U.S. v. Taylor

• Decision Date: 14 January 1994
• Docket Number: 92-6549,Nos. 92-6548,s. 92-6548
• Citation: 13 F.3d 986
• Parties: P UNITED STATES of America, Plaintiff-Appellee, v. Ronald TAYLOR (92-6548); and Michael Nash (92-6549), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 986

13 F.3d 986

1994 Fed.App. 9P

UNITED STATES of America, Plaintiff-Appellee, v. Ronald TAYLOR (92-6548); and Michael Nash (92-6549),

Defendants-Appellants.

Nos. 92-6548, 92-6549.

United States Court of Appeals, Sixth Circuit.

Argued and Submitted Aug. 17, 1993.

Decided Jan. 14, 1994.

Daniel A. Clancy, U.S. Atty., Joseph C. Murphy, Jr., Asst. U.S. Atty. (argued and briefed), Memphis, TN, for U.S.

Timothy R. Holton (briefed), Crow & Holton, Memphis, TN, for Ronald Taylor.

Stephen B. Shankman (briefed), Patricia A. Crowell (argued), Monroe, Shankman & Kaufman, Memphis, TN, for Michael Nash.

Before: MERRITT, Chief Judge, and BROWN and WELLFORD, Senior Circuit Judges.

MERRITT, Chief Judge.

This is an appeal from defendants' convictions for violations of federal narcotics and firearms laws. The most significant issue is a mandatory minimum sentencing question raised by the court sua sponte at oral argument, the issue discussed below in Section IV.

A five-count indictment was filed in the Western District of Tennessee on September 11, 1990, against six defendants, including Nash and Taylor. Count 1 charged Nash and Taylor with possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1); Counts 2 and 3 charged Nash and Taylor with aiding and abetting each other in using and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. Sec. 924(c) and 18 U.S.C. Sec. 2. Count 2 is differentiated from Count 3 only by the gun named in each count: Count 2 refers to a sawed-off 12-gauge Stevens shotgun, while Count 3 refers to a sawed-off 12-gauge Weatherby shotgun. A jury found Nash guilty of all three counts, and the District Court sentenced him to 27 1/4 years. The District Court dismissed Counts 2 and 3 against Taylor, and the jury adjudged Taylor guilty on Count 1. The District Court sentenced him to 41 months imprisonment.

On appeal, both defendants argue that the case should have been dismissed due the cumulative effects of multiple Jencks Act violations. Taylor argues that there was insufficient evidence to convict him of Count 1, and Nash argues that there was insufficient evidence to convict him of the weapons charges. After the Court raised the issue at oral argument, the parties also filed supplemental briefs addressing the legality of convicting and sentencing Nash on two Sec. 924(c) weapons violations where the two weapons were used or carried in relation to a single predicate drug trafficking offense. For the reasons set forth below, we affirm the District Court on all issues except the legality of Nash's Sec. 924(c) convictions and sentences.

I.

On August 29, 1990, Floyd Bonner, a detective with the Shelby County Sheriff's Office in Memphis, received information from a paid confidential informant, Ricky Gillum. Gillum told Bonner that he had arranged a purchase of 250 grams of cocaine from an individual named "Red," later identified as Eddie Smith. Bonner was to pose as the purchaser of the drugs during the deal, which was planned to take place in a grocery store parking lot. That evening, Bonner and Gillum rode together in an undercover vehicle to the grocery store lot. At least eight undercover officers were also in the lot. When Smith drove into the lot a short time later, Gillum exited Bonner's vehicle and got into Smith's van. Gillum and Smith then drove to the Bellevue Hotel, located just south of the grocery store lot and spoke briefly with defendant Michael Nash. Gillum testified that while in the hotel parking lot, Nash also spoke with occupants of a blue Mercedes.

Defendant Ronald Roosevelt testified at trial that earlier on August 29, 1990, he rode in a Buick to the Bellevue Hotel with Nash and defendant Calvin Pennington. When they arrived at the hotel, Nash exited the car and told Roosevelt and Pennington to go and "get them things." Roosevelt testified that he understood Nash's reference to "things" to mean guns. Roosevelt and Pennington drove to Pennington's residence, retrieved two shotguns and then returned to the hotel. When they returned, Nash was in the parking lot and instructed them to meet in the grocery store parking lot. Roosevelt testified that he and Pennington were to watch Nash's back in case anything went sour during the impending drug deal.

