USA. v. Bowens

• Decision Date: 29 February 2000
• Docket Number: No. 99-4060,CR-98-110,99-4060
• Parties: (4th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SPENCER BOWENS, a/k/a Scooter, a/k/a Clyde, a/k/a Melvin McCurdy, a/k/a Doc Johnson, Defendant-Appellant. () Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 302

224 F.3d 302 (4th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SPENCER BOWENS, a/k/a Scooter, a/k/a Clyde, a/k/a Melvin McCurdy, a/k/a Doc Johnson, Defendant-Appellant.

No. 99-4060 (CR-98-110)

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: February 29, 2000

Decided: August 18, 2000

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, District Judge. [Copyrighted Material Omitted] COUNSEL ARGUED: Craig Stover Cooley, Richmond, Virginia, for Appellant. David John Novak, Assistant United States Attorney, Richmond, Virginia, for Appellee. ON BRIEF: Helen F. Fahey, United States Attorney, Richmond, Virginia, for Appellee.

Before NIEMEYER, MICHAEL, and TRAXLER, Circuit Judges.

Affirmed in part and vacated in part by published opinion. Judge Michael wrote the opinion, in which Judge Niemeyer and Judge Traxler joined.

OPINION

MICHAEL, Circuit Judge:

A federal jury in the Eastern District of Virginia convicted Spencer Bowens of conspiracy to possess and distribute crack cocaine, powder cocaine, and heroin, in violation of 18 U.S.C. § 846; two counts of harboring a fugitive from arrest, in violation of 18 U.S.C. § 1071; and obstruction of justice, in violation of 18 U.S.C.§ 1503. Bowens appeals his conviction and sentence for conspiracy and his convictions for harboring a fugitive. He argues (1) that his conspiracy conviction must be reversed because the district court refused to instruct the jury on multiple conspiracies, (2) that his two convictions for harboring must be reversed because of improper venue, and (3) that his life sentence for conspiracy to distribute crack cocaine must be set aside because it is impossible to tell from the jury's verdict whether he was convicted for conspiracy to distribute crack or heroin. We conclude that the evidence did not support the existence of multiple conspiracies, so we affirm the conspiracy conviction. Because Bowens' acts of harboring, the sole essential conduct element of the charged offense, occurred outside the Eastern District of Virginia, venue in that district was improper. We therefore vacate the harboring convictions. Finally, we hold that the district court committed plain error by sentencing Bowens for conspiracy to distribute crack cocaine in the absence of a special verdict. However, we decline to notice that plain error in light of the overwhelming, un-controverted evidence that Bowens did in fact conspire to distribute crack cocaine. We therefore affirm Bowens' sentence on the conspiracy count.

I.

The drug conspiracy charged in this case concerned a large crack distribution network known as the "Poison Clan." The Poison Clan started out in Brooklyn, New York, in the mid-to-late 1980s. Later, it extended north to Albany and the outskirts of Boston and south to Baltimore, Washington, Richmond, Raleigh, Charlotte, and Columbia, among other cities. Couriers used cars outfitted with secret compartments to transport crack from New York to points north and south. (They made some deliveries of powder cocaine to the Carolinas, where it then was cooked into crack.) The couriers returned to New York with the proceeds, which were substantial. For example, by the end of 1993 the organization's Richmond operations, where shifts of dealers sold crack 24 hours a day, generated as much as $80,000 per week. At the same time, the organization was making weekly deliveries of crack to Albany and Baltimore while it looked for still other opportunities to expand.

A man named Dean Beckford was the head of the Poison Clan. Bowens was Beckford's confederate, eventually overseeing the organization's crack dealing operations in North and South Carolina. Bowens' responsibilities included procuring drugs for couriers to deliver to co-conspirators in the Carolinas, arranging meetings between couriers and local dealers, and (on at least one occasion) cooking powder cocaine into crack. In March 1994 Bowens traveled from New York to Columbia, South Carolina, where he remained long enough to set up a crack distribution operation on behalf of the Poison Clan. Beckford sent couriers to Columbia with cocaine; Bowens sent them back to Beckford with cash. Beckford and Bowens referred to one another as "partners" and split the proceeds from the organization's Carolina drug operations equally between themselves. Other members of the organization testified that receiving a command from Bowens was tantamount to receiving a command from Beckford and that Bowens was Beckford's "surrogate."

