United States v. Flowers, 15-3988
| Decision Date | 24 October 2017 |
| Docket Number | No. 15-3990,No. 15-4028,No. 15-3991,No. 15-4003,No. 15-3988,15-3988,15-3990,15-3991,15-4003,15-4028 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KENNETH FLOWERS; TERRANCE CHAPPELL; KALI ALEXANDER; RASHEAM NICHOLS; JUSTIN MAXWELL, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR PUBLICATION
File Name: 17a0585n.06
This case is one in a long series of elaborate, nearly-identical sting operations conducted by the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF"). In these operations, referred to as "stash house stings," an undercover agent recruits individuals to steal a large quantity of drugs from a house protected by an armed guard. The house, the drugs, and the guards, however, are all fictional—and would-be participants are arrested before they reach the invented location. After such a sting operation, Kali Alexander, Terrance Chappell, Kenneth Flowers, Justin Maxwell, and Rasheam Nichols were arrested, tried, and convicted of conspiracy to possess with intent to distribute five or more kilograms of cocaine and using or carrying a firearm during and in relation to a drug conspiracy. The Defendants appeal their convictions and their sentences on various grounds. We AFFIRM.
The "stash house sting" that led to Defendants' convictions was orchestrated by ATF Special Agent Richard Zayas. The ATF has specific protocols for conducting stings on fictional drug "stash houses," and Zayas himself has made a career of coordinating the stings, having worked on or been involved with over 100 similar scenarios across the country. This was his first stash house sting in Cleveland.
To identify a target for the sting, Zayas directed two informants, referred to as #2302 and #9097 (working for pay and to reduce a sentence, respectively) to go into the community and return with general information. Informant #2302 approached Alexander and discussed selling firearms, but the sale never occurred. Alexander later agreed to sell the informant ten grams of heroin. The informant brought up the idea of a potential robbery with Alexander, but this meeting was not recorded and Zayas did not know what was discussed. On the day of the heroin sale, both informants and Zayas met with Alexander, who sold them approximately 6.5 grams of heroin for $900 that was provided by the ATF. The meeting occurred in an undercover vehicle and was recorded.
Zayas then proposed the idea of robbing a cocaine stash house to Alexander, presenting himself as a disgruntled drug courier who felt he was being treated unfairly. He specified that the house would have eight to nine kilograms of cocaine and be guarded by two men, one armed with a gun. Zayas discussed splitting the cocaine 50/50 with Alexander and whoever else assisted with the robbery.
The following week, Alexander brought Nichols to meet with Zayas, who explained the scenario to him. Zayas asked if Nichols knew what he was doing, and Nichols indicated that he did. The next week, Alexander brought Maxwell to meet with Zayas, who again discussed thedetails of the plan and asked if the men needed a car to use on the day of the robbery. They said that they did.
On the day of the proposed robbery, Alexander, Nichols, and Maxwell met the informant on the east side of Cleveland, bringing along Chappell and Flowers. The informant drove the men to meet Zayas at a CVS Pharmacy across town. On the video recording of the drive, Alexander is sitting in the front seat and the other four defendants are in the back; both Flowers and Nichols are holding firearms. When the vehicle arrived at the CVS, Zayas entered the car and took approximately four minutes to describe the robbery to the men This was the first and only time he spoke with Flowers or Chappell. At trial, Zayas testified that the Defendants spoke about the plan, asked him questions, and were attentive. He again told them that the house contained eight to nine kilograms of cocaine and was guarded by two men, one with a gun.
After the discussion, the informant drove the Defendants to a warehouse about three blocks away where they were arrested after exiting the car. Chappell ran and climbed a fence but soon surrendered to police at gunpoint. All of the Defendants had firearms except Chappell, but Special Agent Daniel Forster testified that he heard and saw a firearm drop from Chappell's person while he was running.
