USA. v. Pigee & Webb

• Decision Date: 10 December 1999
• Docket Number: Nos. 98-2816,98-2823 and 98-3212,s. 98-2816
• Citation: 197 F.3d 879
• Parties: (7th Cir. 1999) UNITED STATES OF AMERICA,Plaintiff-Appellee, v. MICHAEL PIGEE, RAMON WEBB, and DENISHHA ANN LIPSCOMB, Defendants-Appellants
• Court: U.S. Court of Appeals — Seventh Circuit

Page 879

197 F.3d 879 (7th Cir. 1999)

UNITED STATES OF AMERICA,Plaintiff-Appellee, v. MICHAEL PIGEE, RAMON WEBB, and DENISHHA ANN LIPSCOMB, Defendants-Appellants.

Nos. 98-2816, 98-2823 and 98-3212

In the United States Court of Appeals For the Seventh Circuit

Argued May 11, 1999

Decided December 10, 1999

Appeal from the United States District Court for the Southern District of Illinois. No. 97 CR 30010--William D. Stiehl, Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before COFFEY, RIPPLE and Diane P. Wood, Circuit Judges.

COFFEY, Circuit Judge.

On June 18, 1997, a federal grand jury in the Southern District of Illinois returned an eleven count Second Superseding indictment against Brian Frye,¹ Frye's wife, Denishha Ann Lipscomb, Michael Pigee, and Ramon Webb. Count One charged Lipscomb, Pigee, and Webb (as well as Frye) with conspiracy to distribute crack cocaine, in violation of 21 U.S.C. sec. 846. Count 2 charged Lipscomb (and Frye) with distributing crack cocaine. See 21 U.S.C. sec. 841(a)(1). Count 5 charged Pigee with intent to distribute crack cocaine. See 21 U.S.C. sec. 841(a)(1). Count 6 charged Lipscomb with maintaining a residence for the purpose of distributing cocaine and crack cocaine, and Count 7 charged Lipscomb with making a building she owned available for the purpose of storing cocaine and cocaine base. See 21 U.S.C. sec. 856(a)(1), (a)(2). Counts 9 and 10 charged Webb and Pigee, respectively, with unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. sec. 922(g)(1). Counts 3, 4, 8, and 11 are not involved in this appeal.² On November 26, 1997, a jury convicted the defendants on all counts charged. Lipscomb, Pigee, and Webb appeal.

I. BACKGROUND

Working with Alton, Illinois Police surveillance officers, Melton Thomas bought crack cocaine from defendants Frye and Lipscomb on December 12, 1996, at their home at 539 Highland Avenue in Alton, Illinois. Thomas later made two more controlled crack purchases from Frye at Frye's home at 539 Highland Avenue.

Lipscomb owned the house at 539 Highland Avenue in Alton, and the house next door at 541 Highland Avenue. During the last crack buy that Thomas made under police surveillance, the police recorded Frye telling Thomas that he "had to go next door to get the crack." Police then saw Frye leave his residence and enter the house at 541 Highland Avenue. Police observed Frye as he remained in the house next door for less than one minute, returned to his house at 539 Highland Avenue and completed the sale to Thomas.

On January 23, 1997, the day after Thomas' final controlled crack buy, police simultaneously executed search warrants at 539 and 541 Highland Avenue. At 539 Highland Avenue, police seized 3.6 grams of crack and two firearms--a shotgun from Frye's bedroom and a loaded handgun from the living room (next to the front door). At 541 Highland Avenue, police seized 4.2 grams of crack and two firearms; police found a loaded handgun underneath a bed in defendant Webb's bedroom and a second loaded handgun in the other bedroom, along with several documents bearing defendant Pigee's name.

Webb testified at trial that although he did own the handgun found under his bed, he kept it only for protection. Webb claimed that he was unaware of the presence of the other handgun in the house which was found next to 4.2 grams of crack cocaine.

Melton Thomas testified at trial that he had purchased crack from the defendants. Nicole Hearn, who lived in the basement of Frye and Lipscomb's house for part of the time relevant to this action, also testified at trial that both Frye and Lipscomb sold crack to customers inside the house at 539 Highland Avenue throughout the time she lived with them.

Other testimony offered at trial demonstrates that 541 Highland Avenue, which defendants Pigee and Webb rented from Lipscomb, was also utilized in the charged drug conspiracy. Thomas Hearn testified that Pigee would occasionally sell crack at 541 Highland Avenue, but never inside the house.

Hearn also bought crack from Webb, but he testified that Webb always refused to sell the crack to him at the 541 Highland Avenue address. Instead, Webb would ask Hearn what he wanted and the two would meet somewhere else to complete the buy. Webb told Hearn that "they didn't really want [Hearn] to come to the house."

