U.S. v. Stines
| Decision Date | 03 December 2002 |
| Docket Number | No. 01-1179.,No. 01-1119.,No. 00-1594.,No. 00-1222.,00-1222.,00-1594.,01-1119.,01-1179. |
| Citation | 313 F.3d 912 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Joseph Rovess STINES; Durand Chaunce Ford; Keith Maurice Phelan; Kenneth Andrew Jefferson, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Patricia G. Gaedeke (argued and briefed), Office of the U.S. Attorney, Detroit, MI, for Plaintiff-Appellee in 00-1222, 00-1594, 01-1119 and 01-1179.
Raymond R. Burkett (briefed), Arlene F. Woods (argued and briefed), Detroit, MI, for Defendant-Appellant in 00-1222, 00-1594.
Ellen Dennis (argued and briefed), Saline, MI, for Defendant-Appellant in 01-1119.
Kenneth Andrew Jefferson, Federal Correction Institute, Loretto, PA, pro se.
Christopher J. Pagan (argued), Repper, Powers & Pagan, Middletown, OH, Timothy P. Murphy (briefed), St. Clair Shores, MI, for Defendant-Appellant in 01-1179.
Before: SILER and MOORE, Circuit Judges; STAFFORD, District Judge.*
Defendants Joseph Rovess Stines, Durand Chaunce Ford, Keith Maurice Phelan and Kenneth Andrew Jefferson challenge, on a wide variety of grounds, their convictions and sentences following a jury trial in the district court. All four defendants were found guilty of conspiring to distribute and to possess with intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846. For the reasons that follow, we affirm the district court.
Because resolution of defendants' sentencing issues concerning the application of the rule from Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and its progeny, in particular, United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002), may have precedential value, those issues will be addressed below. The remaining issues raised by defendants are addressed in an unpublished appendix to this opinion.
The voluminous testimony and other evidence introduced at trial established the following facts. In the late 1980's Joseph Stines organized a gang in Ypsilanti, Michigan, to "distribute crack cocaine and make money." The initial members included Keith Phelan, Tever Scarbrough, Reese Palmer, Rasual Warren, Hans Thomas and Stanley Anderson. Stines and Palmer learned to measure, package and "rock up" crack cocaine in 1989. Together with Hans Thomas, they obtained large quantities of cocaine from LaBaron Hunter and other sources in Detroit and brought it back to Ypsilanti to be processed and distributed.
During the early years, Stines sold directly to customers, sometimes out of a parked car. Stines was arrested in June 1989 for selling crack on the street. By 1993, Stines considered himself a "drug kingpin," and he divided up and assigned territory to other members.
In May 1995, Oscar Little, an acquaintance of Stines, agreed to cooperate with the police. Little purchased one ounce of crack directly from Stines at an apartment on Elmwood. The purchase and other information supplied by Little provided probable cause to search the apartment on Elmwood and Stines's apartment on Spinnacker Way. Stines and Phelan, along with other gang members, were present when the Spinnacker Way apartment was searched. No measurable amount of cocaine was recovered but police recovered $680 in recorded currency from the sale to Little and a bowl containing cocaine residue, filter masks and an assault rifle. Stines was arrested after the search and he offered to cooperate with the police. He told Lieutenant Donald Bailey that he was buying ten to fifteen kilograms of cocaine from LaBaron Hunter every couple of weeks. Bailey released Stines, hoping to use him to investigate Hunter, but Stines did not cooperate.
Rasual Warren, one of the original gang members, was released from a rehabilitation program in July 1996. Phelan directed Warren to JJ's Car Wash when he asked about Stines. Stines introduced Durand Ford as his "right hand man" and Phelan as his "enforcer." Initially, Stines said that he wasn't in the drug business any more, then said he still sells but "keeps it in the Stone Life [gang] circle." Stines assigned Warren to sell crack on Grove Street, but he was later moved to make room for Palmer. Warren accompanied Stines to a house on Calder Street that belonged to Ford's grandmother. Stines retrieved two ounces of crack from the house. After Warren was arrested in 1996, Stines moved the cocaine and some guns from the house on Calder, but he told Palmer that he left one gun behind so that Ford would have protection. Based on information from Warren, police searched the house on Calder and found one handgun in the bedroom that appeared to be occupied by Ford.