On September 23, 2014, the Defendants were charged in an eleven-count indictment. All five Defendants were charged with conspiracy to possess with intent to distribute five or more kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) and 846 (Count 2) and with using or carrying a firearm during and in relation to a drug conspiracy, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Counts 3-7). Alexander was charged with distributing 5.5 grams of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (Count 1). Alexander and Nichols were charged with being felons in possession of ammunition, in violation of 18 U.S.C.§ 922(g)(1) (Counts 8-9). Maxwell and Chappell were charged with being felons in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g) (Counts 10-11). Flowers had no criminal record.
The Defendants moved for separate trials on the basis that a joint trial would compromise their Sixth Amendment Confrontation Clause rights. Their motion was denied. The Defendants also filed a pre-trial Motion to Preclude Sentence Enhancement, objecting to the ten year mandatory minimum sentence because it was the result of sentencing manipulation and thus violated due process. The district court indicated that this issue would be more appropriately raised at sentencing. The Defendants were tried together before a jury.
The parties contested the amount of cocaine at issue in the conspiracy; the Defendants argued that their intention and agreement was to take half of the cocaine and that the arbitrarily selected amount of fictional drugs constituted sentencing manipulation. Zayas testified that the fictional amount of cocaine originated in a conversation with Special Agent Johnson and the local police department and that it was intended to mimic the average quantity in a Cleveland stash house. Zayas had not seen any documentation confirming that number and Johnson was not able to point to any when he testified.
During rebuttal closing argument, the prosecutor stated that every time jurors had been asked to consider a lower amount of cocaine, they were being "invited to violate [their] oath as jurors." The Defendants moved for a mistrial, which was denied. At the close of evidence, the Defendants moved for a judgment of acquittal, and renewed it after the defense rested. The Defendants were convicted on all counts and, by Special Verdict Form, the jury found that the amount of cocaine involved in the conspiracy was more than five kilograms, triggering a mandatory minimum sentence.
At sentencing, the district court overruled the Defendants' sentencing manipulation and due process objections. Alexander was sentenced to concurrent terms of 151 months of imprisonment on Counts 1 and 2 and 120-months on Count 8, and a consecutive 60-month term on Count 3. Nichols was sentenced to concurrent terms of 121 months of imprisonment on Count 2 and 120 months on Count 9, and a consecutive term of 60 months on Count 4. Maxwell was sentenced to concurrent terms of 121 months on Count 2 and 120 months on Count 10, and a consecutive term of 60 months on Count 5. Chappell was sentenced to concurrent term of 121 months of imprisonment on Count 2 and 120 months on Count 11, and a consecutive term of 60 months on Count 6. Flowers was sentenced to 120 months on Count 2 and a consecutive term of 60 months on Count 7.
The Defendants appeal their convictions and their sentences on various grounds.
Alexander, Chappell, Maxwell, and Nichols challenge the district court's denial of their motion to dismiss the indictment based on outrageous government conduct. They argue that the Government's conduct "created and encouraged the defendants' commission of the offense by luring the impoverished . . . defendants with the promise of a large payoff, making repeated requests for meetings over a short period of time, making repeated demands for their commitment to the conspiracy, suggesting and enabling their possession of firearms, by providing transportation via the confidential informant to a pre-robbery meeting, and by providing them with a car to use for purposes of the robbery." In examining whether the indictment could have been dismissed based on this defense, we review the district court's conclusions of law de novo. United States v. Amawi, 695 F.3d 457, 483 (6th Cir. 2012).
Under the outrageous government conduct defense, government involvement in a crime may be "so excessive that it violates due process and requires the dismissal of charges against a defendant even if the defendant was not entrapped." United States v. Al Kassar, 660 F.3d 108, 121 (2d Cir. 2011). Under the defense, the government's conduct alone could bar prosecution, regardless of a defendant's predisposition. United States v. Tucker, 28 F.3d 1420, 1422, 1424 (6th Cir. 1994). The outrageous government conduct defense is distinct from the defense of entrapment, which focuses on a defendant's intent or predisposition to commit the crime. Sherman v. United States, 356 U.S. 369, 372 (1958) (); Sorrells v. United States, 287 U.S. 435, 451 (1932).
In Tucker, we stated that "there is no authority in this circuit which holds that the government's conduct in...
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