U.S. v. Stephenson, s. 94-2435
| Decision Date | 08 May 1995 |
| Docket Number | Nos. 94-2435,94-2436 and 94-2437,s. 94-2435 |
| Citation | 53 F.3d 836 |
| Parties | 42 Fed. R. Evid. Serv. 136 UNITED STATES of America, Plaintiff-Appellee, v. Frank A. STEPHENSON, Michael L. Tate, and Donnell M. Hill, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
David E. Risley (argued), Rodger A. Heaton, Asst. U.S. Atty., Office of the U.S. Atty., Springfield, IL, for plaintiff-appellee.
Steven C. Mills, Springfield, IL (argued), for defendants-appellants.
Before MANION and ROVNER, Circuit Judges, and NORGLE, District Judge. *
This is the consolidated appeal of three defendants, all of whom were convicted of various offenses arising out of a conspiracy to distribute cocaine in Springfield, Illinois. Defendants challenge their convictions and sentences on several grounds. We affirm the district court in all respects.
Defendants Donnell M. Hill ("Hill"), Michael L. Tate ("Tate"), and Frank A. Stephenson ("Stephenson") were charged in a five count indictment. Count I charged that Defendants conspired with each other and Harrison Richard King ("King") to distribute cocaine in violation of 21 U.S.C. Secs. 846 and 841(b)(1)(A). Count I also alleged that defendants committed the acts alleged in Counts II, III, IV, and V in furtherance of the conspiracy. Count II charged defendants with attempting to possess cocaine and cocaine base with the intent to distribute on December 9, 1991, in violation of 21 U.S.C. Secs. 846 and 841(b)(1)(B). Count III charged defendants with using a firearm during a drug trafficking offense in violation of 18 U.S.C. Sec. 924(c). Counts IV and V charged Tate with distributing cocaine base ("crack") in violation of 18 U.S.C. Secs. 841(a)(1) and 841(b)(1)(B)(iii). The jury found all defendants guilty of Counts I, II, and III. The jury found Tate guilty of Count IV but not guilty of Count V.
The facts adduced at trial revealed that King was a member of the Gangster Disciple gang which was affiliated with a Springfield gang known as the Eight Ball Posse. The Eight Ball Posse was formed in 1989 by Alphonso Hatchett and originally consisted of approximately thirteen people. The purpose of the association was primarily cocaine distribution, and King was one of the principal cocaine suppliers to the Eight Ball Posse. The original membership of the Eight Ball Posse included, among others, Myron Barber ("Barber"), King, Tate, and Hill. 1
The Eight Ball Posse began falling apart after Alphonso Hatchett was killed by a rival gang member. At that point, King, Tate, Hill, and Stephenson began dealing drugs on their own as a partnership ancillary to the Eight Ball Posse. Thus, not all of that smaller group's dealings were connected to the Eight Ball Posse.
In September 1991, Michael Harris ("Harris") began buying cocaine from King. Generally, these transactions involved four and one-half to nine ounces of cocaine at a time, which King would "front" to Harris by allowing him to pay for the drugs after Harris sold them. Nonetheless, on one occasion near the end of October 1991, Harris bought a quarter kilogram of cocaine from King for cash. He gave King $5,000 initially, and two days later King and Hill came to Harris's house. Hill handed Harris the package containing nine ounces of cocaine, and Harris gave King the $2,500 remaining balance. Harris went downstairs and put the drugs in his safe while King and Hill remained upstairs.
Prior to November 1991, King purchased cocaine through Dorothy Gragg ("Dorothy"), whose source lived in Chicago. Dorothy was the wife of Willis Gragg ("Willis") who had been a major cocaine supplier for Springfield until he was imprisoned. Dorothy carried on Willis's business after his incarceration. Dorothy was able to perpetuate the family dynasty because the Chicago source would not deal with anyone other than her. Also during her husband's incarceration, Dorothy became King's girlfriend. Predictably, this created tension between King and Willis.
Tired of making the trip with Dorothy himself, in September or October 1991, King paid Harris to go to Chicago with Dorothy and purchase cocaine. The duo, carrying $40,000 in cash, half of which was King's, drove to Chicago and purchased two kilograms of cocaine. 2 The other half of the money belonged to Robert Wallace ("Wallace"), King's friend and close business associate.
Willis was released from prison in late November of 1991. After his release, he cut off Dorothy's independent connection to the Chicago source and channelled all access to that source of cocaine through himself. At this point, Harris stopped buying cocaine from King and began purchasing from Willis.