After Palmer was released from prison in September 1996, he chose Grove Street as his territory. One of his customers was a white male called "Eric," an undercover police officer. Palmer made several sales to Eric in October and November 1996. Palmer was arrested based on those sales. He agreed to cooperate with the police and taped a conversation with Stines during which Stines talked about tactics to evade police by revealing that he did not "go outside the circle," and he had Ford deal with everyone else. After Palmer bought crack from him, Stines left in a car driven by Ford.
Police managed to make a series of undercover crack purchases from Scarbrough in July 1997. Scarbrough arrived for the third meeting in a car registered to Kenneth Jefferson. After Scarbrough was arrested, he allowed police to record a conversation with Stines that provided police with Stines's Doral Street address. Scarbrough also bought an ounce of crack from Stines while police surveilled from a distance. Two days later, Scarbrough met Stines outside a store to pay for the crack. While they talked in the car, Phelan took some other men who had accompanied them into the store.
Later that same year, Jefferson sold Labron Nunn two and a half ounces of crack. Jefferson obtained the crack for the sale from Anita Hargrove's home, where he was staying. Hargrove was Stines's girlfriend and he used her apartment as a "stash house." Jefferson asked Nunn to join "the family," but Nunn declined.
In 1999, Stines, Ford, Phelan, Jefferson, Antonio James, David Bowles and Aaron Bowles were indicted on one count of conspiracy to distribute and to possess with intent to distribute cocaine and cocaine base. When Jefferson was subsequently arrested, he admitted that he had started selling crack in Ypsilanti in the summer of 1996. He said that Scarbrough was one of his principal suppliers and that he often bought one-eighth of a kilogram, but on two occasions he had purchased a half kilogram.
All seven defendants were tried and found guilty. The three defendants who are not parties to this appeal cooperated with the government in return for sentence reductions.
As the trial occurred before the decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the jury was not called upon to determine drug quantity or type. The court sentenced Stines to a term of 400 months and Ford to 292 months, both prior to the decision in Apprendi. The district court determined, post Apprendi, that the sentences imposed on Phelan and Jefferson could not exceed 240 months, the statutory maximum penalty for an unspecified amount of cocaine and cocaine base.
The conspiracy alleged in the indictment did not specify the quantity of the cocaine and cocaine base. The parties did not ask for special findings, so the jury's verdict established only that the conspirators were liable for an unspecified quantity of cocaine and cocaine base.
Jefferson and Phelan both argue that the district court's failure to submit the drug type and quantity determination to the jury violates their constitutional rights in light of Apprendi. The Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 (emphasis added). Because the district court limited the defendants' sentences to twenty years, and the statutory maximum penalty for an unspecified quantity of any form of cocaine is twenty years, see 21 U.S.C. § 841(b)(1)(C), the Apprendi ruling is not triggered and does not impact the sentence for either Jefferson or Phelan. See, e.g., United States v. Stafford, 258 F.3d 465, 478-79 (6th Cir.2001) ( ).
Defendants urge us to expand our application of Apprendi to disapprove of the imposition of a mandatory guideline minimum sentence unless a jury has made findings beyond a reasonable doubt as to the facts necessary to establish that guideline minimum. To support this argument, they rely on United States v. Ramirez, 242 F.3d 348, 351 (6th Cir.2001), which held that Apprendi was applicable when a defendant's penalty was increased from "a nonmandatory minimum sentence to a mandatory minimum sentence, or from a lesser to a greater minimum sentence." Defendants claim that the logical extension of this decision would be to apply Apprendi to mandatory minimum sentences imposed under the sentencing...
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