U.S. v. Ward

• Decision Date: 08 November 1994
• Docket Number: No. 93-2258,93-2258
• Citation: 37 F.3d 243
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Malik WARD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 243

37 F.3d 243

UNITED STATES of America, Plaintiff-Appellee, v. Malik WARD, Defendant-Appellant.

No. 93-2258.

United States Court of Appeals Sixth Circuit.

Argued Aug. 5, 1994.

Decided Sept. 19, 1994.

Rehearing and Rehearing En Banc

Denied Nov. 8, 1994.

Stephen J. Murphy, III (argued and briefed), Office of the U.S. Atty., Detroit, MI, for plaintiff-appellee.

Margaret Raben (argued and briefed), Dise & Gurewitz, Detroit, MI, for defendant-appellant.

Malik Ward, pro se.

Before LIVELY, MARTIN, and SUHRHEINRICH, Circuit Judges.

LIVELY, Circuit Judge.

Malik Ward appeals his conviction and thirty-year prison sentence for multiple violations of narcotics laws. The indictment charged ten people with participating in an extensive drug operation in Detroit, but only Ward and Cherisse Thomas, his "girlfriend," pled not guilty and went to trial. Following a three-week trial, the jury acquitted Cherisse Thomas on all counts and found Ward guilty on eight counts while acquitting him on three.

Ward raises four issues on appeal. First, he contends the district court erred by denying his motion to suppress evidence seized during a search of Ward's apartment. Ward argues that the affidavit of a government agent, upon which a search warrant for the apartment was issued, failed to establish probable cause for a search and was based on "stale" information.

Second, Ward seeks reversal for the prosecutor's alleged violation of his Fifth Amendment right not to be compelled to testify against himself. He argues that a government witness improperly testified concerning his failure to respond to an officer's questions during a search of a suspected drug house and that the prosecutor improperly commented on his failure to testify at trial.

Third, Ward argues that the evidence was insufficient to support his conviction for aiding and abetting the distribution of cocaine on July 31, 1992.

Finally, Ward contends that the evidence was insufficient to support his conviction for engaging in a continuing criminal enterprise (the CCE charge).

We find no merit in Ward's first three arguments and have determined that they require only the application of settled legal principles to the facts. Thus, we are issuing an unpublished appendix with this opinion affirming the district court's rulings on those issues.

I.

The majority of the evidence in this case came from the testimony of a defendant, Sadie Ramnares, who pled guilty to several charges.

According to Ramnares, she met defendant Ronald Hicks in 1989 and subsequently agreed to help him sell drugs. Hicks lived on Braile Street but sold drugs from a house on Blackstone Avenue, which he rented with Malik Ward. Ward lived at Hidden Pines Apartments on Telegraph Avenue, but usually was present at the Blackstone house when Ramnares accompanied Hicks there. Ward's cousins, Mark and Edroy Dickens, also sold drugs at the Blackstone house.

Ramnares testified that Ward regularly "fronted" cocaine to Hicks. In other words, Ward would give cocaine to Hicks, but would allow Hicks to delay payment for the drugs until Hicks had sold them. Ramnares testified that on several occasions, she accompanied Hicks to Ward's apartment on Telegraph to purchase drugs. Ramnares stated that Hicks had to account to Ward for the proceeds from his drug sales and that Hicks was afraid of Ward.

There was also evidence of specific transactions involving Ward.

On September 18, 1991, a defendant, Paris Strozier, purchased 12 ounces of cocaine from Ward at the Blackstone house; Strozier immediately resold the drugs to Michael Farley, an undercover officer. According to Farley's testimony, the drugs were delivered to the Blackstone location by two black males in a 1991 gray Volvo. Surveillance officers followed the Volvo from the scene, and the car subsequently stopped at Ronald Hicks's house on Braile. The officers secured the scene and detained everyone present, including Malik Ward. When the officers obtained a warrant and searched the premises, they found Ward in possession of the keys to the Volvo.

In 1992, Agent Michael Yott of the Bureau of Alcohol, Tobacco and Firearms (ATF) began investigating a rumored drug conspiracy. Through an informant, known as "ATF-1," and later on his own, Yott arranged several undercover purchases from Hicks. According to ATF-1, the cocaine purchased from Hicks was obtained from a man called "Malik," who lived on Telegraph Avenue--the apartment building where Malik Ward lived. During the week of July 20, 1992, ATF-1 arranged a drug purchase from Ronald Hicks. Hicks took ATF-1 to the Hidden Pines apartment building--Ward's apartment building--to pick up the drugs from "Malik."

On July 31, 1992, Yott arranged to purchase some cocaine from Hicks. Yott met Hicks at the prescribed location. After Hicks arrived in one car, Ward appeared driving Hicks's car. After Yott had given Hicks the money for the cocaine, Hicks left Yott's car and briefly got into the car with Ward. Although Ward and Hicks left the scene separately, surveillance officers observed them meeting shortly thereafter at a service station near the transaction site. On August 18, 1992, Yott applied for a warrant to search Ward's and Thomas's jointly-rented residence at Hidden Pines Apartments on Telegraph Avenue. During that search, drugs, firearms and other drug paraphernalia were recovered.