Soon after his release from prison, Willis sent Dorothy and Harris up to Chicago to purchase cocaine. Carrying $46,000, the pair drove to Chicago and obtained a motel room. Dorothy telephoned the source, who informed her that the runner would not be able to pick up the money right away. She then called Willis and told him that they had arrived too late and would need to spend the night in Chicago. She also called King and advised him that if he wanted to purchase any cocaine, he had to bring the money to Chicago.
King appeared at the hotel the next morning and was shocked to find Harris there. King left $18,500 with Dorothy and told her that he would see her when she returned to Springfield. After King left, Dorothy purchased three and one-half kilograms of cocaine from the source and brought it back to Springfield. She gave Harris a kilogram, evidently to store for Willis, and took two and one-half kilograms to give to King and Wallace.
On December 7 or 8, 1991, roughly ten days after the above transaction, Willis sent Harris and Dorothy to Chicago again. They brought along approximately $48,000 to purchase two and one-half kilograms of cocaine.
On returning to Springfield, Dorothy and Harris brought the cocaine to Willis's house, where he lived with his parents. The two talked with Willis, his father and a few other people. A short time later, King, Hill, Tate, and Stephenson joined the group at the house. King asked Willis whether he had purchased any cocaine. Willis told King that he should mind his own business. During the conversation, the cocaine was in a gym bag on the floor where everyone in the room could see it. Harris surmised that King knew there was cocaine in the bag. After Willis told King to mind his own business, King, Hill, Tate, and Stephenson left the house laughing.
Ten minutes after King and Defendants left, Harris took one kilogram of the cocaine to store in his safe for Willis and left the house. Dorothy took one and one-half kilograms to Wallace who, along with Willis, had provided the money for the contraband.
Harris, with the help of Carl Bell and Darryl Fane, cooked one-half ounce of the cocaine into crack. He separated out four and one-half ounces and delivered it to Willis. Harris separated the rest of the cocaine out into one ounce bags and stored it in the safe in two separate brown paper bags: one bag contained twenty ounces and the other contained nine ounces. The nine ounces were Willis' payment to Harris for making the trip to Chicago. At that time, the safe also contained a bracelet, some food stamps, and a .380 caliber pistol.
King knew about Harris's safe because he had seen Harris store cocaine there during their prior drug dealings. Dorothy knew that Harris stored cocaine for Willis in the safe, and Harris assumed that King knew it as well.
At approximately 12:30 p.m. the next day, December 9, 1991, Stephenson, Hill, and Tate attempted to rob Harris of the contents of his safe. Stephenson knocked and was allowed entry by a fourteen year-old boy named Damion Champion. After Stephenson was inside, Hill and Tate pushed their way into the house. Hill was carrying a nine millimeter semi-automatic pistol. When Harris entered the room, Hill stated: Stephenson then added: (Tr. at 69-70.)
The group went down to the basement with Hill holding the gun to Harris's head. Once in the basement, Defendants demanded that Harris open the safe. Stephenson stated that if Harris did not open the safe, Hill would shoot him. Stephenson then broke a fluorescent light bulb across Harris's face, and Hill followed up by hitting him in the head with the gun. Harris fell to the floor, and Hill and Stephenson beat him on the chest, all the while demanding that he open the safe.
While this was occurring, Tate was walking through the house picking up small items, such as a camcorder and camera. He appealed to Hill and Stephenson to leave because he did not believe that Harris would open the safe. At some point, Damion Champion broke away from Defendants and ran out of the house. Hill then stated that he could get Harris to open the safe by threatening the lives of Harris's children. When Stephenson went upstairs to look for the children, Harris got off the basement floor and ran out of the house. A truck stopped and the driver radioed for help. Subsequently, the police arrived and Harris went to the hospital where he received three stitches on the side of his face.
Lakenya Champion (Damion's sister) who shared the residence with Harris, gave the police permission to search the house. When asked about the safe, Lakenya stated that it belonged to King and asked that the police remove it from the house. The police brought the safe to the Springfield Police Department, and after obtaining a search warrant, opened the safe. It contained a brown paper bag with seventeen clear plastic bags containing cocaine, another brown paper bag with eight plastic bags of cocaine, and three loose plastic bags with crack. In total, there were 676.6 grams of cocaine and 15.6 grams of crack.
On February 11, 1992, in a tape-recorded conversation with Barber, who was acting as a Drug...
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