U.S. v. Stephenson
| Decision Date | 25 January 1991 |
| Docket Number | 89-2513,89-2473,89-2514,Nos. 89-2472,89-2566,s. 89-2472 |
| Citation | 924 F.2d 753 |
| Parties | 32 Fed. R. Evid. Serv. 939 UNITED STATES of America, Appellee, v. Oneil F. STEPHENSON, Appellant. UNITED STATES of America, Appellee, v. Ian J. GOHAGEN, Appellant. UNITED STATES of America, Appellee, v. Christopher G. CONSTANTINE, Appellant. UNITED STATES of America, Appellee, v. Raymond A. EBANKS, Appellant. UNITED STATES of America, Appellee, v. Michael J. SWABY, a/k/a Tuffy Ricky, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
James R. Hobbs, Kansas City, Mo., for Stephenson.
Kenneth C. Hensley, Independence, Mo., for Gohagen.
John W. Franklin, Kansas City, Mo., for Constantine.
Claudia J. York, Kansas City, Mo., for Ebanks.
Leonard L. Meyer, Independence, Mo., for Swaby.
Peter M. Ossorio, Kansas City, Mo., for appellee.
Before FAGG and BEAM, Circuit Judges, and ROY, * Senior District Judge.
The appellants in these consolidated appeals were members of a cocaine base distribution ring, which operated in Kansas City, Missouri and adjacent areas in 1987 and 1988. On November 15, 1988, an indictment was returned against appellants charging them with conspiracy to distribute 50 grams or more of cocaine base ("crack") in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(A), and 846. The indictment alleged that the conspiracy spanned from "on or about May 28, 1987 until on or about August 23, 1988." Appellants were taken into custody during the months of November and December 1988. All five entered pleas of not guilty and were detained pending trial.
Appellants were tried jointly before a jury in the United States District Court for the Western District of Missouri. 1 On March 3, 1989, after ten days of trial, the jury returned a verdict of guilty as to each appellant upon the charge of conspiracy to distribute 50 grams or more of a mixture and substance containing cocaine base. The sentences imposed upon appellants range from 22 years to 33 years. All filed separate appeals and are represented by separate counsel. Appellants raise, both collectively and individually, eleven grounds for reversal of the judgments entered against them. Finding no prejudicial error as to any of the points raised, we affirm the judgment of conviction as to each of the five appellants.
In June 1987, appellant Christopher Constantine opened a drug house in Kansas City, Missouri. The actual delivery of the drugs and receipt of the money was done by others, including appellants Oneil Stephenson, Ian Gohagen and Michael Swaby. During the summer and fall of 1987, the group opened and controlled the operation of several other crack houses in the Kansas City area. Appellants Stephenson and Swaby, and another individual now deceased, routinely worked together in the delivery of the drugs and picking up of money. The members of this ring made a practice of arranging their currency, usually in denominations greater than one dollar, in folded increments of $100, secured by a rubber band into stacks of $1,000. Appellant Raymond Ebanks initially joined the ring as a "worker" selling cocaine base. In 1988, he continued to sell, working for Gohagen. At the peak of appellants' enterprise, receipts from drug sales were in the range of $10,000 to $15,000 daily, involving trash bags full of money.
In November 1987, officers from the Kansas City, Missouri Police Department and special agents from the Bureau of Alcohol, Tobacco and Firearms ("ATF") and the Immigration and Naturalization Service raided three of appellants' suspected crack houses, and in December 1987 raided another. Although appellants narrowly escaped apprehension in these raids, a number of workers were arrested and a quantity of drugs, guns and cash was seized. A group of the conspirators fled to a motel in Kansas City, Missouri, then traveled by airplane to New York City. Having been alerted by the Kansas City police, law enforcement officers at LaGuardia Airport approached appellants Gohagen, Ebanks and a female companion and, following a consent search, seized $6,190 of suspected drug money.
During the spring of 1988, certain ATF agents developed a cooperating witness by the name of Donald Dixon. Dixon had run afoul of the law by making certain false statements in the purchase of a total of 33 firearms in the State of Kansas. Pursuant to a plea agreement, Dixon agreed to assist the authorities in their investigation of appellants. Dixon introduced a Kansas City, Missouri police detective, Donald Birdwell, to Gohagen and, on three occasions in May and July 1988, Birdwell purchased crack from Gohagen. On June 23, 1988, another detective bought crack from Stephenson. Although it was never fully carried out, Dixon also assisted the ATF agents in an operation in which they sought to trade machine guns to Gohagen and others in exchange for cash and cocaine.
