U.S. v. Wheaton

• Decision Date: 19 February 2008
• Docket Number: No. 06-4080.,06-4080.
• Citation: 517 F.3d 350
• Parties: UNITED STATES of America, Plaintiff—Appellee, v. Michael WHEATON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

517 F.3d 350

UNITED STATES of America, Plaintiff—Appellee, v. Michael WHEATON, Defendant-Appellant.

No. 06-4080.

United States Court of Appeals, Sixth Circuit.

Argued: January 29, 2008.

Decided and Filed: February 19, 2008.

ARGUED: Vicki L. Ward, Cleveland, Ohio, for Appellant. Samuel A. Yannucci, Assistant United States Attorney, Akron, Ohio, for Appellee.

ON BRIEF; Vicki L. Ward, Cleveland, Ohio, for Appellant. Samuel. A. Yannucci, Assistant United States Attorney, Akron, Ohio, for Appellee.

Before: GUY, GILMAN, and MCKEAGUE, Circuit Judges.

OPINION

RONALD LEE GILMAN, Circuit Judge.

Michael Wheaton was convicted by a jury on one count of conspiring to distribute more than five kilograms of cocaine and of possessing the drug with the intent to distribute. He filed a motion for a new trial, alleging that a juror's use of a laptop computer in the jury room to obtain extrinsic evidence had undermined the integrity of the verdict. The district court denied Wheaton's motion, concluding that the interests of justice did not require a new trial because the information acquired by the juror had no effect on the jury's deliberations. Wheaton renews this claim on appeal, and also raises a number of other alleged trial errors that were not included in his motion for a new trial.

At the sentencing hearing, the district court, pursuant to USSG § 2D1.1(b)(1), added two levels to Wheaton's base offense level for the possession of a firearm. The court also increased Wheaton's criminal history points under USSG § 4A1.1(e), finding that Wheaton had participated in the charged conspiracy less than two years after being released from custody for another crime. After calculating the advisory Guidelines range to be 235 to 293 months' imprisonment and noting that the statutory maximum was 240 months of imprisonment, the court sentenced Wheaton to 235 months of imprisonment and three years of supervised release.

Wheaton appeals both his conviction and his sentence. He challenges (1) the district court's failure to grant him a new trial based on juror misconduct, (2) instructions given to the jury about the credibility of certain witnesses, (3) the admission of a photograph of the firearm in question that was found near the location of his arrest, (4) the sufficiency of the evidence to support his conviction, (5) the procedural reasonableness of his sentence, including the district court's calculation of the Guidelines range, (6) the substantive reasonableness of his sentence, and (7) the fundamental fairness of his trial based on cumulative error. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

A. Indictment

In August of 2005, a federal grand jury returned an indictment against Wheaton, Horace Lee Anderson, and .Cortland Love. Count One of the indictment, the only count that involved Wheaton, charged Wheaton, Anderson, and Love with conspiring to distribute cocaine and possessing the drug with the intent to distribute, all in violation of 21 U.S.C. § 846. Anderson and Love both pled guilty to Count One, but Wheaton's case went to trial in February of 2006.

B. Trial testimony

At trial, the government set out to prove that between the fall of 2000 and November of 2004, Wheaton—who was known initially only as "Key"—conspired to transport cocaine from California to Youngstown, Ohio, where the drugs were ultimately distributed. The government presented testimony from 14 witnesses, including federal and local law enforcement officers, a postal inspector, drug dealers, drug users, and unindicted coconspirators and accomplices, all of whom allegedly had contact with the members of the charged conspiracy. Summarized below is the key testimony against Wheaton.

1. Jeffrey Lynn

Jeffrey Lynn testified that between 1999 and 2001, he, his sister Jeracho Poole, and a now-deceased friend transported large quantities of marijuana from California to Youngstown, where Lynn then sold the drug to Anderson and Love. Lynn further stated that in the beginning of 2001, Anderson and Love presented him with a "business proposition for [him] to transport cocaine from California to [Ohio]." According to Lynn, Love gave Lynn the pager number for "a guy named Key that resided in California."

Lynn stated that he subsequently spoke to Key on the phone and arranged a meeting in California between Key and Poole. From that point forward, Lynn claimed, Poole went to California to meet Key two to three times a week by airplane and once or twice a month by car. Lynn further testified that when his sister brought the cocaine back to Youngstown, he would usually divide it evenly between himself, Anderson, and Love. He noted that many of the drug transactions in Youngstown took place in or around three houses— located at 926, 935, and 939 Sherwood— that Anderson owned.

