U.S. v. Smith
| Decision Date | 14 December 1990 |
| Docket Number | No. 88-5187,88-5187 |
| Citation | 918 F.2d 1501 |
| Parties | 31 Fed. R. Evid. Serv. 1408 UNITED STATES of America, Plaintiff-Appellee, v. Andrew Jackson SMITH, Isaac Hicks, Samuel Smith, James Sawyer, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Arthur Joel Berger, Miami, Fla., for A.J. Smith.
Dexter W. Lehtinen, U.S. Atty., Lee S. Massey, Linda Collins-Hertz, Anne M. Hayes, Asst. U.S. Attys., Miami, Fla., for U.S.
John Lipinski, Miami, Fla. (court appointed), for S. Smith.
Lee Weissenborn (court appointed), Sheridan Weissenborn, Miami, Fla., for James Sawyer.
William R. Tunkey (court appointed), Miami, Fla., for Isaac Hicks.
Appeal from the United States District Court for the Southern District of Florida.
Before KRAVITCH and ANDERSON, Circuit Judges, and GODBOLD, Senior Circuit Judge.
Defendants Isaac Hicks, James Sawyer, A.J. Smith, and Samuel Smith appeal from their convictions and sentences following a five-week narcotics conspiracy trial. 1 We affirm on all issues with a single exception. Defendants Hicks and A.J. Smith were improperly convicted of multiple firearm offenses; we vacate their sentences on these convictions and remand to the district court with instructions.
The major issues involve validity and execution of search warrants (Hicks), severance (Samuel Smith and Sawyer), evidentiary issues (Sawyer), jury instructions (Samuel Smith), excusal of a juror and substitution of an alternate (Hicks, Samuel Smith and A.J. Smith), sufficiency of the evidence (Sawyer and Samuel Smith), sentencing issues (A.J. Smith and Samuel Smith), and validity of multiple firearms convictions (Hicks and A.J. Smith).
During an 18-month investigation beginning in October 1985 federal and local government investigators obtained and executed some 20 warrants to search various residences used by the defendants in Miami, Florida. During these searches investigators seized narcotics, firearms, cash and jewelry, as well as documentary evidence that included several ledgers.
During the first three months of the investigation the agents focused on three residences: 1935-A N.W. 95th Terrace (located near a public high school) where Sawyer resided, 2170 N.W. 91st Street where A.J. Smith resided, and 2000 N.W. 105th Street where Isaac Hicks and Janet Hicks resided. During this period confidential informants made three or four purchases of cocaine from Sawyer at both the 95th Terrace and the 91st Street residences. Undercover agents observed unusually high traffic flows at all three of these locations (for example, up to 300 separate cars and trucks during one three-hour period on a Friday or Saturday evening). Agents saw Sawyer and A.J. Smith frequently entering and leaving the 2000 N.W. 105th Street residence and otherwise interacting with Hicks.
On January 7, 1986 law enforcement agents obtained and executed warrants to search the 95th Terrace (Sawyer) and the 91st Street (A.J. Smith) residences. A.J. Smith was outside his residence when the agents conducted their search. They discovered cocaine, packaging materials, including manila envelopes labeled in red, cash, and mail addressed to Smith and to Isaac Hicks. They also found a rifle, a crossbow and a hand grenade in the house, as well as several handguns in Smith's car.
At Sawyer's residence agents discovered two handguns and a large quantity of cash. Sawyer was carrying $2,000 in cash on his person on the day of the search. At 95th Terrace investigators found several ledgers containing listings of quantities of narcotics and of money values, and references to Sawyer, A.J. Smith, Hicks, and others involved in the alleged conspiracy. The ledger's author or authors used a system of color codes and coded notations in recording information. Different colors corresponded to different quantities of narcotics.
Later that month, after another undercover purchase at A.J. Smith's residence, agents again executed search warrants at the 95th Terrace and 91st Street residences. A.J. Smith and Sawyer were together at Smith's residence when the agents arrived. In this residence they discovered cocaine and photographs of Smith brandishing firearms and money. In both residences investigators found loose papers similar to the entries in the ledgers seized from Sawyer's residence earlier in the month.