Dixon and five other friends and associates of appellants, among them Teresita Morris, Donna Alexander, Carl Williams and Robin Wilkes, were the government's chief witnesses as to the actual operations of the conspiracy. These witnesses gave testimony outlining a number of trips by Constantine to Los Angeles, California, from which he would return with parcels the size of small shoe boxes. Subsequent to her arrest with Constantine on November 21, 1988, Ms. Morris gave her consent for law enforcement officers to search two residences, one located in Kansas City, Missouri and the other in Kansas City, Kansas. Ms. Morris admitted having rented the house in Kansas City, Kansas for Constantine. A weapon, ammunition, drug paraphernalia, and a briefcase, which was identified as Constantine's, were found during the search of the Missouri house. The house in Kansas was raided the following day, and Ebanks and Gregory Harvey, a nephew of Gohagen, were taken into custody.
A search of that dwelling produced three pistols, a briefcase similar to the one seized the day before, and a notebook with figures in it which bore Constantine's palm print. Ebanks had $1,278 on his person. The officers also found $10,630 in a brown shoulder bag near Ebanks and $43,900 in the briefcase. Both Ebanks and Harvey initially lied about their identities, as Gohagen, Swaby and Constantine previously had at the time of their arrests. As noted previously, all five appellants were convicted on March 3, 1989 of conspiring to distribute 50 or more grams of cocaine base and sentenced to lengthy terms of imprisonment.
The facts set forth above, which are amply supported by substantial evidence, reveal that each of the appellants was deeply involved in a conspiracy to distribute significant quantities of cocaine base. Although the role of Constantine was somewhat different from the others, the evidence adduced, both direct and circumstantial, clearly implicated all appellants in this unlawful conspiracy. We will first discuss those grounds for reversal which address specific concerns of the various appellants, then those grounds upon which any relief granted would inure to the benefit of all.
Stephenson contends that the district court erred in denying his motion to suppress statements and evidence obtained during his detention by Drug Enforcement Agency ("DEA") agent Carl Hicks at Kansas City International Airport on August 4, 1988. Specifically, Stephenson argues that the detention of him and the seizure of suspected drug money from him and his companion was unlawful due to the lack of any reasonable and articulable basis to support it. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1967).
In support of the district court's ruling, the government advances a two-pronged argument defending the lawfulness of the stop and the seizure of the money. The government contends that the initial meeting between Stephenson and Hicks was merely a "consensual encounter" and, as such, neither implicated nor infringed upon the Fourth Amendment. The government then concedes that after Stephenson's answers and reactions aroused Hicks' suspicions, the encounter indeed escalated into a Terry "investigative stop," but suggests that the requisite legal justification was clearly present.
A hearing on Stephenson's motion to suppress was held before United States Magistrate John T. Maughmer on January 17, 1989. The evidence adduced at that hearing revealed that on the morning of August 4, 1988 Agent Hicks and another law enforcement officer were observing departing passengers in an effort to discover individuals traveling from Kansas City to New York City with illegal narcotics proceeds. At approximately 8:30 a.m., Hicks' attention was drawn to Stephenson and his companion, later identified as Tony D. Smith, because they appeared to be of Jamaican descent or members of a Los Angeles gang known for cocaine trafficking. Hicks observed a thick "wad" of money through the fabric of Smith's back pants pocket, and he noticed bundles of a similar size and shape in both front pockets. According to Hicks, both Stephenson and Smith appeared nervous as they approached the security gate.
Based upon all of these observations, Hicks came to the conclusion that Stephenson and Smith were possibly carrying to New York currency obtained from the sale of illegal narcotics in Kansas City. Hicks showed his badge to both Stephenson and Smith, identified himself as a police officer and asked if he could briefly speak with them, to which Stephenson replied in the affirmative. The other officer was roughly ten feet away during this initial discussion.
Hicks at that time observed that Stephenson's hands and knees were shaking noticeably, and that Stephenson spoke with a Jamaican accent. Stephenson advised Hicks that he was...
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