Smith and Gillum left the hotel lot and returned to the grocery store lot. Gillum went back to Detective Bonner's car and told Bonner that the deal was to take place in front of the grocery store. Gillum then returned to Smith's van. At this point, Nash arrived on foot in the parking lot and the blue Mercedes and the Buick were in the lot. Defendant Oliver, the driver of the Mercedes, went into the grocery store. Defendant Taylor, the passenger of the Mercedes, got out of the car, approached Nash and showed or handed Nash two packages. ¹ Nash then went to the Buick in which Pennington and Roosevelt were seated, and instructed Roosevelt to give him the drugs. When Roosevelt asked Nash where the drugs were located, Nash informed him that they were under Roosevelt's seat. Roosevelt handed Nash a brown paper sack. Nash took the sack to Smith's van, got in and showed Gillum its contents: four smaller plastic bags containing a white powder substance. Gillum left the van, and the signal was given for the officers to move in and arrest the defendants.

While effecting the arrests, Officer Blackwell testified that he observed Nash drop the paper sack as he attempted to get out of the van. Officers recovered the sack which was later determined to contain 110 grams of cocaine. The officers also recovered two shotguns from the Buick in which Pennington and Roosevelt were riding, and a small amount of cocaine from the Mercedes in which Oliver and Taylor were riding. Later, while at the police station, Nash made statements to law enforcement officers. Officer Blackwell testified that Nash stated that Pennington and Roosevelt "were out there to handle the situation if it went bad."

On September 10, 1990, a grand jury returned a five-count indictment against Nash, Taylor, Smith, Roosevelt, Pennington, and Oliver. The indictment charged the defendants as follows:

Count 1--possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1); all six defendants

Count 2--using and carrying a firearm (a sawed-off 12-gauge Stevens single shotgun) during and in relation to a drug trafficking crime (namely, Count 1) in violation of 18 U.S.C. Sec. 924(c); all defendants except Roosevelt Count 3--using and carrying a firearm (a sawed-off 12-gauge Weatherby shotgun) during and in relation to a drug trafficking crime (namely, Count 1) in violation of 18 U.S.C. Sec. 924(c); all defendants except Pennington

Count 4--possession of an unregistered firearm (the Stevens shotgun); defendant Pennington

Count 5--possession of an unregistered firearm (the Weatherby shotgun); defendant Roosevelt

Officers Bonner and Blackwell testified for the government at trial. After the direct examination of each witness, the defense requested all Jencks Act materials relating to that witness. The government provided a copy of Bonner's grand jury testimony and reports prepared by each officer. After the witnesses' testimony, however, defense counsel learned that the government possessed transcripts of Bonner's and Blackwell's testimony given in a seizure hearing for a related proceeding. The District Court determined that these materials were Jencks materials and should have been provided to the defense, but found that the government's failure to provide them had been an oversight, not intentional or in bad faith. As a remedy for this violation, the court provided the defendants with the opportunity to recall Bonner and/or Blackwell and to cross examine them regarding the transcripts. Neither of the defendants elected to do so.

During Bonner's testimony, he referred to a drug sample that the prosecution had sent for toxicology testing. The sample was extracted from 1.4 grams of suspected cocaine seized from the Mercedes in which Taylor and Oliver were riding. The prosecutor failed to notify the defendants that the testing was done, and never gave the toxicology reports to the defendants. A bench conference was held during which the prosecutor stated that he had inadvertently failed to provide defense counsel with the test results. When the prosecutor further informed the court that he was unable to locate the test results, the court ruled that the 1.4 grams of cocaine could not be admitted as evidence.

The defendants also requested Jencks material regarding ATF agent Robin King at the close of her direct testimony. The prosecutor initially indicated that no such materials existed. During cross examination, however, King stated that she had prepared notes regarding her examination of the weapons seized during the arrests. Upon receiving and reviewing those notes, defense counsel discovered references to King's own grand jury testimony which the prosecutor had not provided. Pursuant to the Jencks Act, 18 U.S.C. Sec. 3500(d), the District Court struck King's testimony.

At the close of the government's proof, the District Court dismissed Counts 2 and 3 against Taylor. The jury convicted Taylor of Count 1, and convicted Nash on Counts 1, 2 and 3. The District Court sentenced Taylor to a 41-month term of imprisonment on Count 1. The court sentenced Nash to a total of 27 1/4 years incarceration as follows: 27 months for the narcotics conviction (Count 1); five years for the first Sec. 924(c) firearm conviction (Count 2) to run consecutively to Count 1; and twenty years for the second Sec. 924(c) firearm conviction (Count 3) to run consecutively to the other two sentences. Nash and Taylor then filed timely notices of appeal.

During oral argument, this Court raised the question of the legality of convicting and sentencing Nash for two violations of Sec. 924(c) when the two guns were used in...