U.S. v. Waters
| Decision Date | 05 November 1992 |
| Docket Number | No. 91-6450,91-6450 |
| Citation | 978 F.2d 1260 |
| Parties | NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Charles C. WATERS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before KENNEDY and MILBURN, Circuit Judges, and POTTER, Senior District Judge. *
Defendant Charles C. Waters appeals his jury conviction of nine counts of using a communication facility in facilitating an attempt to possess marijuana with intent to distribute in violation of 21 U.S.C. § 843(b), one count of unlawful travel in interstate commerce to facilitate unlawful activity in violation of 18 U.S.C. § 1952(a)(3), and one count of attempt to possess marijuana with intent to distribute in violation of 18 U.S.C. § 846. On appeal the issues are (1) whether the district court's denial of defendant's motion for a continuance was an abuse of discretion which interfered with his Sixth Amendment right to effective representation of counsel, (2) whether the district court erred in denying defendant's motion for a judgment of acquittal, and (3) whether defendant's trial counsel was ineffective. For the reasons that follow, we affirm.
In December 1990, Drug Enforcement Administration ("DEA") Officer Michael Bogenschutz was the case agent in an investigation which resulted in the arrest of Miguel and Carmen Torres following their delivery of three kilograms of cocaine to the Northern Kentucky area. Miguel and Carmen Torres decided to cooperate with the DEA. At their debriefing, Miguel Torres told Bogenschutz of an individual named "Chuck," who had purchased or brokered large quantities of marijuana and cocaine from Miguel in the past. "Chuck" was later identified as defendant Charles C. Waters.
As a result of the debriefing and subsequent investigation, Carmen Torres, who had returned to Miami, Florida, received a telephone call from defendant Waters on January 16, 1991. The telephone conversation was monitored and tape recorded by Bogenschutz at the DEA offices in Cincinnati, Ohio, by means of three-way calling. During their conversation, Carmen Torres told defendant that Miguel Torres was in Kentucky and needed to talk to him. Defendant indicated that he would be able to get the money together to buy marijuana from Miguel, and he gave Carmen a beeper number so that she could contact the people who might buy the marijuana. Carmen also had additional telephone conversations with defendant.
Additional telephone conversations took place between Miguel, who was located in the Kenton County, Kentucky jail; the Cincinnati DEA office, and defendant. All of these telephone conversations were monitored and tape recorded by Agent Bogenschutz or other members of the DEA task force. These telephone conversations occurred on January 17, 28, 30, 31, and February 1 and 2, 1991. On these same dates, defendant was calling Special Agent Timothy Edmondson of the United States Customs Service in Pensacola, Florida. Agent Edmondson told defendant on a twice-daily basis that he was not to communicate with Miguel Torres or anyone on behalf of Miguel Torres. However, defendant did not tell Agent Edmondson that he was talking to Miguel Torres or that he planned to meet with him in Northern Kentucky. When defendant first met with Agent Edmondson, on or about January 17, 1991, defendant told Agent Edmondson that Miguel Torres told him that he had 300 pounds of marijuana in Kentucky. At that time, Agent Edmondson explained to defendant at great length that if he were approved to cooperate with the United States Customs Service, everything would have to be recorded and conducted under Agent Edmondson's supervision.
During the telephone conversations between defendant and Miguel Torres, which were recorded by Agent Bogenschutz, Miguel discussed the sale of six hundred pounds of marijuana to defendant. Defendant eventually agreed to travel to the Cincinnati/Northern Kentucky area to purchase three hundred pounds of marijuana from Miguel for $800.00 per pound. Defendant tried to convince Miguel to meet him in Chicago, Massachusetts, Atlanta, or Miami, but Miguel refused to do so and insisted that defendant come to him. Defendant told Miguel that due to such an arrangement, he would be unable to pay for the marijuana up front, but would have to take it on credit, deliver it to his purchasers, and return with the payment. This conformed to the past dealings between defendant and Miguel Torres.