After these searches activity at these residences subsided. With the aid of a confidential informant investigators arranged purchases of cocaine at other locations identified by Sawyer and surveilled other locations through July 1986. In late June agents again searched Sawyer's residence and seized narcotics, packaging materials, cash, ledgers, and a handgun. On July 25, 1986, after an undercover purchase of a half-ounce of cocaine at Hicks's residence, law enforcement agents obtained and executed a search warrant for that residence, 2000 N.W. 105th Street. Hicks, Sawyer, and others were present during the search. The agents seized automatic weapons and cash in the house. In the carport they discovered cocaine under Hicks's car. Agents also seized a business card from Hicks's person, the back of which contained the same kind of color and numerical codes used in the ledgers seized at Sawyer and A.J. Smith's residences.
In the following months the investigation spread to yet more residences. Agents continued the pattern of executing search warrants and seizing narcotics and firearms. By October 1986 Sawyer had apparently moved from the residence on 95th Terrace to a house at 2137 N.W. 92nd Street. Investigators executed a search warrant at this residence in late October and seized marijuana, packaging materials, an adding machine, ledgers, photographs of Sawyer, Hicks and A.J. Smith, cash, and firearms.
Investigators became aware of defendant Samuel Smith's role in the conspiracy in late 1986, through the aid of his cousin, informant Alice Rolle. Samuel Smith told Rolle that he worked for Hicks selling drugs. On several occasions Rolle purchased narcotics from Samuel Smith, who had in turn obtained the drugs from Hicks. Rolle also observed Hicks pay his "employees" with cocaine at his residence. In February 1987 Rolle attempted to purchase cocaine directly from Hicks at his residence but was informed that she would have to speak to Samuel Smith. Samuel Smith later arrived at Hicks's residence and reprimanded Rolle for not dealing through him. He told Rolle, "[I]f I buy something from him and get busted, I suppose to die." A couple days after this episode Samuel Smith visited Rolle early in the morning and told her that he had heard she was an informer and that only his influence had saved her life.
In February 1987 Debra Plez became an informant for the law enforcement team. Plez was a social acquaintance of Hicks and had previously purchased cocaine from him. Twice in March and April 1987 Plez purchased cocaine from Hicks in transactions monitored and recorded by law enforcement agents. Plez also asked if she could buy a kilogram or half a kilogram of cocaine from Hicks; Hicks told her to let him know when she was ready.
Events in late April 1987 marked the crescendo and the end of the investigation. In conversations on April 14 and 23 A.J. Smith informed Plez that he and Hicks expected to receive a shipment of 40 kilograms of cocaine at Dodge Island on April 24. On the evening of the 24th Plez was present at Hicks's residence on 105th Street, along with Hicks, Sawyer and A.J. Smith. Plez observed a briefcase in the open trunk of Hicks's car that contained, according to A.J. Smith, $250,000. At this point Plez left the house, walked to a gas station and called Detective Dennis Reddington. 2 Hicks, Sawyer and another departed the residence in a van and returned a few hours later. Hicks walked out of the van carrying a package that appeared to contain a white substance. Plez then overheard Hicks comment to A.J. Smith: "This stuff here better be like the other, because this is righteous."
A.J. Smith then invited Plez to join him and another person as he drove the van to another of Hicks's residences, 9800 N.W. 25th Avenue. Smith backed the van up to the garage at this residence, and he and the other person unloaded boxes from the van. Two of these boxes were open; they appeared to Plez to contain small packages of cocaine. After unloading the van Smith and the others returned to 2000 N.W. 105th Street.
Three days later, on April 27, Plez contacted Detective Reddington. Based on the information she provided, Reddington obtained a warrant to search the residence at 9800 N.W. 25th Avenue. Meanwhile, agents surveilling this house observed Hicks's car arrive and depart about a half hour later. After a high-speed chase they stopped Hicks and Sawyer in the car. Reddington arrived at the scene of the stop and obtained a garage door opener from Hicks's car. The agents then placed Hicks and Sawyer in a police car and transported them to 9800 N.W. 25th Avenue. Reddington and other agents entered the garage using the opener, knocked on the door and announced their presence, and executed the search warrant.
This search proved to be the payoff. It revealed over 11 kilograms of cocaine in various stages of preparation and packaging, cocaine processing equipment and literature, packaging materials marked with color coding, and ledgers containing codes of the same sort discovered in earlier searches in the investigation. The agents also found over $33,000 in cash in the house, jewelry valued by the government at over $400,000, three handguns, and a sawed-off rifle. They also found mail addressed to Samuel Smith at 2000 N.W. 105 th Street. Hicks, Sawyer, and others were arrested at the scene.
The grand jury returned an indictment charging these defendants with the following offenses:
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