U.S. v. Straughter

• Decision Date: 14 November 1991
• Docket Number: 91-3012 and 91-3149,Nos. 91-3002,s. 91-3002
• Parties: 34 Fed. R. Evid. Serv. 1326 UNITED STATES of America, Plaintiff-Appellee, v. Charles H. STRAUGHTER, Genell Brown, LaDonna Thornton, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1223

950 F.2d 1223

34 Fed. R. Evid. Serv. 1326

UNITED STATES of America, Plaintiff-Appellee, v. Charles H. STRAUGHTER, Genell Brown, LaDonna Thornton Defendants-Appellants.

Nos. 91-3002, 91-3012 and 91-3149.

United States Court of Appeals Sixth Circuit.

Submitted Sept. 23, 1991.

Decided Nov. 14, 1991.

Gary L. Spartis, Office of the U.S. Atty., Columbus, Ohio, and William E. Hunt, Office of the U.S. Atty., Cincinnati, Ohio, for the United States.

James H. Banks, Columbus, Ohio (briefed), for Charles H. Straughter.

John F. Jackson, Columbus, Ohio (briefed), for Genell Brown.

Steven Mathless, Cassidy & Meeks, Columbus, Ohio (briefed and argued), for LaDonna Thornton.

Before MARTIN and JONES, Circuit Judges, and BROWN, Senior Circuit Judge.

BAILEY BROWN, Senior Circuit Judge.

Appellants Genell Brown ("Brown"), LaDonna Thornton ("Thornton"), and Charles Straughter ("Straughter") were indicted by a federal grand jury for offenses related to a conspiracy to distribute cocaine. The jury trial resulted in conviction of the three defendants. They now appeal their judgments of conviction, seeking reversals. Alternatively, Straughter urges this court to issue an order mandating a change in his sentence. For the following reasons, we affirm all convictions and sentences.

I.

Straughter, Thornton, and Brown make a wide variety of assertions of error on this appeal. For that reason, it is necessary to relate the facts of this case in some detail.

On March 29, 1990, after three days of surveillance of Straughter and his associates, Columbus, Ohio, police observed Straughter delivering a white plastic bag containing two kilograms of cocaine to Michael Richardson, a co-conspirator. The police arrested Straughter, Brown, Thornton, and others, and they searched Michael Richardson's car, Straughter's residence at 7074 White Butterfly (the "White Butterfly" residence), Brown's apartment at 5766 Karenway (the "Karenway" apartment), and an apartment at 5563 Mesa Ridge Road (the "Mesa Ridge" apartment).

Police surveillance of the defendants began two days before the arrests. At 1:00 p.m. on March 27, 1990, police observed a black woman driving a red Escort meet Straughter, who was parked in front of a cleaners. Straughter passed the woman something through the window, and when he withdrew his hand, he held a wad of cash. Thornton rented a red Escort from March 16 to March 28, 1990. Later on March 27, a policeman stopped the red Escort for littering, identified Thornton as the driver, and observed a large wad of cash in her purse.

Later that evening, around 7:30 p.m., police saw Straughter meet someone in the parking lot of a Denny's restaurant. Brown then arrived, met with Straughter, and left when Straughter and the man entered Denny's. Brown promptly returned, placed a package in Straughter's Bronco, and departed. Straughter and the man exited Denny's restaurant. Straughter delivered the package to the man, and the two men departed.

On March 29, 1990, two days later, surveillance of Straughter's White Butterfly residence commenced around 8:50 a.m. A woman arrived in a black Escort leased to Thornton. Shortly thereafter, another woman and two men arrived. The men were later identified as Michael Richardson and Rozelle Carruthers. Richardson and the woman went inside while Carruthers remained in the car. Richardson exited the White Butterfly residence, took Carruthers back to their motel, and then returned to the White Butterfly residence.

The black Escort rented by Thornton left the White Butterfly residence later that morning, arriving at the Mesa Ridge apartment at noon. Straughter was then observed making several trips in and out of the Mesa Ridge apartment complex. This apartment had been rented the previous day by a woman using the name Karen Reynolds. Two persons, representing themselves as George and Karen Reynolds, met with the rental agent to lease the apartment "for relatives." Brown cosigned the lease. The rental agent identified Straughter as the man who purported to be George Reynolds.

At about 1:00 p.m., Straughter left the Mesa Ridge apartment in the black Escort rented by Thornton. Police followed the Escort to Carnaby Shopping Mall. At about the same time, Thornton, driving Straughter's Bronco, and another car containing driver Michael Richardson and a woman, left the White Butterfly residence. Thornton led Richardson to the corner of McNaughten and Main. She parked at the Carnaby Shopping Mall, next to the black Escort. Thornton directed Richardson to park in a lot across the street.

