U.S. v. Thomas

• Decision Date: 02 July 1996
• Docket Number: Nos. 95-1612,95-2158,s. 95-1612
• Citation: 86 F.3d 647
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paris F. THOMAS and Harold L. Story, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 647

86 F.3d 647

UNITED STATES of America, Plaintiff-Appellee, v. Paris F. THOMAS and Harold L. Story, Defendants-Appellants.

Nos. 95-1612, 95-2158.

United States Court of Appeals Seventh Circuit.

Argued Jan. 12, 1996.

Decided May 31, 1996.

Rehearing Denied July 2, 1996.

Michael Jude Quinley (argued), Office of the United States Attorney, Criminal Division, Fairview Heights, IL, for Plaintiff-Appellee.

Greg Roosevelt (argued), Edwardsville, IL, for Defendant-Appellant in No. 95-1612.

Gerald C. Bender, Chicago, IL, Gregory A. Adamski (argued), Karen Conti, Catherine A. Connolly, Adamski & Conti, Chicago, IL, for Defendant-Appellant in No. 95-2158.

Before CUMMINGS, FLAUM, and DIANE P. WOOD, Circuit Judges.

FLAUM, Circuit Judge.

Defendants Paris Thomas and Harold Story were tried before a jury on a four-count superseding indictment, which charged them with: (1) conspiracy to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846; (2) use or carrying of firearms during the commission of a drug trafficking crime, in violation of 18 U.S.C. § 924(c); (3) continuing criminal enterprise ("CCE"), in violation of 21 U.S.C. § 848; and (4) distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The jury convicted both defendants on all four counts. Story was sentenced to life imprisonment, and Thomas received a total sentence of 420 months. The defendants appeal their convictions on various grounds and also appeal their sentences. We affirm in part, reverse in part, and remand for a new trial and resentencing.

I.

In late 1991, Defendant Thomas joined Edgar Bradford and Kevin Garnett in order to distribute crack cocaine to street dealers in Metropolis, Illinois. The three friends began this enterprise by pooling their resources to obtain crack and powder cocaine from an acquaintance of Thomas in Chicago, Illinois. The three converted the powder cocaine that they purchased into crack cocaine and distributed their wares to local crack dealers in Metropolis. Thomas was the "leader" of this profitable venture, for he had the connection to the cocaine supplier and could arrange for the powder cocaine to be converted into crack. In the spring of 1993, the group decided to expand their crack cocaine business by bringing Defendant Story into the fold. Story was able to procure greater quantities of cocaine than Thomas and therefore became the supplier, as well as the "leader," of the group. As Thomas had done before him, Story made regular trips to Chicago to buy crack and powder cocaine, which he then cooked into crack. Thomas and Garnett sometimes accompanied Story on his drug purchasing trips to Chicago. Story usually fronted the money for the drug purchases and then received a return on his investment once Thomas, Bradford, and Garnett had successfully distributed the crack to the local dealers. Story was assisted in his drug-distributing activities by his bodyguard, known as "Cheeseburger," and by his brother, known as "Cup," who often acted as a courier in drug and money exchanges between Story and Thomas. The defendants continued to purchase and distribute crack until their arrests in January of 1994. ¹

In the original conspiracy charge, Thomas, Story, Bradford, Garnett, and many of the street dealers who worked under them were named as defendants. Most of the other original defendants, including Bradford and Garnett, pled guilty and agreed to testify against Thomas and Story in exchange for favorable sentencing recommendations. At trial these admitted co-conspirators provided the jury with a detailed account of the inner workings of the alleged drug conspiracy. In addition, Bradford and Garnett testified that Story was a member of a street gang, specifically the Mafia Insanes of the Almighty Vice Lord Nation. Thomas, Garnett, and Bradford became involved with the gang by taking an oath of loyalty. ² Story later provided Thomas and Garnett with a written copy of the oath and principles of the gang, and Story and Thomas occasionally reminded Garnett to follow the principles. The oath of the Almighty Vice Lord Nation, which the government introduced into evidence, provides, in part, that "[n]or in the threat of death will I deny those brothers who stand beside me." The principles of the Mafia Insanes, which were also admitted into evidence, include a direction to "obey all commands without question fear or doubt." Trial testimony further revealed that Vice Lords were not supposed to testify against fellow Vice Lords. Many of the street dealers who worked under the defendants recognized that the defendants, along with Garnett and Bradford, were affiliated with the Mafia Insane Vice Lords. The district court admitted the preceding evidence despite defendants' motion in limine to exclude all evidence of their gang affiliation.

