machine guns. After the trial, the district court vacated the section 924(c) machine gun convictions of all defendants except Quintin Burt. After sentencing, each defendant appealed, and the government appealed as to all defendants but Burt.

I. Factual Background

On May 31, 1990, at approximately 2:00 p.m., Derrick Brown, an undercover narcotics officer with the Wayne County Sheriff's Office, received a page on his portable pager. Brown responded by phoning the number that appeared on the pager. The person answering the telephone said his name was "Goodie" and that he was interested in purchasing 15 kilograms of cocaine. ¹ Brown testified that Goodie had received the pager number from a confidential informant to whom Brown had given the number. Brown told Goodie that the price was to be $22,500 per kilogram, and that the total price would be $337,500. Goodie responded that this was no problem, that he had the money.

Goodie requested that the transaction occur at his residence, 3925 Fenkell Street, but Officer Brown would not agree to that location and suggested that Goodie call him back in a couple of hours. At about 3:45 p.m., Brown received another page to the same phone number as the earlier one. When Brown called the number, the person answering it identified himself as Goodie. As the two were discussing the amount of money involved, another man, identified as Goodie's brother, reiterated that they had the $337,500 to do the deal. Brown informed Goodie that he did not know him and therefore wanted the deal to occur in a public place. The man identified as Goodie's brother told Brown that he was hesitant to do it in a public place. Brown told him to talk it over with his "brother" and page him later if they were still interested.

At about 5:00 p.m. Brown received a page, phoned the number, and spoke to Goodie. The men agreed that the deal would take place at about 6:15 p.m. that day at the Burger King on Grand River and Livernois in Detroit. Brown said that he would be there in a black Chevy Blazer, and Goodie said that he and his partners would be in a black Pontiac 6000. At the end of the conversation, Brown asked Goodie if there were some way he could get in touch with him if he needed to. Brown then heard Goodie say, "Hey, Pat, what's your pager number?" after which Goodie recited the pager number. At about 6:20 p.m., Brown received a final page from Goodie, who said that he and his brother were going to be a little late.

During the late afternoon of the same day, officers of the Sheriff's Department were conducting surveillance in the area around 3925 Fenkell Street. Investigator George Brown was conducting "primary surveillance," and he began his observations at 3925 Fenkell at about 5:20 p.m. At that time, only a black Pontiac 6000 was parked outside. About 20 minutes later, a blue Merkur pulled behind the Pontiac, and a black male, later identified as Christopher Russell, got out of the car and entered 3925 Fenkell. At around 6:20, Investigator Brown observed four individuals leave the Fenkell Street residence. Russell and one other black male entered the Merkur, and two other individuals entered the Pontiac. Both cars proceeded to 2703 Clements Street, and all four men entered that residence. Brown noted the presence of a blue Oldsmobile Toronado backed into the driveway of 2703 Clements. Soon thereafter, Brown saw a black male, later identified as Jacques Gardner, leave the residence, open the trunk of the Toronado, remove a black bag that appeared to be heavy, and carry it into the residence. Gardner came out onto the upper porch of the residence a few moments later and looked both up and down Clements. Very soon thereafter, six black males left that location. One, later identified as Quintin Burt, carried two gun bags with him into the Toronado. A second individual, later identified as Antoine Burt, was also observed entering the Toronado. ² Gardner carried the black bag and placed it into the back seat of the Pontiac, whereupon both he and Russell entered that vehicle. Two persons entered the Merkur; one, later identified as Patrick Sims, was carrying a large, pink plastic-type bag and entered the front passenger seat; the other, later identified as Duane Felder, entered the driver's side. Investigator Brown then followed the three cars as they proceeded to the area of the Burger King restaurant.

Officer Alexander Traczuk, along with Officer Robert Wood, who were conducting secondary surveillance, observed three cars in the vicinity of 3925 Fenkell, a black Pontiac 6000, a blue Oldsmobile Toronado, and a Merkur. These officers radioed in the Toronado's license plate and learned that it was registered to a person living at 2703 Clements Street. Eventually, the three cars left that area and travelled in a line toward the Burger King location. Other surveillance had indicated that gun cases had been loaded into the Toronado. Sergeant David DiBiasi, who was supervising the reverse sting operation, observed the Toronado driving around the Burger King location prior to the transaction, and he opined that it was conducting counter-surveillance.

Officer Derrick Brown was in a Chevy Blazer driven by Officer Harold Stockton. The two officers arrived at the Burger King location at about 7:00 p.m. As they arrived in the parking lot, the officers saw the black Pontiac, in which there were two black males (later identified as Gardner and Russell), pulling out of the lot. Next, they saw another black male (later identified as Sims) walking toward the Blazer. Brown stepped out of the Blazer and met Sims about 25 feet away from the Blazer. Brown asked Sims if he was "Goodie" to which Sims replied that he was. Brown then asked Sims if he had the money, to which Sims replied that it was in the Pontiac 6000.

As those events were occurring, the Pontiac pulled back into the lot, and stopped next to the drive-thru window. As the two men walked toward the Pontiac, Brown told Sims that he had brought only one kilo with him and that the other fourteen were just a phone call away. Brown walked up to the Pontiac and saw Gardner in the driver's seat and Russell in the back seat with a large black bag. The rear window was down, and Russell unzipped the bag, revealing large bundles of U.S. paper currency. After Brown saw the money, he gave the prearranged arrest signal, and then began walking with Sims to the Blazer. As they walked, Brown said to Sims, "Let's check out the dope." In the Blazer, Officer Stockton had one kilogram of cocaine that he and Brown had received from Sergeant David DiBiasi to carry out the sting operation. When Sims and Brown approached, Brown told Stockton to show Sims the dope. Stockton took out the kilo, removed a piece of tape from the package which covered a cut in the plastic, and handed it to Sims. Sims pressed his finger into it to test the cocaine. At that point, Stockton saw the black Pontiac leaving the parking lot and saw the police raid vehicles coming into the area, so he retrieved the package of cocaine. Stockton and Brown then grabbed Sims and placed him under arrest.

Simultaneously, the other officers were closing in on and arresting four other suspects. The Pontiac 6000, driven by Gardner and also containing Russell, drove a short distance before coming to an abrupt halt, at which time both men ran from the car. Both were apprehended within minutes and were arrested. In addition, several officers secured the Toronado before it could drive away. At that time, its occupants, Antoine and Quintin Burt, were arrested. The fifth defendant, Duane Felder, remained at large.

In this same general time frame, the officers participating in the sting operation conducted searches of the Pontiac, the Toronado, and finally the Merkur. ³ In the back seat of the Pontiac the officers found the large black bag containing the cash; when it was counted later there was a total of $336,700. They also found a Benelli 12-gauge, semi-automatic shotgun and a Smith & Wesson 9-millimeter pistol, both fully loaded. In the Merkur was found a pink plastic bag containing a Mossberg 12-gauge, pump-action shotgun with a pistol grip. There was also a Blockbuster Video card with the name Christopher Russell on it.

In the Toronado, there were two black nylon gun cases on the floor of the back seat. Each case contained an AR-15 semi-automatic rifle that had been converted to fire in an automatic mode. There were...