Defendant arranged to arrive in Northern Kentucky on February 4, 1991. That morning, Miguel Torres received two telephone calls from an individual identifying himself as Bruce Berger. Defendant had told Miguel that Berger was an associate of his in Chicago who could help purchase the marijuana. The calls from Berger came as a surprise to both Miguel and Agent Bogenschutz, who monitored the calls, since Miguel and Berger had not spoken previously. Furthermore, Miguel had not given the telephone number of the DEA undercover line to Berger, but he had given it to defendant and an individual named "Bo" in Washington, D.C. Miguel had also given defendant Agent Bogenschutz's pager or "beeper" number, but he had not provided this number to anyone else. Agent Edmondson also had the number for Agent Bogenschutz's "beeper", but he had not provided it to Berger.
During their telephone conversations, Berger referred to defendant's trip to Northern Kentucky and told Miguel that if the marijuana could be transported to him in Chicago, he would take the entire amount. Berger also told Miguel that defendant had asked him to call Miguel, and he assured Miguel that he could pay for nearly all of the marijuana on delivery. Berger also told Miguel that if defendant approved the samples of marijuana, defendant would take the marijuana to Chicago and deliver it to Berger in exchange for cash. Berger stated that he had spoken to defendant approximately twenty minutes earlier and that defendant was en route to Northern Kentucky. Berger asked how much marijuana was available; he was told 300 pounds. Berger then asked about the price, and Miguel told him the price was $1,000.00 per pound. Berger wanted to know if the marijuana smelled like ammonia, which was an indicator of the grade of the marijuana. Miguel told Berger that the marijuana was "sticky, tight on the bud, not too dry, some of it is brown, some of it is green", which indicated a superior grade of marijuana. Berger stated that he could get rid of the entire 300 pounds of marijuana in Chicago in two or three days.
On February 4, 1991, Agent Bogenschutz rented two rooms at the Holiday Inn in Covington, Kentucky, to facilitate the transaction between defendant and Miguel. One of the rooms was to be used for the meeting between defendant and Miguel, and the other was used for surveillance. Carmen Torres also flew from Miami to the Cincinnati/Northern Kentucky International Airport on February 4, 1991. Transmitters were placed on Carmen and Officer Sue Schuerman, who was acting in an undercover capacity. A video camera was also placed in the hotel room to record the discussions and activities once the parties arrived.
Schuerman and Carmen picked up defendant at the airport and took him by automobile to the hotel. When they arrived at the hotel, they went upstairs and met with Miguel in the room arranged for their meeting. After defendant entered the hotel room, Agent Bogenschutz monitored the conversations. Bogenschutz had never met defendant, but he testified that based upon the various recorded telephone conversations, he was confident that the individual who arrived at the airport and entered the hotel room on February 4, 1991, was the person who had spoken to Miguel Torres in the recorded telephone conversations. At the hotel room, defendant talked with Carmen, Miguel, and Officer Schuerman about past and future drug dealings as well as finalizing the arrangements for the transaction under discussion.
The agreement between defendant and Miguel was that defendant would be shown samples of the marijuana, and if defendant approved the samples, he would contact his purchasers and then make arrangements with Miguel to receive the entire three hundred pounds of marijuana. Defendant stated that he did not have the money for the purchase, but would make arrangements to obtain it if he approved the samples.
Carmen and Agent Schuerman left the room to pick up some food, and Agent Schuerman also picked up the marijuana samples. A short time later, they returned with the food and marijuana. Defendant asked to see the samples of the marijuana, and he was given two baggies containing two different grades of marijuana, viz., sinsimilla, and a lesser commercial grade. Defendant was told that 200 pounds were sinsimilla and 100 pounds was the commercial grade. Following his inspection, defendant indicated that he was happy with the quality of the marijuana and indicated that the marijuana was going to Massachusetts. He then stated that he was going to leave the room to call his purchasers.
Defendant left the hotel room and was observed by undercover officers near a bank of public telephones in the lobby of the Holiday Inn. Defendant returned to the hotel room and stated that he had called his girl friend, and she would contact the purchasers. Defendant also claimed that he had paged one of his purchasers who would have to make an excuse to get away from his wife in order to return his telephone call. After approximately twenty minutes, defendant indicated that he was hungry again and wanted to go downstairs to the hotel restaurant to eat. When Miguel asked what should be done if someone called while he was gone, defendant said to tell them to call back in a few minutes. Def...
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