U.S. v. Washington

• Court: U.S. Court of Appeals — Eighth Circuit
• Writing for the Court: John R. Gibson
• Citation: U.S. v. Washington, 318 F.3d 845 (8th Cir. 2003)
• Decision Date: 31 January 2003
• Docket Number: No. 01-2351.,No. 00-3942.,00-3942.,01-2351.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Earnest WASHINGTON, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Wendell E. Fortenberry, Defendant-Appellant.

318 F.3d 845

UNITED STATES of America, Plaintiff-Appellee, v. Earnest WASHINGTON, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Wendell E. Fortenberry, Defendant-Appellant.

No. 00-3942.

No. 01-2351.

United States Court of Appeals, Eighth Circuit.

Submitted: April 18, 2002.

Filed: January 31, 2003.

Rehearing and Rehearing En Banc Denied: March 25, 2003.

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Howard A. Shalowitz, argued, St. Louis, MO, for appellant Washington.

Christopher E. McGraugh, argued, St. Louis, MO, for appellant Fortenberry.

Dean R. Hoag, Asst. U.S. Atty., argued, St. Louis, MO, for appellee.

Before BOWMAN, LAY, and JOHN R. GIBSON, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Appellants Earnest Washington and Wendell Fortenberry were convicted in the district court¹ after a seven-day jury trial. Washington was convicted of two counts involving conspiracy to distribute heroin under 21 U.S.C. § 846 and conspiracy to commit murder for hire under 18 U.S.C. § 1958(a). Fortenberry was convicted of three counts, including conspiracy to distribute heroin, conspiracy to commit murder for hire, and murder for hire. They bring separate appeals which we have consolidated. We first address the challenge to the sufficiency of the evidence and then consider individual arguments by Washington and Fortenberry. We affirm both convictions and sentences.

We state the facts in the light most favorable to the jury's verdict. On the morning of May 6, 1998, the St. Louis police responded to a 911 phone call at the 4900 block of Geraldine, where they discovered the dead bodies of Gerondrick Jackson and Anthony Smith in the back-seat and trunk of a 1998 Ford Contour. After retrieving evidence from the car, the police went to the house at 5071 Durant, where gunshots had been reported earlier in the morning. Once inside the house, police technician Michael Priest collected five bullets from the scene, a Tommy Hilfiger baseball cap from the yard, a black leather coat, a .9 mm handgun, blood swabs from inside the residence, beer cans, and a torn counterfeit $100.00 bill. Fingerprints obtained from the beer cans at 5071 Durant were found to match those of Wendell Fortenberry. Ballistics expert Frank Stubits stated that two of the bullets recovered from the victims' bodies and one bullet recovered at the Durant residence were fired from the same nine millimeter gun. Stubits also testified that other bullets recovered from the victims and the house indicated that two additional weapons had been used.

Over a year later, the police received information linking Arnold Young, Tom Manley, Wendell Fortenberry, and Earnest Washington to the murders of Jackson and Smith. In April 1999, Special Agent Tom Fisher of the Drug Enforcement Administration (DEA) stopped two men on a routine drug interdiction at Lambert airport in St. Louis. These men were each carrying a quantity of heroin in excess of one-half kilogram and subsequently cooperated with the DEA investigation. One of these men acknowledged that he sold drugs for Arnold Young's Los Angeles drug organization and described the details of the enterprise. He explained that for some time, Young had been selling heroin to both Anthony Smith and Tom Manley for distribution in St. Louis, Missouri. This informant also told agents that in the course of these transactions, Smith had stolen $30,000.00 worth of heroin from Young. Because of this unpaid debt, Young had discussed with Manley the possibility of killing Smith and making it look as if a rival drug dealer had been responsible. Manley then contacted Wendell Fortenberry and Earnest Washington who agreed to carry out the murder if Young was willing to pay them five ounces of heroin. Manley called Young, who agreed to the price. Manley then told Fortenberry and Washington that Young has assented to the plan.

Manley testified that on May 6, 1998, the morning of the murders, he was paged by Fortenberry who told him that Anthony Smith had been "taken care of." He told Fortenberry that he would get back to him about payment. Manley left his brother's house and contacted Young by phone and let him know that Smith had been killed. Manley testified that Fortenberry paged him again to come over to a house on Palm Avenue. Manley said that he met Fortenberry and gave him two and one-half ounces of heroin at the Palm address. According to Manley, Fortenberry told him that he had shot Smith, Washington had shot Gerondrick Jackson, and Jackson was shot because he "was in the wrong place at the wrong time." Manley then went home and contacted Washington, whom he gave two and one-half ounces of heroin. Arnold Young later flew from Los Angeles to St. Louis and reimbursed Manley for this heroin.