In May 1995 members of the Poison Clan's Richmond contingent began to suspect that they were under government surveillance. Wary of the increased attention, Beckford and the man who oversaw the Richmond operations, Ricardo Laidlaw, closed up shop in Richmond. Laidlaw relocated to Brockton, Massachusetts, where he continued to distribute crack for the Poison Clan. In Brockton the organization once again attracted the attention of the police, forcing Laidlaw to abandon that location and return to New York. The move provided little cover, however, for in New York the members of the Poison Clan found that "federal agents [were] everywhere." Throughout the summer of 1996 Bowens and Laidlaw repeatedly warned Beckford that he was "hot," and the three men began to discuss plans for going into hiding. Bowens had family in South Carolina, and he suggested that Beckford and Laidlaw could hide there without attracting the attention of the police. When Bowens' aunt died in late August 1996, he drove Beckford's Cadillac to St. Stephens, South Carolina, to attend the funeral. While there, he registered the car in the name of his cousin, Harold Bowens, and obtained South Carolina plates.

Bowens and Laidlaw's fears that the police were closing in were well founded. On June 7, 1996, a federal grand jury in the Eastern District of Virginia had returned a sealed indictment charging twenty-three members of the Poison Clan, including Beckford and Laidlaw, with conspiracy to distribute crack and powder cocaine. Additional charges against Beckford included two counts of murder. That same day, arrest warrants had also been issued (under seal) for all twenty-three defendants. Bowens was not indicted in this first round.

Over the course of the summer of 1996 the FBI and the New York City Police Department located most of the indicted members of the Poison Clan. The FBI carried out a coordinated arrest plan in New Haven, New York, Richmond, and Fort Lauderdale on August 26, 1996. Although Beckford and Laidlaw were in New York on that day, they and a third member of the Poison Clan, Mark Phillips, successfully evaded arrest. The three decided that it was time to flee New York. Beckford called Bowens in South Carolina, informed him of the FBI's push to make arrests, and told him that they were heading south to meet him. Before leaving, however, Beckford obtained four kilograms of cocaine powder to supply the organization's North Carolina market.

Garth Sambrano drove Beckford, Laidlaw, and Phillips to Wilmington, North Carolina, where they met up with Bowens and yet another member of the ring, David Armstrong. In Wilmington, Beckford, Laidlaw, and Bowens discussed the fact that Beckford and Laidlaw were wanted by the authorities. Armstrong and Sambrano were excluded from these conversations, however, since they were not "in the inner circle." After a few days in Wilmington, Beckford, Bowens, Laidlaw, Phillips, and Armstrong drove to St. Stephens. They stayed there for the next few weeks at the home of Armstrong's parents, who were also cousins of Bowens.

From St. Stephens, Beckford arranged for a courier to deliver powder cocaine to Sambrano in Raleigh. When the drugs arrived, Beckford, Bowens, Laidlaw, Phillips, and Armstrong drove to Raleigh, where Armstrong had an apartment. Beckford, Bowens, and Laidlaw cooked the cocaine powder into crack and then turned it over to Sambrano for distribution. Bowens directed Laidlaw to"tip" Armstrong $200 for the use of his apartment, and Laidlaw did so.

In early October 1996 Beckford and Bowens decided to return to New York, where Beckford's fiancee still lived and where Beckford planned to get a phony New Jersey driver's license with Bowens' help. While in New York, Beckford continued to send cocaine to Laidlaw in Raleigh. After about a month Beckford returned to Raleigh, while Bowens, who had been shot and wounded in the meantime, stayed behind in New York. Beckford was not gone for long, however; in late November he drove back to New York to buy an engagement ring for his fiancee. A few days later, on November 26, 1996, Beckford was arrested in Oceanside, New York.

Upon learning of Beckford's arrest, Bowens telephoned Laidlaw. Bowens urged Laidlaw to work with him to "keep the operation going." Laidlaw and the other North Carolina members of the group continued selling the crack that they had on hand, periodically sending cash to Bowens in New York. In January 1997 Bowens persuaded Laidlaw, Phillips, and Sambrano to send him $55,000 in cash for more crack that Bowens promised to ship. The money was sent, but Bowens never delivered the drugs. In August 1997 Laidlaw and Phillips were arrested in North Carolina. They cooperated with the authorities and provided information that led to Bowens' indictment and arrest in the spring of 1998. The indictment charged Bowens with one count of conspiracy to distribute crack cocaine, powder cocaine, and heroin; two counts of concealing a person from arrest; one count of money laundering; and one count of obstruction of justice, for instructing a grand jury witness to lie.¹

At trial Bowens requested a multiple conspiracy instruction, which the district court denied. Bowens also requested a jury instruction that would have required the government to prove venue on the harboring charges, that is, that the acts of harboring occurred in the Eastern...