Zolicoffer v. United States
| Decision Date | 07 August 2017 |
| Docket Number | Case No. 1:15-CV-1032 |
| Parties | MARCUS DELANE ZOLICOFFER, Movant, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Western District of Michigan |
HON. JANET T. NEFF
This matter comes before the Court on Movant Marcus Zolicoffer's motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255. (ECF No. 1.) On January 19, 2016, the Government filed a response in opposition. (ECF No. 13.) For the reasons that follow, Movant's § 2255 motion is denied.
On August 8, 2012, a grand jury returned an indictment charging that, from in or about early 2008 until in or about February 2009, Zolicoffer,"did knowingly and intentionally combine, conspire, confederate, and agree together and with others known and unknown to the Grand Jury to distribute 280 grams or more of . . . cocaine base, a Schedule II controlled substance," in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A). (United States v. Zolicoffer, No. 1:12-cr-194 (W.D. Mich.), Indictment, ECF No. 1.) On January 24, 2013, the Government filed an information and notice of prior felony drug conviction. (Id. at ECF No. 39, PageID.158-59.) Zolicoffer had a prior felony drug conviction in Michigan for delivery of cocaine in 1994, for which he received a sentence of 7 to 20 years in state prison. (Id. at ECF No. 39, PageID.158-59; Id. at ECF No. 55, PageID.264.)
Zolicoffer's two-day trial began on February 4, 2013. The Court heard testimony from several witnesses, including one of Zolicoffer's customers, Michael Newman. Newman testified that he spent between $600 and $800 every two weeks on crack cocaine, which he bought from Zolicoffer, Zolicoffer's distributors, or others. (Id. at Trial Tr. II, ECF No. 66, PageID.530.)
Jamie Kozlowski, one of Zolicoffer's associates, also testified. In 2008, she agreed to allow Zolicoffer to stay at her house—using and selling crack—in exchange for help with her bills. (Id. at Trial Tr. I, PageID.487-88, 491.) In the spring of 2008, Jerry Boss, Zolicoffer's co-defendant, began going to Kozlowski's house to sell crack to Zolicoffer, and spoke with Zolicoffer about dealing crack in Traverse City. (Id. at Trial Tr. I, PageID.441-42.) Boss started delivering half an ounce of crack to Zolicoffer at Kozlowski's house, and customers came to the house to purchase crack from Zolicoffer. (Id. at Trial Tr. I, PageID.442-43.)
During the summer of 2008, Kozlowski drove Zolicoffer to 10 or more locations a day to sell half a gram or one gram of crack, and Zolicoffer always carried at least 3 and a half grams of crack on his person. (Id. at Trial Tr. I, PageID.488-90.) More than 10 times, Kozlowski weighed the crack for Zolicoffer: 5 and a half grams weighed into individual grams or half grams, although Zolicoffer's grams weighed .8 of a gram. (Id. at Trial Tr. I, PageID.495-97.) Zolicoffer would package a half ounce of crack, which is 12 grams, into .8-gram packages to sell for $100, and would keep the .2 gram left over from each. (Id. at Trial Tr. I, PageID.443-44.)
From July 2008 through February 2009, Boss testified that he went to Traverse City every other week with one or two ounces of crack each time. (Id. at Trial Tr. I, PageID.444.) Typically, Boss traveled to Traverse City on a Thursday, and gave Zolicoffer enough crack to cover Zolicoffer's orders. Boss would stay at a hotel with the rest of the crack until Zolicoffer ran out and called Boss for more, and then Boss would take more crack to Zolicoffer. (Id. at Trial Tr. I, PageID.452.) Boss would return to Grand Rapids on Sunday, or whenever the two ounces of crack was gone. (Id. at Trial Tr. I, PageID.453.) Boss paid about $2,200 for two ounces, and Zolicoffer paid him about $5,000 for that amount. (Id.) Then Zolicoffer would package the crack in .8-gram increments, which he sold as a gram for $100. (Id. at Trial Tr. I, PageID.443-44, 454.) In addition to selling, Zolicoffer also used crack, but Boss did not. (Id. at Trial Tr. I, PageID.457-58.) During cross-examination, Boss confirmed that his agreement to distribute over 280 grams of cocaine in Traverse City was only with Zolicoffer. (Id. at Trial Tr. I, PageID.468-71.) Boss sold all of the crack that he took with him to Traverse City to Zolicoffer, with the exception of small quantities that Boss sold to Zolicoffer's associates, Kozlowski and Lowe. (Id. at Trial Tr. I, PageID.447-48, 459-60, 468-69.)
In late 2008, Zolicoffer moved out of Kozlowski's house and began selling crack from the house of Connie Lowe. (Id. at Trial Tr. I, PageID.446.) Lowe was a crack-cocaine addict who had met Zolicoffer in 2008; she purchased between half a gram and three grams of crack cocaine from him for $100 a gram every other week. (Id. at Trial Tr. I, PageID.407-09.) Lowe moved into a home on Silver Shores in Traverse City in August 2008, and about three weeks after she moved, she began letting Zolicoffer use her car and house in exchange for crack cocaine. (Id. at Trial Tr. I, PageID.407-11.) Zolicoffer paid Lowe one gram of crack cocaine each time he used her car for aday or two, and he also gave her one to two grams each time she let him use her house to distribute crack cocaine. (Id. at Trial Tr. I, PageID.407-12.) Lowe often saw Zolicoffer with an ounce of crack cocaine at her house, and sometimes Zolicoffer cooked cocaine into crack cocaine there. (Id. at Trial Tr. I, PageID.415-16.) She testified that her crack-cocaine addiction worsened when Zolicoffer "started using my car and started having people come to my home and was feeding me dope like candy." (Id. at Trial Tr. I, PageID.426.) She explained that Zolicoffer "was bringing people into my home and literally took over my home[.]" (Id.)