Trial testimony also established that Pigee and Webb both delivered crack for resale to Frye and Lipscomb at the 539 Highland address. Reagan Jones testified that on approximately thirty occasions, Frye and Lipscomb asked Jones to leave when Webb arrived on the scene, explaining that "stuff" was coming over and that Jones could not be present when it arrived. On each of these occasions, Lipscomb and Frye were out of crack before Webb arrived, but had crack to sell to Jones immediately after Webb left the house.

Thomas said that he was not asked to leave Frye and Lipscomb's house when Pigee came over, but that on two occasions when Frye was out of crack, Pigee arrived, Pigee and Frye stepped into another room for privacy, and as soon as Pigee left, Frye had the necessary crack to sell to Thomas.

Timothy Brunholtz, Drug Enforcement Agency ("DEA") Resident Agent in Charge, testified for the government as an expert witness on narcotics trafficking. The testimony of Thomas and Jones supports Brunholtz's testimony that 541 Highland Avenue is what the DEA refers to as a "stash house," the premises where an additional drug supply for the "crack house" is kept. Brunholtz's opinion was based in part on the fact that the crack seized at 539 Highland Avenue was packaged for sale, while the crack seized at 541 Highland Avenue was not.

DEA Agent Ralph Moore was involved in the drug raid at 539 Highland Avenue. Moore testified that during the raid he had located and called out a serial number from a television set ("TV") to an Alton police officer. Moore recalled that Alton Police Detective Waldrup had in turn called and relayed the serial number to a Rent-A-Center store. The rental agency confirmed that the TV had in fact been rented from them. At the trial, Reagan Jones testified that he had traded a rented TV to Frye in exchange for crack cocaine. Jones said that he recognized that same TV in photos taken by the police after the execution of the search warrant at 539 Highland Avenue.

After the trial concluded, a jury found the defendants Lipscomb, Pigee, and Webb guilty of all counts charged in the Second Superseding indictment. The defendants filed post-trial motions alleging (1) perjury by Moore (claiming he testified falsely about the television set), (2) prosecutorial misconduct, and also (3) sought a new trial or, in the alternative, dismissal of the indictment. The court held two post-trial evidentiary hearings related to the defendants' motion. At the first hearing, the defendants called Sergeant Waldrup as a witness. He testified that he had not called in any TV serial numbers on the night of the raid and that he had not called Rent-A-Center either. A manager from Rent-A-Center testified that no one from the police department had called the store to check on a TV serial number. The defense argued that this testimony showed that Agent Moore had perjured himself. However, government witnesses called at the hearing were able to generally support Moore's testimony.

At the first hearing, DEA Special Agent Paul Robinson testified that he remembered Moore reading a serial number from the back of a TV because Moore had borrowed Robinson's flashlight to do so. Robinson also recalled that he had heard someone from the Alton Police Department, either Sgt. Waldrup or Detective Adams, calling in serial numbers on the police radio. Further, a witness from the Illinois State Police explained that according to State Police computer records, an Alton police officer had indeed called in a serial number with the letters "JVC" on the night of the raid,³ but that the records did not indicate which Alton police officer had made the call. Finally, trial testimony revealed that Jones had leased a JVC television from the Rent-A-Center.⁴

The trial court denied the defendants' Motion for a New Trial after the first evidentiary hearing, finding that Moore had not testified falsely and that the evidence demonstrated that Moore's description of the events involving the TV set was likely accurate. The judge concluded that Agent Moore and Sgt. Waldrup had, at worst, a "garden variety" disagreement about the events surrounding the TV, probably due to the fact that Sgt. Waldrup was preoccupied with commanding thirty officers on the night of the execution of the search warrant.

The defendants filed a Motion to Reconsider and the district court held a second post-trial evidentiary hearing on the television issue. At this second hearing, the defense called a witness from the JVC Corporation whose testimony tended to establish that the serial number called in to the State Police could not have been that of the TV Jones rented from the Rent-A-Center. Despite this evidence, the trial judge denied the defendants' Motion to Reconsider, again ruling that the testimony of Agent Moore was not false and that Moore's testimony had been corroborated by other evidence introduced at the post-trial hearings.

The judge sentenced Lipscomb to 180 months imprisonment on each of counts 1, 2, 6, and 7, to be served concurrently; supervised release terms of four years on Count 1 and three years on Counts 2, 6, and 7, with terms to run concurrently; a $400 assessment; and a fine of $1500.

The district court sentenced Pigee to 168 months of imprisonment on Counts 1 and 5, and 120 months on Count 10, all terms to be served concurrently; supervised release terms of eight years on Count 1, six years on Count 5, and three years on Count 10, with terms to run concurrently; a $300 assessment; and a $1500 fine.

The trial court sentenced Webb to 165 months of...