United States v. Graham, 051608 FED6, 07-1081

Docket Nº:06-1026, 06-1027, 07-1081
Opinion Judge:Rogers, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. OZRO GRAHAM, Defendant-Appellant, RILEY TROY GRAHAM, Defendant-Appellant, BRYON JONES, Defendant-Appellant.
Judge Panel:Before: COLE, GIBBONS, and ROGERS, Circuit Judges.
Case Date:May 16, 2008
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

OZRO GRAHAM, Defendant-Appellant,

RILEY TROY GRAHAM, Defendant-Appellant,

BRYON JONES, Defendant-Appellant.

Nos. 06-1026, 06-1027, 07-1081

United States Court of Appeals, Sixth Circuit

May 16, 2008

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

Before: COLE, GIBBONS, and ROGERS, Circuit Judges.

Rogers, Circuit Judge.

This consolidated appeal involves three defendants who were involved in a large-scale cocaine distribution and money-laundering ring. Nineteen individuals were indicted for their participation in the drug ring, but only three - Riley Troy Graham, Ozro Graham, and Bryon Jones - are parties to this appeal. Of these three, only Jones went to trial. He was convicted of conspiracy to distribute cocaine and cocaine base in violation of 21 U.S.C. § 841 and § 846, as well as conspiracy to launder monetary instruments in violation of 18 U.S.C. § 1956. Riley Troy Graham, the leader of the criminal organization, entered into a plea agreement and pled guilty to engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848, and conspiring to launder monetary instruments in violation of 18 U.S.C. § 1956. Ozro Graham, Riley Troy Graham's brother, also entered into a plea agreement. He pled guilty to the same offenses of which Jones was convicted. On appeal, each of the defendants argues that his convictions should be vacated. Because their arguments are unavailing, however, the defendants' convictions are affirmed.

I.

This case arose out of an elaborate drug distribution and money-laundering ring that operated throughout the 1990's in Michigan, California, Tennessee, West Virginia, Ohio, Pennsylvania, Georgia, and Saint Lucia, West Indies. The organization was led by Riley Troy Graham and was centered in Detroit, Michigan. Graham and his associates initially conducted their operation by acquiring cocaine in California, hiding it inside candles, and shipping it to Michigan via private delivery companies like UPS. Various seemingly legitimate businesses were used as fronts for the operation. In particular, a business known as "The Business and Postal Center, " located in Beverly Hills, California, was used to facilitate the shipment of the drugs. Companies known as "Active Wear" and "B&B Wholesale" were also used as fronts. After the DEA learned that the organization was shipping cocaine in candles, however, the conspirators were forced to change their business model. As a result, the hub of the operation was moved to Nashville, Tennessee, and Riley Troy Graham started a trucking company that was then used to ship cocaine across the country. Graham's organization made illicit profits on the order of millions of dollars and even tried to use some of the profits to develop the first casino resort on Saint Lucia.

On July 8, 2003, Riley Troy Graham and eighteen of his associates - including Bryon Jones and Ozro Graham - were named in an indictment charging them with numerous offenses stemming from their criminal enterprise. The facts pertaining to Jones and the Graham brothers are discussed individually below.

A. Defendant Bryon Jones

Bryon Jones first met Riley Troy Graham in the late 1980's. In 1994, Jones moved from Detroit, Michigan, to Los Angeles, California. Later that year, he purchased The Business and Postal Center in Beverly Hills for $20, 000. Jones does not deny his ownership of The Business and Postal Center, nor does he deny the existence of the conspiracy to distribute drugs and launder money. Instead, he claims that he was not a part of the conspiracy. Jones purports to have been nothing more than an absentee owner whose business was used for drug trafficking without his knowledge. At trial, however, that claim was refuted. A co-defendant named Julia Carter identified Jones as an active participant in the conspiracy, and another co-defendant, Kyle Stevens, also provided testimony linking Jones to the conspiracy.

Jones' absentee-owner strategy ultimately proved fruitless, as the jury convicted him of conspiracy to distribute cocaine and cocaine base in violation of 21 U.S.C. § 841 and § 846, as well as conspiracy to launder monetary instruments in violation of 18 U.S.C. § 1956. He was subsequently sentenced to 240 months in prison. Jones now asks this court to vacate his conviction and remand the case for re-trial on the ground that the district court committed plain error by admitting testimonial hearsay evidence in violation of the Confrontation Clause, and on the ground that the variance between the allegations in the indictment and the proof presented at trial amounted to a constructive amendment of the indictment.