In July of 2001, Poole was arrested. Lynn stated that this caused Key to subsequently come to Youngstown, where Key, Lynn, Anderson, and Love held a meeting at Love's house. According to Lynn, he met Key at this meeting "for the first time face-to-face." Lynn further stated that the purpose of the meeting was to figure out how to reestablish the cocaine operation now that their main courier, Poole, could no longer participate. After the meeting, Lynn met Key approximately three or four times in Ohio and received somewhere between one and three kilograms of cocaine during each transaction. Lynn said that he did not have any further contact with Key after 2002. In addition, Lynn identified Wheaton at trial as the person whom he had known as Key.

Lynn also explained that he had begun cooperating with the government in 2002, and that because he had become an informant for the government in this and other drug cases, the government did not indict him for any of his drug-trafficking activities. He further stated that the government had spent "a couple hundred dollars" paying for his gas, cell phone bill, and other "operational expenses."

2. Jeracho Poole

Lynn's sister, Poole, also testified at Wheaton's trial. Poole said that she first met Key, whom she identified in the courtroom as Wheaton, in Los Angeles, California in either December of 2000 or January of 2001. On the other hand, Poole proceeded to describe a series of three trips between California and Youngstown that started sometime after her release from prison just before Thanksgiving of 2000 and ended with an automobile accident outside of Little Rock, Arkansas on December 13, 2000.

Although Poole did not ascribe specific dates to these trips, her testimony helps to establish the timeline surrounding her first encounter with Key. She testified that her first meeting with Key was arranged by Lynn at a time when she was already in San Diego, California for a marijuana run. Poole explained that she took the train from San Diego to Los Angeles to meet Key, got one kilogram of cocaine from him at that time, returned to San Diego to retrieve her car and the marijuana, and took the drugs back to Lynn in Ohio. She described this trip as a test run to see whether "the thing would work out." Poole stated that she subsequently made another marijuana run to San Diego by car, during which she did not meet up with Key. She further noted that this was the last trip she made to San Diego to pick up marijuana.

Finally, Poole explained that she made a third trip to California by car, where she obtained four kilograms of cocaine from Key in Los Angeles before driving back to Youngstown. This trip was memorable, she explained, because she was involved in a serious car accident outside of Little Rock, Arkansas on her way back to Ohio. The government introduced into evidence a state police report from the accident, which showed that the wreck took place on December 13, 2000.

Poole further testified that she made "numerous" trips by air and car between Los Angeles and Youngstown in 2001, that she met with Key to get cocaine (usually between four and six kilograms) every time, and that her method for contacting Key via pager was always the same. The government introduced into evidence airline tickets showing that Poole had traveled between Ohio and Los Angeles in January of 2001. Poole was questioned about records from two of her cell phones, which showed that she had paged the entry for "Key" on numerous occasions between January of 2001 and July of 2001. She also pointed to many instances when she received callbacks from Key.

In July of 2001, Poole was arrested in Kansas while driving from Los Angeles to Youngtown. A little more than eight kilograms of cocaine was found in her car, in addition to maps of California and a cell phone, the data from which showed an outgoing page to Key dated a few days prior to her arrest. Poole pled guilty to a charge of possession of cocaine and served a five-year sentence of imprisonment. While incarcerated, she began to cooperate with federal authorities, but did not receive a reduced sentence in exchange for her cooperation. Poole acknowledged, however, that in exchange for her truthful testimony before the grand jury in the present case, the government promised to not further prosecute her and to inform the court handling her brother's crack cocaine charges that she was cooperating with the government.

3. Other testimony

In addition to Lynn and Poole, the government presented testimony from four individuals who claimed to have obtained either marijuana or cocaine from the alleged conspirators (including Lynn) during the course of the conspiracy. The testimony from these individuals served to corroborate Lynn's and Poole's testimony about the cocaine operation and to link the Youngstown part of that operation to Anderson's three houses.

For example, Brandon McDowell testified that, at some point between 2001 and 2003, he was at 926 Sherwood when he was introduced to someone named Key, whom he identified in the courtroom as Wheaton. McDowell further stated that,...