USA v. Ward

• Decision Date: 15 December 1998
• Docket Number: 97-6199,97-6200,Nos. 97-6089,s. 97-6089
• Citation: 190 F.3d 483
• Parties: (6th Cir. 1999) United States of America, Plaintiff-Appellee, v. Cheryl Ward, a/k/a Cheryl Morris (97-6089), Earl Morris (97-6199), and Larry Turnley, a/k/a "L.T." (97-6200), Defendants-Appellants. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 483

190 F.3d 483 (6th Cir. 1999)

United States of America, Plaintiff-Appellee, v. Cheryl Ward, a/k/a Cheryl Morris (97-6089), Earl Morris (97-6199), and Larry Turnley, a/k/a "L.T." (97-6200), Defendants-Appellants.

Nos. 97-6089, 97-6199, 97-6200

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: December 15, 1998

Decided and Filed: September 7, 1999

Rehearing and Suggestion for Rehearing En Banc Denied Nov. 5, 1999.

Appeal from the United States District Court for the Middle District of Tennessee at Nashville, No. 96-00120--Thomas A. Wiseman, Jr., District Judge. [Copyrighted Material Omitted] Robert Anderson, Asst. U.S. Atty., Office of the the U.S. Attorney, Nashville, TN, Vicki S. Marani, U.S. DEPARTMENT OF JUSTICE, APPELLATE SECTION, CRIMINAL DIVISION, Washington, D.C., for Appellee.

Martin S. Pinales, SIRKIN, PINALES, MEZIBOV & SCHWARTZ, Cincinnati, Ohio, for Defendant-Appellant Cheryl Ann Ward.

Charles R. Ray, Nashville, Tennessee, for Defendant-Appellant Earl Morris.

Sabin R. Thompson, WILLIAMS & PROCHASKA, Nashville, Tennessee, for Appellants.

Before: RYAN, SUHRHEINRICH, and COLE, Circuit Judges.

RYAN, J., delivered the opinion of the court, in which SUHRHEINRICH, J., joined. COLE, J. (pp. 492-94), delivered a separate opinion concurring in part and dissenting in part.

OPINION

RYAN, Circuit Judge.

The three defendants in this case, Earl Morris, Cheryl Ward, and Larry Turnley, were convicted of participation in a large cocaine distribution conspiracy. Their appeals raise the following issues:

* Whether there was sufficient evidence to support Ward's conviction for possession of cocaine and Turnley's conviction on the conspiracy count;

* Whether the district court erred by admitting in evidence, a certified copy of a judgment of Ward's previous conviction for a drug offense, which contained extraneous material;

* Whether the district court abused its discretion in refusing to grant Morris a separate trial;

* Whether there was a violation of 18 U.S.C. §201(c)(2);

* Whether the district court abused its discretion in denying Morris and Turnley a mistrial or new trial because of alleged perjury, subornation of perjury, and denial of due process; and

* Whether the court erred when it included in the sentencing calculus, conduct for which Turnley was acquitted, thereby resulting in a life sentence.

For the reasons discussed below, we will affirm in all respects.

I.

A grand jury indicted the three defendants, as well as seven others, charging all with complicity in a very large cocaine trafficking conspiracy. All but the three defendants and Michael Smith pled guilty and agreed to cooperate with the government and testify at the defendants' trial in return for reduced sentences for some, and the promise of a sentence reduction recommendation pursuant to section 5K1.1 of the Sentencing Guidelines for others. Michael Smith was acquitted on all counts.

The indictment charged Morris and Ward with distribution and possession with the intent to distribute cocaine on April 10, 1995, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, the aiding and abetting provision. Six additional counts charged Morris and Ward with possession of cocaine, on dates ranging from July 27, 1994, through March 14, 1995. All of the codefendants, including the three appealing here, were charged with conspiring to distribute and possess cocaine from June 1, 1994, through April 10, 1995, in violation of 21 U.S.C. § 846. Morris was charged with engaging in a continuing criminal enterprise (CCE), in violation of 21 U.S.C. § 848. Morris and Ward were also charged with money laundering, in violation of 18 U.S.C. §1956(a)(1)(A)(i) and (2). In addition to the conspiracy counts, Turnley was charged with distribution and possession with intent to distribute cocaine base on April 24, 1996, and possession with intent to distribute cocaine base on June 12, 1996.