Jones' Confrontation Clause argument arises from the district court's admission of hearsay evidence through the testimony of DEA Agent Mark German. Specifically, Jones protests the district court's admission of hearsay statements made by: (1) Allen Phillips, who sold The Business and Postal Center to Jones; (2) Wayne Parker, who rented a house in Los Angeles to a different member of the conspiracy; (3) government agents who informed Agent German of the circumstances surrounding the interception of packages containing drugs and money; (4) security guards who worked at an apartment complex that was suspected of being the home of individuals involved with the conspiracy; and (5) Detective Milligan of the Los Angeles Police Department. Jones concedes that the plain error standard applies to his Confrontation Clause argument because he did not object to this evidence during the trial. A description of the hearsay declarants and the content of the objected-to evidence is provided below.

i. Hearsay Statements of Allen Phillips

Agent German testified that Allen Phillips told him that Phillips had sold The Business and Postal Center to Jones - who was using the alias Brian Simms - for $20, 000. Agent German also said that Phillips told him that Jones had said that his address was 9811 Delco in Chatsworth, California. Agent German further said that an individual using the name Troy Williams - which was an alias used by Riley Troy Graham - had told Phillips that he, rather than Jones, was actually the owner of The Business and Postal Center.

ii. Hearsay Statements of Wayne Parker

Wayne Parker was the owner of the house at 9811 Delco in Chatsworth, California. Agent German testified that Parker told him that Parker had rented the house to Leon Smith, a co-defendant in this case whose charges were dropped because he was found incompetent to stand trial. Agent German also said that Parker told him that Leon Smith had abandoned the house in April of 1995, which roughly coincided with the Government's interception of a shipment of drugs going to Michigan and a shipment of money going to California.

iii. Hearsay Statements of Agents Involved in the Interception of Packages

Agent German testified that on October 29, 1994, Agents Charles Bazzy and Kristen Denard intercepted a package at the Airborne Express facility in Oakland County, Michigan. The package was being sent from Active Wear to B&B Wholesale located at 9811 Delco in Chatsworth, California. Agent German further testified that a search warrant was obtained for the package after a canine inspection indicated that it contained drugs. When the box was opened, however, the agents found that it only contained candles and articles of clothing.

Agent German also testified about a package that was seized by Agents James Lightfoot and Gary Jones in April of 1995 at a UPS facility in Detroit. German testified that the package was being sent to an address in Detroit from B&B Wholesale in California. He further stated that agents discovered that the return address in California was fictitious, and that a canine inspection indicated that the package contained drugs. After the agents obtained a search warrant, the package was opened, and it was found to contain a candle. Agent Lightfoot then dug into the candle and discovered that cocaine was hidden inside it.

Finally, Agent German testified that Agent Charles Bazzy intercepted a package at the Airborne Express facility. The package contained a candle, inside of which was hidden $15, 040 in cash. The package was being sent from Active Wear to 8693 Wilshire Boulevard, Beverly Hills, California, which was the address of The Business and Postal Center.

iv. Hearsay Statements of Apartment Complex Security Guards

Agent German testified that he went to an apartment complex in which some members of the conspiracy were suspected to be living. Upon arriving at the complex, he asked the security guards to ascertain the names of everyone inside a particular apartment. The security guards complied and informed him that the apartment was inhabited by Kelly, Leon, and a female who did not identify herself. Agent German insinuated that Kelly and Leon were in fact Kelly Terrell and Leon Smith, two members of the conspiracy.

v. Hearsay Statements of Detective Milligan

Agent German testified that he was informed by Detective Milligan that a canine inspection in Los Angeles had uncovered a drug-laden package headed for Detroit. He further said that Detective Milligan told him that a search warrant was obtained in California, and that the package was found to contain cocaine encased in candles. Additionally, Agent German testified that the package had been sent from a Mailboxes, Etc. store, not The Business and Postal Center.

B. Defendant Riley Troy Graham

Shortly before his trial was set to begin in May of 2005, Riley Troy Graham received an offer of a plea agreement from the Government. By its own terms, the offer was set to expire at 2:00 P.M. on May 25, 2005. Graham attempted to communicate his acceptance of the offer "late on May 25, 2005, " which presumably means that he attempted to accept it after the...

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