II.

Ward contends that the government failed to prove all the elements required for conviction as a participant in a continuing criminal enterprise. We begin by noting that Hicks did not make a motion for acquittal at the close of the government's case or at the conclusion of all the evidence. Fed.R.Crim.P. 29. Failure to make or renew a motion for acquittal constitutes a waiver of the right to contest sufficiency of the evidence on appeal in the absence of a "manifest miscarriage of justice." United States v. Morrow, 977 F.2d 222, 230 (6th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 2969, 125 L.Ed.2d 668 (1993).

A.

The government must prove five statutory elements under 21 U.S.C. Sec. 848 to sustain a CCE conviction. These elements are:

1) a felony violation of a federal narcotics law;

2) as part of a "continuing series of violations;"

3) "in concert with five or more persons;"

4) for whom defendant is an organizer or supervisor; and

5) from which he derives substantial income.

United States v. English, 925 F.2d 154 (6th Cir.) (quoting 21 U.S.C. Sec. 848), cert. denied, 501 U.S. 1211, 111 S.Ct. 2812, 115 L.Ed.2d 984 (1991). Ward contends that the government did not present sufficient evidence that he was an organizer or supervisor of five persons.

The relationship requirement under Sec. 848 is flexible. The defendant need not have the same type of relationship with each individual, and the relationships need not exist at the same time. United States v. Davis, 809 F.2d 1194, 1204 (6th Cir.) (citing United States v. Sinito, 723 F.2d 1250, 1261 (6th Cir.1983), cert. denied, 469 U.S. 817, 105 S.Ct. 86, 83 L.Ed.2d 33 (1984)), cert. denied, 483 U.S. 1007, 107 S.Ct. 3234, 97 L.Ed.2d 740 (1987). However, as this court noted in English, although the relationship between an organizer and his subordinates may be "somewhat loose ... simply purchasing cocaine from the 'organizer' standing alone is not enough to satisfy the relationship requirement." 925 F.2d at 157. See also United States v. Jenkins, 904 F.2d 549, 553 (10th Cir.), (buyer-seller relationship does not establish organizer or supervisor status), cert. denied, 498 U.S. 962, 111 S.Ct. 395, 112 L.Ed.2d 404 (1990).

"[T]he terms organizer, supervisor, or manager are to be given their ordinary meaning." United States v. Moya-Gomez, 860 F.2d 706, 746 (7th Cir.1988) (citing United States v. Wilkinson, 754 F.2d 1427, 1431 (2d Cir.), cert. denied, 472 U.S. 1019, 105 S.Ct. 3482, 87 L.Ed.2d 617 (1985)), cert. denied, 492 U.S. 908, 109 S.Ct. 3221, 106 L.Ed.2d 571 (1989). The defendant may satisfy this requirement "by setting the prices of the drugs [and] ... by forcing his customers to pay promptly...." English, 925 F.2d at 157 (citing United States v. Jones, 801 F.2d 304, 308-09 (8th Cir.1986)). Furthermore, a person can be "found to be under the defendant's organization or supervision because she knew about the drug operation, took orders directly from the defendant and helped in the drug business." Id. A broker or courier under the defendant's supervision, someone who stores drugs for the defendant, or one who collects or launders drug proceeds is also within the ambit of the statute. United States v. Phibbs, 999 F.2d 1053, 1082-85 (6th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1070, 127 L.Ed.2d 389 (1994); United States v. Chalkias, 971 F.2d 1206, 1214 (6th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 351, 121 L.Ed.2d 265 (1992); United States v. Jenkins, 904 F.2d 549, 554 (10th Cir.), cert. denied, 498 U.S. 962, 111 S.Ct. 395, 112 L.Ed.2d 404 (1990).

B.

The prosecution theorized that Ward was an upper-level member of a multi-level drug operation. As a result of his position, the government argued, Ward was in command of at least five others. Since Ward's alleged relationship with the supervisees varied, however, it is necessary to examine each alliance separately.

(1) Ronald Hicks

There is extensive evidence of a relationship between Ward and Hicks. Ramnares testified that Ward would "front" cocaine to Hicks. Ramnares testified that Ward and Hicks argued whenever Hicks was "short," and that Ramnares and Hicks were afraid of Ward. Citing this testimony, the government points out that the use of force or coercion to collect drug proceeds is strong evidence of control. United States v. Jones, 801 F.2d 304, 308-09 (8th Cir.1986). However, that aspect of Jones is easily distinguished from the present case. In Jones, there was evidence that the defendant had threatened his "customers" and had brutally beaten one man who was late with his payment. In ...