During trial, many of the defendants' co-indictees testified, and the following details of the conspiracy were revealed. Morris was the head man in the conspiracy; his supply of cocaine started the distribution ring. His girlfriend, Ward, was said to be second-in-command. Some witnesses testified that Ward was in charge when Morris was not around; others, however, testified that she was merely present during the drug transactions, and had only a minor role. Morris and Ward, who lived in Los Angeles, California, transported cocaine to Norvell Terry in Nashville, Tennessee, and to Terry's cousin, Marcus Holder, in Indianapolis, Indiana. The quantity sold to Terry was very large, usually around 30-40 kilograms per delivery, while Holder would receive much smaller quantities, approximately 5 to 10 kilograms.

Terry would distribute 30-40 kilograms in a matter of hours, by selling fairly large quantities to many of the codefendants, including Turnley. He would collect the money, usually $22,000-$26,000 per kilogram, keep his share, and deliver the rest of the money to Morris and Ward. Terry testified regarding all of the transactions during the conspiracy time frame, and his testimony was corroborated by telephone records, and records from hotels in Nashville, where the cocaine changed hands.

The conspiracy ended in April 1995, when authorities were tipped off that Terry and Melissa Spangler, who helped Terry count money, were engaged in large drug transactions in Nashville. The transaction began at Terry's house in Nashville on April 9, 1995. Morris and Ward arrived at Terry's house and placed two large duffel bags containing 38 kilograms of cocaine in a shed on Terry's property. The bags were later transported from the shed to one Quintinia Lewis's vehicle, and then to Spangler's rented car. On the morning of April 10, 1995, Terry and Spangler moved from the Super 8 Motel to the LaQuinta Inn, and there, the police began surveillance. Later that day, Terry and Spangler met at a park, and Terry realized they were being followed. Spangler returned to the motel and was subsequently arrested. The police searched her car and discovered the 38 kilograms of cocaine.

Spangler agreed to cooperate with the police. She placed a recorded phone call to Terry, who eventually turned himself in to police. Terry then agreed to place a recorded phone call to Morris, telling him that Spangler had been arrested. Morris said he would get his people on the case to further develop the situation, thereby acknowledging his involvement with Terry and Spangler. Terry made a deal with the authorities and revealed the entire conspiracy, including the details of the conspirators' money laundering. Eventually, all the conspirators were arrested, and all but the three defendants here and Smith pled guilty and agreed to cooperate.

After a lengthy trial, the convictions were as follows: Ward was convicted of six of the seven possession counts, the conspiracy count, and money laundering. She was sentenced to 262 months in prison. Morris was found guilty of six of the seven possession counts, the conspiracy count, and the money laundering charges, but was acquitted of the continuing criminal enterprise charge. He was sentenced to 360 months in prison. Turnley was convicted of the conspiracy count and the possession charge that resulted from a search of his home on June 12, 1996, but was acquitted of the distribution that allegedly occurred on April 24, 1996. Based on his extensive criminal history, including as relevant conduct, the April 24 transaction, of which Turnley was acquitted, he was sentenced to life in prison. All three defendants challenge their conviction, and Turnley appeals his sentence as well.

II.

Ward and Turnley challenge the sufficiency of the evidence as to some, but not all, of the crimes of which they were convicted. In reviewing the district court's denial of Ward's and Turnley's motions for acquittal, we must determine, while reviewing the facts in the light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See United States v. Odom, 13 F.3d 949, 958-59 (6th Cir. 1994).

A.

Ward challenges the six counts that allege possession of cocaine prior to the April 10, 1995, transaction, which ended the conspiracy. To prove that a defendant violated 21 U.S.C. § 841(a)(1), the government must establish "that a person knowingly and intentionally distributes or possesses with intent to distribute a controlled substance." United States v. Forrest, 17 F.3d 916, 919 (6th Cir. 1994). To prove that Ward aided and abetted the drug transactions under 18 U.S.C. § 2, the government must establish that Ward participated in the venture as something she wished to bring about and sought to make succeed. See Odom, 13 F.3d at 959-60.

Ward argues that there were very few references to her in any of the testimony during the trial, and that many of the witnesses, such as Spangler, testified only to meeting Ward or that Ward assisted her with the transportation of the cocaine. However, Holder testified that he delivered drug money to Ward, received cocaine from her, and considered her to be second-in-command. Terry testified that Ward was present during most of the transactions, and that she would count the money when it was delivered. He also testified that Ward would sometimes deliver drugs, although his testimony in that regard lacked specificity. The thrust of Ward's argument is that the government has not shown that she did anything more than associate with Morris; and she claims that her presence at the drug transactions can be explained by the fact that she was Morris's girlfriend.

The government points out that to prove that Ward aided and abetted in the possession and distribution of cocaine, it need only show that Ward participated in the drug transactions in such a manner that would indicate that she had an active role in assuring that the enterprise succeeded.

While it...