U.S. v. Thomas

Decision Date03 June 1997
Docket NumberNos. 93-3206,93-3208,93-3209,94-3047 and 94-3055,s. 93-3206
Citation324 U.S. App. D.C. 374,114 F.3d 228
PartiesUNITED STATES of America, Appellee, v. Gregory M. THOMAS, Appellant.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeals from the United States District Court for the District of Columbia (91cr0559-09) (91cr0559-11) (91cr0559-13) (91cr0559-16) (91cr0559-22).

James T. Maloney, appointed by the court, Washington, DC, argued the cause for appellant Gregory M. Thomas and was on the joint briefs.

Mary E. Davis, appointed by the court, Washington, DC, argued the cause for appellant Andre Williams and was on the joint briefs.

Paul Kay, appointed by the court, Washington, DC, argued the cause for appellant Donnell O. Williams and was on the joint briefs.

Dennis M. Hart, appointed by the court, Washington, DC, argued the cause for appellant Derrin A. Perkins and was on the joint briefs.

Marian Flynn, appointed by the court, Washington, DC, argued the cause for appellant McKinley L. Board and was on the joint briefs.

Geoffrey Bestor, Assistant U.S. Attorney, Washington, DC, argued the cause for appellee, with whom Eric H. Holder, Jr., U.S. Attorney, John R. Fisher and Thomas J. Tourish, Jr., Assistant U.S. Attorneys, were on the brief. Elizabeth Trosman, Assistant U.S. Attorney, entered an appearance.

Before WALD, SILBERMAN and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD, Circuit Judge SILBERMAN, and Circuit Judge ROGERS.

WALD, SILBERMAN, and ROGERS, Circuit Judges:

According to a 115-count superseding indictment, appellants McKinley Board, Gregory Thomas, Donnell Williams, Andre Williams, and Derrin Perkins, and nineteen others were players in a sizable conspiracy (the "R Street Crew") to distribute marijuana, PCP, and cocaine around the intersection of R Street and Lincoln Road in Northeast Washington, D.C. On December 23, 1991, Judge Revercomb divided the 24 defendants into four groups for separate trials; the convictions of the first group, which included the three principal leaders of the gang still alive (Anthony Nugent, Kevin Williams-Davis, and Darryl Williams), were affirmed on appeal in United States v. Williams-Davis, 90 F.3d 490 (D.C.Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 986, 136 L.Ed.2d 867 (1997). Appellants, who were tried in the second group of defendants, contest their convictions and life sentences for various drug-related offenses. We affirm.

I. Background
A. The Organization

Viewed in the light most favorable to the government, the evidence introduced at trial established that by 1983 the R Street Crew had established a single coordinated drug distribution network selling principally PCP and marijuana. Following the familiar pattern, see Williams-Davis at 494; United States v. Childress, 58 F.3d 693, 711 (D.C.Cir.1995), cert. denied, 516 U.S. 1098, 116 S.Ct. 825, 133 L.Ed.2d 768 (1996), Nugent, Williams-Davis, and Darryl Williams (and other unindicted leaders) used a number of lieutenants to coordinate the sale of drugs by others (the runners), who were often juveniles. The organization's lieutenants provided the runners with drugs, collected money from them, and paid them; the lieutenants in turn paid the leaders proceeds from the sales. Many of the lieutenants and runners were close friends or relatives of Nugent, Williams-Davis, Darryl Williams, and others in the organization. In 1987, the group began selling cocaine, which it obtained mostly from connections made by Williams-Davis and Nugent in New York (a total of about 500 kilograms) and in California (about 150 kilograms). The organization would shift configuration slightly as various members (including Nugent and Darryl Williams) were arrested and occasionally did time for drug offenses, but the basic structure--a classic chain conspiracy--held.

The organization maintained, and the leaders and lieutenants supervised activities at, a number of locations in the R Street area where drugs were packaged for distribution (one such location was known as "the shop"), as well as several "stash houses" in which packaged drugs were stored to later resupply runners on the street. Search warrants executed from 1983 to 1991 at these locations, many of which were the residences of relatives and friends of members of the R Street Crew, disclosed extensive evidence of drug activity, including large quantities of marijuana, PCP, and cocaine, guns and ammunition, and packaging materials and paraphernalia.

