U.S. v. Ware

• Decision Date: 03 December 1998
• Docket Number: No. 97-5771,97-5771
• Citation: 161 F.3d 414
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert WARE, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 414

161 F.3d 414

UNITED STATES of America, Plaintiff-Appellee, v. Robert WARE, Jr., Defendant-Appellant.

No. 97-5771.

United States Court of Appeals, Sixth Circuit.

Argued Sept. 22, 1998.

Decided Dec. 3, 1998.

David L. Cooper (argued and briefed), Cannon, Cannon & Cooper, Goodlettsville, Tennessee, for Defendant-Appellant.

Michael L. Roden (argued and briefed), Office of U.S. Attorney, Nashville, Tennessee, for Plaintiff-Appellee.

Before: WELLFORD, NORRIS, and BATCHELDER, Circuit Judges.

BATCHELDER, J., delivered the opinion of the court, in which ALAN E. NORRIS and WELLFORD, JJ., joined, with WELLFORD, J. (pp. 425-427), also delivering a separate concurring opinion.

OPINION

BATCHELDER, Circuit Judge.

Defendant Robert Ware, Jr. appeals his conviction for conspiracy to distribute and possession with intent to distribute cocaine and conspiracy to distribute and possession with intent to distribute cocaine base in violation of 21 U.S.C. § 846, and unlawful distribution and possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). For the following reasons, we AFFIRM Ware's conviction.

I. Background

In April 1994, officers of the Nashville Metro Police Department followed up an anonymous complaint that cocaine was being sold from a house at 211 Treutland Street in Nashville. The house, which was surrounded by a chain link fence, had barred windows and metal security doors, and was guarded by a rottweiler and a pit bull as well as lookouts who patrolled the front and back of the house. A confidential informant for the Metro Police Department made a series of controlled purchases through the back metal security door of the house; although the informant never entered the house, he was able to see inside, and, on various occasions, observed a firearm on the kitchen table, a large amount of a substance appearing to be cocaine, and five to ten people inside the house. Police surveillance identified one of the people inside the house as Robert Ware, the defendant in this case.

After field testing indicated that the informant's purchases were cocaine, the officers obtained a search warrant, which they executed on April 15, 1994. The officers seized crack cocaine, various drug paraphernalia, numerous guns, ammunition, a silencer and a bullet proof vest. Robert Ware was among the individuals found on the premises and arrested. Although state charges were filed against him and the other occupants of the house, Ware was not detained.

On July 14, 1994, a special agent with the United States Drug Enforcement Agency, assisted by a Nashville Metro Police task force officer, arrested Shaketa Phillips and Ruchelle Curry at the Nashville International Airport, having received information that two individuals matching Phillips's and Curry's descriptions would be arriving at the airport with a quantity of cocaine. Phillips and Curry consented to a search, and inside a bag carried by Phillips, the officers found four packages of white powder, later determined to be approximately four kilograms of cocaine. From the DEA's airport office, Phillips called a phone number which police found was listed to the defendant's girlfriend at 214 Treutland Street. Following their arrest, Phillips and Curry began cooperating with the government and identified Ware as the ringleader of a cocaine importation and distribution operation working first out of the fortress at 211 Treutland and then, after the April 1994 raid, out of 214 Treutland.

Through further investigation, including an undercover operation targeting a woman named Jacqueline Woods, the officers were able to corroborate Phillips's and Curry's information about Robert Ware's involvement in the cocaine operation. The officers discovered, for example, that Ware had sent various individuals to California on numerous separate occasions to purchase cocaine for him from an individual named Michael Sims. Woods, en route to Los Angeles to purchase drugs for Ware with $54,000 and a man named Norman Pinkston, was apprehended at the Atlanta airport on July 6, 1994. She was arrested for giving a false name, whereupon she called Ware in Nashville, and Ware, Shaketa Phillips and a lawyer named Dennis Hughes traveled to Atlanta to post her bail. Michael Perry, another courier, was arrested at the Nashville airport in August 1994 carrying $47,000 that was to be used to purchase cocaine for Ware.

On January 17, 1996, a federal grand jury returned a seven count indictment against Robert Ware, Jr., Michael Sims, Norman Pinkston, and Michael Perry charging them with conspiracy to distribute cocaine and cocaine base. The federal grand jury returned a superseding indictment which added Jacqueline Woods as a defendant to four of the seven counts.

