626 F. App'x 579
6th Cir.2015Background
- Freeman‑Payne purchased multiple kilograms of cocaine from co‑conspirator Jose Rios and introduced Rios to Alexis Rodgers; transactions included purchases of 1–2 kg and coded phone communications referring to kilograms as “guys.”
- Wiretaps captured calls in which Freeman‑Payne discussed increasing supply; March 25, 2010 call forms basis for § 843(b) charge.
- Police recovered drug‑dealing indicia (digital scales, baggies, cutting agent) and 35.9 grams of cocaine from Freeman‑Payne’s aunt’s home; officers also found drugs, scales, and two cell phones at a Belleville residence where Freeman‑Payne was present.
- A grand jury indicted Freeman‑Payne on conspiracy to distribute >5 kg of cocaine (21 U.S.C. §§ 841(a)(1), 846) and unlawful use of a communication facility (21 U.S.C. § 843(b)).
- At trial co‑defendants Rios and Alexis Rodgers testified for the government under cooperation agreements; the jury convicted Freeman‑Payne on both counts but attributed less than 500 grams to him and acquitted co‑defendant Larry Rodgers.
- At sentencing the district court applied Amendment 782 (reducing base offense level from 14 to 12 for ≤50 g), imposed concurrent six‑month terms and three years’ supervised release; Freeman‑Payne appeals claiming insufficiency of evidence, motion for new trial error, incorrect Guidelines application, and ineffective assistance of counsel.
Issues
| Issue | Freeman‑Payne's Argument | Government's/Trial Court's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for conspiracy (21 U.S.C. § 846) | Evidence at most shows use/possession, not dealing or agreement; no direct records linking him to sales | Physical evidence, wiretaps, and co‑conspirator testimony established agreement, intent, and participation; circumstantial evidence suffices | Conviction affirmed: evidence sufficient when viewed in light most favorable to prosecution (Jackson standard) |
| Sufficiency for unlawful use of a communication facility (§ 843(b)) | March 25 call ambiguous; no proof he agreed to facilitate increased supply | Wiretapped call shows intentional use of phone to discuss and facilitate expanded distribution; facilitation can be shown absent immediate transaction | Conviction affirmed: call facilitated conspiracy (circuit precedent allowing no immediate transaction) |
| Motion for new trial under Rule 33 (verdict against manifest weight) | Jury’s attribution of <500 g and acquittal of co‑defendant show witnesses were discredited; verdict against weight of evidence | District court acted as 13th juror, weighed credibility, and found verdict not against manifest weight; reversal only for abuse of discretion | Denial of new trial affirmed: no abuse of discretion; not extraordinary preponderance against verdict |
| Application of Amendment 782 to offense level | Base offense level should be 10 because actual attributable quantity was 14 g, so 2‑level cut below 12 applies | Amendment 782 revised Drug Quantity Table; any offense ≤50 g now yields base level 12, no further reduction to 10 based on smaller sub‑quantities | Appeal denied: base offense level 12 is correct under Amendment 782 |
| Ineffective assistance of counsel | Counsel allegedly ineffective at trial | Record on direct appeal insufficiently developed to adjudicate ineffective‑assistance claim | Court declines to address ineffective assistance on direct review; remand or collateral attack appropriate |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for sufficiency of evidence review)
- Abuelhawa v. United States, 556 U.S. 816 (2009) (definition of "facilitate" under § 843(b))
- United States v. Napier, 787 F.3d 333 (6th Cir. 2015) (de novo review of sufficiency challenges)
- United States v. Soto, 794 F.3d 635 (6th Cir. 2015) (co‑conspirator testimony may suffice to prove conspiracy)
- United States v. Warman, 578 F.3d 320 (6th Cir. 2009) (slight connection and circumstantial evidence can establish conspiracy participation)
- United States v. Hughes, 505 F.3d 578 (6th Cir. 2007) (district judge may act as a thirteenth juror in Rule 33 weight‑of‑evidence review)