The R Street Crew's activities included bloody and sometimes deadly clashes with rival drug-peddling gangs and others over control of the neighborhood: Alton Clea, a member of a rival gang, was shot and killed, while another member of the Clea group was shot and wounded; Thomas stabbed a rival dealer in the back; a rival drug dealer was shot the day after a dispute with Thomas; members of the organization "shot up" an auto-body repair shop owned by rival gang members, killing one person and wounding others; Board shot a rival gang member from a car in which Donnell Williams was also riding; Board, accompanied by Donnell Williams, attempted to kill another rival gang member; upon discovering cash missing from a room, Board and another member of the organization pointed guns at other members' heads and forced each member to return singly to the room to return the money; and Donnell Williams and others staged an armed robbery of two women prepared to purchase five kilograms of cocaine. Guns were thus a constant in the organization--among other things, in 1987, a senior member of the Crew attempted to buy guns from an undercover agent of the Bureau of Alcohol, Tobacco, and Firearms, and Board was involved in supplying the organization with guns. The R Street Crew was, not surprisingly, also a target of violence.

Each of the appellants was heavily involved in the gang's drug distribution activities. Thomas was originally one of many runners selling for the organization on a daily basis and was arrested in 1988 for attempted distribution of PCP. By 1988 or 1989 Thomas had become involved in managing runners, and, as noted above, was also involved in the R Street Crew's use of violence against rival distributors. Board began his involvement with the organization as a runner, but soon was managing runners, and packaging drugs for sale. Board was arrested for possession with intent to distribute cocaine and PCP in 1985 and 1986, and in 1990 and 1991, a government informant made several tape-recorded drug purchases and one gun purchase from Board. Board was actively involved in the group's use of violence to control the R Street neighborhood.

Donnell Williams was eleven when the organization first began distributing drugs in 1983, and was fifteen when he was first arrested for selling drugs in 1987. He was arrested four times between May 1988 and March 1990 for selling drugs, and participated in a staged armed robbery and several drive-by shootings which targeted rival gang members. Donnell Williams turned eighteen on December 21, 1989. Andre Williams (the younger brother of Darryl Williams and a cousin of Williams-Davis) was fifteen when he was first arrested in 1984 for selling drugs in the Lincoln Road-R Street area. During 1985 and 1986, Andre Williams continued to sell drugs, was involved in bringing drugs to the stash houses, and supplied drugs to runners. In 1988, Andre Williams was involved in mixing marijuana and PCP, and continued to sell and manage runners. Andre Williams turned eighteen on May 15, 1987. Perkins was selling drugs in the Lincoln Road-R Street area by 1984. Perkins continued to sell marijuana and PCP for the organization until 1986; in 1987, he branched out on his own and the organization became a source from which he purchased large quantities of drugs, which he then resold through his own runners.

The demise of the R Street Crew began in 1990 after a member of the gang robbed a New York go-between of his cocaine, prompting the go-between (caught between the R Street Crew and his Colombian suppliers) to turn FBI informant. See Williams-Davis, 90 F.3d at 494. The government was thereby able to tape and present to the jury telephone calls between the informant and leaders of the organization.

B. Replacement of Trial Judge and Jury Verdict

Shortly after the close of the government's case, Judge Revercomb became too ill to continue, and Judge Hogan was assigned to continue the case pursuant to FED. R.CRIM. P. 25(a). To familiarize himself with the case, Judge Hogan had a lengthy telephone conversation with Judge Revercomb; was briefed by Judge Revercomb's law clerk; read all 44 volumes of the trial transcript; and reviewed all pre-trial and trial motions and motions rulings, some of the physical evidence, Judge Revercomb's chamber notes, and some transcripts from the trial in Williams-Davis. Appellant Board objected, arguing that Judge Hogan should have read all of the transcripts from the first trial as background material and, even if he were to do so, Judge Hogan still would not have been in a position to judge the demeanor of the witnesses. Taking the objection on behalf of all defendants, Judge Hogan denied it, stating that his review of the materials satisfied Rule 25(a).

On February 11, 1993, the jury returned its verdicts. The jury convicted each appellant of conspiracy to distribute and possess with intent to distribute various drugs (the drug conspiracy), 21 U.S.C. §§ 841, 846, and of conspiracy to participate in a racketeer influenced corrupt organization (the RICO conspiracy), 18 U.S.C. § 1962(d). The jury found Board guilty of a substantive RICO violation, 18 U.S.C. § 1962(c), but acquitted the other appellants on this charge.

The jury also found Board guilty of six counts of distribution or possession with intent to distribute drugs, 21 U.S.C. §§ 841(a)(1), (b)(1); four counts of use of a communication...

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