The district court conducted an evidentiary hearing on March 3, 1997 on Ware's motion to suppress evidence seized on April 15, 1994, from 211 Treutland Street. The court denied the motion and the case proceeded to a jury trial. At trial, both Shaketa Phillips and Ruchelle Curry testified. Each acknowledged that she had been indicted by a federal grand jury following her arrest in July 1994 and had entered into a plea agreement with the government; each acknowledged that under her plea agreement one of the two counts of the indictment was dismissed and she received leniency in sentencing in return for her pleading guilty to the remaining count of the indictment and testifying at Ware's trial. Phillips testified that Ware was known by the street name "Low," that while living at 211 Treutland Street, she had witnessed the selling of cocaine from that address, and that Low was in charge of the transactions from 211 Treutland. She further admitted to selling cocaine and to traveling to California at Ware's direction six times between March 1994 and July 1994 to purchase cocaine. She was accompanied on those trips--which she recorded in her date book--by numerous individuals, including Ware in April, Jacqueline Woods, and Ruchelle Curry. Phillips recalled purchasing approximately one kilogram on her first trip, "two or three" kilograms on each of the next trips, about three kilograms on the fourth trip, and "two or three kilograms" on the fifth. On each trip, Ms. Phillips met with Michael Sims, known as Money, who took the money packed in Phillips's bag by Ware, and provided the cocaine which Phillips transported to Nashville, either taped on her body or concealed in carry-on luggage where she delivered it to Ware, who sold it, both as crack and in powder form, from 211 Treutland.

Hotel and phone records corroborated information supplied by Phillips about the California trips. Phillips further testified that Sims was arrested in Rutherford County, Tennessee, when visiting Nashville to meet with Ware, and that Phillips posted bond for him with Ware's money. Finally, Phillips testified about the trip to Atlanta with Ware and Dennis Hughes (then Ware's attorney) to post bond for Jacqueline Woods, including a discussion that took place en route between Hughes and Phillips, in which Hughes suggested a white family should be used to import the cocaine from California.

Jacqueline Woods and Norman Pinkston pled guilty to fewer than all of the counts against them, and at trial, testified that they had entered into plea agreements contingent upon their testimony against Ware. Woods testified that she had lived at 211 Treutland Street and had observed cocaine being sold from the house. She also described three trips to California to purchase cocaine for Ware from Sims and a trip with Ware to Arkansas to buy cocaine. Curry and Pinkston also testified to their roles as Ware's drug couriers and stated that Ware was known as Low.

During the course of the trial, the court dismissed one of the indictment's seven counts against Ware. The jury found Ware guilty on three of the remaining counts, and acquitted him on three counts. The district court sentenced the defendant to 30 years incarceration, five years of supervised release, and a special assessment. Defendant filed a timely notice of appeal from the judgment.

II. Discussion

A.

Defendant initially claimed on appeal that the district court erred in admitting into evidence, without a Rule 404(b) limiting instruction or jury charge, drugs, guns, money and paraphernalia recovered pursuant to a state search warrant; in allowing the introduction of crack cocaine seized in the search of 211 Treutland, when the officer who recovered the cocaine did not testify at trial; in admitting as a co-conspirator statement the hearsay testimony of Dennis Hughes; and in calculating the amount of cocaine, for purposes of the sentencing guidelines, based upon the testimony of Shaketa Phillips and Jacqueline Woods. Ware further claimed that the nighttime search of 211 Treutland Street executed by state police officers violated the Fourth Amendment to the United States Constitution and that the government failed to prove beyond a reasonable doubt the identity of the defendant.

Though the claims raised by the defendant were numerous, none was meritorious. For instance, Defendant filed a motion to suppress the evidence seized on April 15, 1994, from 211 Treutland Street, asserting that it should be excluded pursuant to Rule 404(b) of the Federal Rules of Evidence which provides

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident ...

FED. R. EVID. 404(b). According to the defendant, "the evidence from Treutland Street was uncharged criminal conduct which bears on the Defendant's character, which is what Rule 404(b) is designed to protect against." As the government correctly noted, however, the first two counts of the indictment charged the...