The government introduced significant evidence at trial showing that firearms were involved in the alleged drug conspiracy. Story possessed a .38 caliber handgun that he kept at home for protection. There was testimony that Thomas and Bradford possessed a .22 caliber pistol, which was obtained by Thomas in settlement of a customer's crack debt. They kept this pistol at Bradford's home in case someone tried to steal their drugs or money. Additionally, some of the street dealers testified that they possessed handguns for protection against other drug dealers. There was also testimony indicating an active employment of firearms by certain members of the drug-dealing enterprise. For example, Jerome Bray, one of the street dealers who pled guilty to the conspiracy charge, once brought a handgun with him to chase competing dealers away from the street corner where he was selling crack. ³ On another occasion, Bradford and other members of the drug conspiracy engaged in a shoot-out with a group of out-of-town crack dealers who were trying to sell in Metropolis. ⁴

The well-organized drug conspiracy began to collapse with the arrest of Kevin Garnett on December 28, 1993. Soon afterward Story accused Anthony Powell, a police informant, of getting Garnett "busted" and told Powell that if anyone else was busted "the matter will be taken care of." Story, Thomas, and a number of their alleged co-conspirators were arrested a couple of weeks later, but Story continued making threats. Jerome Bray testified that, while he and Story were in jail, Story threatened to kill him and others involved in the alleged conspiracy if they testified against Story. Story told Bray to pass this threat along to certain co-conspirators that were in jail.

The district court, in addition to admitting evidence of threats made by Story, admitted evidence of third party and anonymous threats on witnesses. The first witness at trial was Crystal Riley, a police informant and an admitted crack dealer, who testified that Cup Story told her that he would kill anyone who testified against his brother. On the day before she testified, an anonymous telephone caller threatened to kill her if she testified against Story. Later that day she found a bottle of lighter fluid on the front porch of her house, along with a note that read "We came for you. We'll be back. Bitch, die." Jennifer Hooper, Bradford's girlfriend and the mother of his child, testified that, prior to her grand jury testimony, an anonymous caller threatened to kill her and her child if Bradford testified. A few weeks before trial, an unidentified person pointed a gun at her head while she was sitting in her car at a stoplight. Yolanda Powell testified that her life was threatened by an unidentified man a couple of weeks before trial. The man told her that her brother, Anthony Powell, had gotten people into trouble and that he should not testify at trial. The defendants objected to the testimony regarding threats by Cup Story and unknown individuals, arguing that the threats were hearsay and that any probative value they had would be substantially outweighed by the danger of unfair prejudice. ⁵

II.

On appeal the defendants present three main grounds for reversing their convictions. First, they assert that the Supreme Court's recent decision in Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), mandates a reversal of their 18 U.S.C. § 924(c) convictions. Second, they argue that the district court abused its discretion in admitting evidence of their gang affiliation. Third, they maintain that the district court abused its discretion by admitting evidence of threats that they did not make. The defendants also briefly raise a double jeopardy claim and a number of issues with respect to their sentences.

The defendants argue that their convictions on count two of the superseding indictment, which charged them with both using and carrying a firearm during and in relation to the drug trafficking conspiracy, must be reversed as a result of the Supreme Court's recent decision in Bailey. Section 924(c)(1) punishes a defendant who, "during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm." 18 U.S.C. § 924(c)(1). The Court in Bailey held that "use" under § 924(c)(1) means an "active employment of the firearm." Id. at ----, 116 S.Ct. at 506. Such active employment "certainly includes brandishing, displaying, bartering, striking with, and most obviously, firing or attempting to fire, a firearm." Id. at ----, 116 S.Ct. at 508. The Court made it clear that the mere placement of a firearm to provide a sense of security or to embolden cannot constitute a "use." Id. To convict a defendant under § 924(c)(1) for using a firearm, the government is required to show more than the "inert presence" or "storage" of a firearm. Id. At the close of evidence, the district court, in accordance with our Circuit precedent at the time, instructed the jury that:

A firearm is used during and in relation to a drug-trafficking crime if the circumstances of the case show that the...