On September 30, 1999, Young, Fortenberry, and Washington were charged in a two-count indictment for murder for hire and conspiracy to commit murder for hire in violation of 18 U.S.C. § 1958(a) (2000).² A joint jury trial in May 2000 resulted in a hung jury, and the district court declared a mistrial. The government then filed a second superseding indictment on June 15, 2000, charging Young, Fortenberry, and Washington in a three count indictment, adding the count of conspiracy to distribute heroin in violation of 21 U.S.C. § 846 (2000). After a seven-day trial, the jury returned a verdict of guilty for Fortenberry on all three counts. The jury returned a verdict of not guilty for Washington on the murder for hire count, but found him guilty of conspiracy to commit murder for hire and conspiracy to distribute heroin. Fortenberry and Washington were each sentenced by the district court to a term of life imprisonment.³

On appeal, Washington claims that there was insufficient evidence to support his convictions for conspiracy to distribute heroin and conspiracy to commit murder for hire. In addition, Fortenberry argues that their rights under the Sixth Amendment were violated at trial, and Washington claims several trial errors by the district judge, including the admission of prejudicial evidence. Finally, Fortenberry challenges his sentence, claiming that the district court incorrectly applied an upward adjustment under Sentencing Guideline § 3C1.1 for obstruction of justice.

I.

Washington argues that the evidence presented by the government was insufficient to convict him of conspiracy to distribute heroin and conspiracy to commit murder for hire.⁴ We review the sufficiency of the evidence de novo, viewing evidence in the light most favorable to the government, resolving conflicts in the government's favor, and accepting all reasonable inferences that support the verdict. United States v. Grimaldo, 214 F.3d 967, 975 (8th Cir.2000) (citations omitted). We may reverse only if no reasonable jury could have found the defendant guilty beyond a reasonable doubt. United States v. Calderin-Rodriguez, 244 F.3d 977, 983 (8th Cir.2001).

In order to convict Washington of conspiracy to distribute heroin, the government had to prove beyond a reasonable doubt that (1) a conspiracy with an illegal purpose existed, (2) Washington knew about the conspiracy, and (3) he knowingly became part of the conspiracy. United States v. Ruiz-Estrada, 312 F.3d 398, 402 (8th Cir.2002). To prove the existence of a conspiracy, the government may provide information regarding how long Washington, Fortenberry, and Manley were associated with each other, their established methods of payment, whether or not their transactions were standardized, and their demonstrated level of mutual trust. United States v. Clay, 37 F.3d 338, 341 (7th Cir.1994). No one factor is dispositive, but "[i]f enough point in the direction of a concrete, interlocked interest beyond the consummation of the individual buy-sell deals themselves, we will not disturb the conclusion reached by the finder of fact that at some point the association blossomed into a cooperative venture." Id. Having put forth testimony that a conspiracy existed, the government need only provide evidence "establishing beyond a reasonable doubt a connection of a defendant with a conspiracy." United States v. DeLuna, 763 F.2d 897, 924 (8th Cir.1985). Even if this connection is "slight," it is "sufficient to convict him of knowing participation in the conspiracy." Id.

Washington argues that the government was unable to show that a drug conspiracy existed or that he knowingly became part of a conspiracy. However, the government presented several witnesses who provided detailed information about purchases and sales of heroin by Washington in association with Fortenberry and Manley. Cheryl Moore, the mother of Washington's girlfriend, testified that she had purchased heroin from Fortenberry and Washington on three or four occasions, and that Fortenberry told her that Washington got his heroin from Tom Manley. Tom Manley testified that he met with Washington and Fortenberry at Fortenberry's house in the fall of 1997 to discuss selling small amounts of heroin to them. He began by selling them a few grams. Their purchases gradually increased to seven grams of heroin, which they were buying at least once a week. Manley would contact them by mobile phone and meet with them at Fortenberry's house to complete the transactions. Manley testified that he went to Fortenberry's house and observed Fortenberry and Washington preparing heroin for distribution, cutting it with a razor and tying it up in plastic. Manley stated that after the police raided Fortenberry's house in December of 1997, Manley dealt solely with Washington, providing him with small packages of heroin periodically until May of 1998. This testimony was sufficient for a reasonable jury to convict Washington of conspiracy to distribute heroin.

Washington also claims that there was insufficient evidence to convict him of conspiracy to commit murder for hire under 18 U.S.C. § 1958(a). Washington...