Thornton removed from the Escort a medium-sized white plastic bag and a "large cloth bag." She gave them to Straughter, who placed them in the Bronco. Straughter got into the Bronco, drove across the street, and handed Michael Richardson a white plastic bag that matched the description of the smaller of the bags that Thornton had just transferred from the Escort to the Bronco.

Michael Richardson returned to his car, and both vehicles departed. Police followed Michael Richardson to his motel, where he and Veronica Williams picked up Rozelle Carruthers and Beverly Woods. Police then arrested all four individuals. Inside Veronica Williams' purse, police found two kilograms of cocaine in a white plastic bag.

Simultaneously, the police followed Straughter to the Karenway apartment. He arrived at about 1:30 p.m., removed a "large, red gym bag" from the Bronco, and took it into the apartment. He left five minutes later, without the bag. After Straughter departed, police maintained surveillance of the Karenway address, which had not been under surveillance prior to Straughter's arrival.

The police next observed Straughter around 2:00 p.m., as he departed the White Butterfly address in his Bronco. He subsequently was stopped and arrested. After Straughter's arrest, the police decided to obtain search warrants for Straughter's White Butterfly residence, the Karenway apartment, and the Mesa Ridge apartment. These addresses were kept under surveillance after Straughter's arrest. Preparation of the warrants began around 4:00 p.m. that day.

Before the search warrants were obtained, events occurred that caused the police to enter the White Butterfly and Karenway addresses. At the White Butterfly residence, the police stopped a car after it left the residence around 3:30 p.m., and the occupant informed the police that other people were in the residence. Police SWAT officers entered the residence to secure it until a search warrant could be obtained. The SWAT officers searched the residence for people. Afterward, two narcotics officers remained in the White Butterfly residence to secure it until the search warrant was obtained.

Police did not know whether anyone was in the Karenway apartment. Around 4:20 p.m., after approximately three hours of surveillance, officers saw a Cadillac stop in front of the apartment. Two people emerged, walked toward the apartment, and stopped about six feet from the door. They looked at the officers in the surveillance vehicle, split up, and walked away from the building, disappearing behind a fence.

Apparently worried about the destruction of evidence, the officers then entered the Karenway apartment without the search warrant. They believed that Straughter had many associates, employed counter-surveillance, used mobile phones for easy communication, and had associates who could communicate with anyone in the apartment.

SWAT officers entered the Karenway apartment at 5:15 p.m. They found no people, but one officer found in a closet a "large, partially open bag," containing what he believed to be kilograms of cocaine. (This appears to be the bag that Thornton transferred from the Escort to the Bronco earlier that day). He replaced the bag and reported the incident. Two policemen remained in the Karenway apartment to secure it until the search warrant arrived.

After the search warrants arrived, officers searched the three locations. When officers searched the Mesa Ridge apartment, they found money wrappers, brown wrapping paper, tape, and $231,332 in cash. At the White Butterfly residence, police found memoranda, mink coats, and firearms. At the Karenway apartment, they found twenty-three kilograms of cocaine in the "red gym bag" that Straughter carried into the apartment earlier that day. Police also found a triple beam scale, an electronic scale, ziplock bags, empty kilogram wrappers, rubber gloves, adulterants, and a knife with white powder residue.

After the SWAT team entered the Karenway apartment, but before the execution of the search warrant, police were notified that Brown was en route to the Karenway apartment. Members of the news media already had arrived at the apartment. Police observed Brown stop as she approached the apartment, back up, and pull into a dead end street. She then used her cellular telephone. The police approached Brown and asked her to return with them to her apartment, where the police planned to execute a search warrant. Brown agreed.

Police formally arrested Brown after the execution of the search warrant. Inside Brown's purse, police found receipts for rental cars in Brown's and Straughter's names, mail addressed to Straughter, $1000 money wrappers, and two ledgers that were subsequently identified as drug records in Brown's handwriting. An expert identified the latter as records of a cocaine distribution business, itemizing sales, purchase prices, and debts collected.

Following the arrests, Veronica Williams and Michael Richardson agreed to testify and to plead guilty to conspiracy to possess with intent to distribute two kilograms of cocaine. Michael Richardson testified that he had been dealing with Straughter since May of 1989, and that he had handled thirty to forty kilograms of cocaine from Straughter prior to the March 29, 1990, arrests. The testimony of Veronica Williams and Michael Richardson corroborated the police version of the events...