Another witness, Rachel Oblinsky, testified about Zolicoffer and Boss dealing crack cocaine together during this time. (Id. at Trial Tr. II, PageID.540.) In 2008, Oblinsky traveled to Grand Rapids with Boss and Zolicoffer to get crack. (Id. at Trial Tr. II, PageID.541-42.) Oblinsky carried at least two ounces of crack on her person during the trip back to Traverse City. (Id. at Trial Tr. II, PageID.544.)
Randall Bambeneck, Lowe's fiancé, also testified about Zolicoffer and Boss selling crack cocaine from Lowe's house. (Id. at Trial Tr. II, PageID.512-13.) From late December 2008 to February 11, 2009, Bambeneck purchased more than 50 grams of crack from Zolicoffer and Boss at Lowe's house. (Id. at Trial Tr. II, PageID.514, 517-18.)
On February 10, 2009, around 8:30 p.m., Police Officer Karen Shipley, acting undercover, was involved in a $250 purchase of 3.5 grams of crack cocaine from Lowe at Kim Roth's house. (Id. at Trial Tr. I, PageID.373-74, 388.) Officer Shipley provided Roth the $250, which had been photocopied to record the bills' serial numbers. (Id. at Trial Tr. I, PageID.373-75.) After the crack-cocaine purchase, surveillance officers followed Lowe when she left Roth's house. (Id.) Lowe tookthe money back to her house and gave it to Zolicoffer. (Id. at Trial Tr. I, PageID.417.) That evening, Boss and Zolicoffer were at Lowe's house, and Zolicoffer and Kozlowski had an ounce of crack cocaine that they were weighing out and bagging up. (Id. at Trial Tr. I, PageID.418, 427, 429-30.)
Around 2:00 a.m. on February 11, the police executed a search warrant at Lowe's house. (Id. at Trial Tr. I, PageID.381.) Just before the police arrived, Lowe testified that Zolicoffer received a phone call and started to shout something like "put your stuff away" or "clean house." (Id. at Trial Tr. I, PageID.419.) The police found nine people in the home, including Lowe, Zolicoffer, Boss, Kozlowski, Newman, and Sabrina Dedrick. (Id. at Trial Tr. I, PageID.381-82.) An officer searched Boss and found a large amount of currency in his front pocket; a comparison of the serial numbers confirmed that Boss had $240 of the $250 the uncover agent gave Roth to purchase the crack cocaine from Lowe earlier that evening. (Id. at Trial Tr. I, PageID.384-86.) Officers also discovered 32 grams of crack cocaine inside Dedrick's body. (Id. at Trial Tr. I, PageID.399-402.)
During trial, Boss testified that a woman drove him and Dedrick to Traverse City on February 10, 2009, and Dedrick carried Boss's crack on her person in case they were stopped by the police. (Id. at Trial Tr. I, PageID.449.) The woman drove Boss to Lowe's house, and Boss gave Zolicoffer one half ounce of crack and Dedrick continued to hold the remaining 32 grams. (Id. at Trial Tr. I, PageID.450.) Zolicoffer paid Boss $550 for the half ounce of crack, which Boss put in his pocket. (Id. at Trial Tr. I, PageID.450-51, 461.) Minutes before the police arrived, Zolicoffer received a phone call that said the police were coming. (Id. at Trial Tr. I, PageID.454.)
Kozlowski testified that she was at Lowe's house on February 11, 2009, because she was there to purchase an ounce of crack from Zolicoffer. (Id. at Trial Tr. I, PageID.480-81.) When Kozlowski arrived at Lowe's house, she waited with Zolicoffer for Boss to bring the crack. (Id. at Trial Tr. I, PageID.482.) Boss arrived, and Zolicoffer gave Kozlowski half an ounce of crack, which Kozlowski took into a back room to weigh and package it. (Id. at Trial Tr. I, PageID.482, 502-03.) Zolicoffer told her that she should make each package weigh .7 grams, so that she could make more money. (Id. at Trial Tr. I, PageID.483.) The .7-gram packages would be sold as grams for $100 a piece. (Id. at Trial Tr. I, PageID.484.) When Zolicoffer announced that the police were on their way, Kozlowski threw the half ounce of crack into the washing machine. (Id.)
After the police searched her home, Lowe pleaded guilty to maintaining a drug house and delivery of cocaine in state court; she was paroled in November 2009. (Id. at Trial Tr. I, PageID.419-20, 424-24.) Boss, who was named in the federal indictment charging Zolicoffer, pleaded guilty to conspiring with Zolicoffer to distribute 280 grams or more of cocaine base from in or about...
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