United States v. Gary Odom (92-5822/5823/5827) Leonard Johnson (92-5824) Terrance Bulger (92-5825)

949 removing denied, defendants party. as 817, 498 U.S. 60, 111 112 S.Ct. Gafford Co., 150, v. (1990) General Electric 997 F.2d 155 added). L.Ed.2d (emphasis 35 See (6th Cir.1993); Wright, Charles A. Arthur A. also Kruso v. International Telephone & Miller, al., et Federal Practice and Proce Telegraph (9th Corp., 1416, 872 F.2d 1426 dure, § Vol. 3721 removing The Cir.1989), 937, 14A cert. 110 party bears the burden of demonstrating 3217, (1990), stating: joinder. Queen Majesty fraudulent Her [N]one of the individual defendants are Right the Province City Ontario v. of 874 F.2d alleged to have done anything wrongful Detroit, (6th Cir.1989). except to corporate cause the defendants statutes, moreover, Removal strictly are con to act in allegedly an wrongful manner. strued. v. Dept. Agriculture, Wilson U.S. alleged wrongs plaintiffs of which (6th Cir.1978). 584 F.2d complain corporate are all wrongs. Plain- joinder There can be no fraudulent unless tiffs do not apparently allege cannot it be clear that there can recovery no be any of the individual defendants owed under the law of the on the state cause any them duty in their capacity, individual alleged or on the facts in view of the they nor that any did act in their individual law.... or the One other at least would capacity any which violated duty such required be before it could be said that plaintiffs otherwise caused except harm as there was no get joint real intention to corporate result of acts. judgment, and that there was no colorable We case, REVERSE and REMAND this ground claiming. for so accordingly, for a diversity determination of Bobby Apartments, Garden Jones Inc. v. jurisdiction, specifically whether defendants Cir.1968). 391 F.2d Suleski Jeros and Brechtelsbauer fraudulently were question Therefore “the is whether there is joined. arguably a reasonable predicting basis for might impose the state law liability -on the facts involved.” Id. That same circuit question

restated the as whether there was

any basis for predicting “reasonable that [the plaintiff] prevail.” could Teddler v. F.M.C. America, UNITED STATES of (5th Cir.1979). Corp., 590 F.2d Plaintiff-Appellee, Plaintiff on relies Jenkins v. American Cross, Red Mich.App. 369 N.W.2d (1985), to support joinder his of Jeros Gary (92-5822/5823/5827); ODOM Leonard and Brechtelsbauer as officials of the defen- (92-5824); Johnson Terrance employer. case, dant Jenkins, In that (92-5825), Defendants-Appellants. long-time employee, black sued under the 92-5822, 92-5823, 92-5824, Nos. Rights Elliott-Larsen Civil Act for race dis- 92-5825, 92-5827. crimination, claiming a discriminatory dis- United Appeals, States Court of charge. charged Jenkins intimate involve- Sixth Circuit. ment in allegedly discriminatory termi- nation supervisor immediate Argued June 1993. director of the Red Cross office. The district Jan. Decided court, remand, on must determine Bre- Rehearing Suggestion Rehearing for chtelsbauer and Jeros are within the defini- En Bane Denied in Nos. 92-5824 employer/agent tion of Michigan under the March 92-5825 1994.* Handieappers’ Rights Civil Act Jenkins. “[A]ny questions disputed and fact and

ambiguities controlling in the state law

[should be ... resolved] favor the non-

removing party.” Carriere v. Sears Roebuck Co., (5th Cir.),

&

*Keith, Judge, grant rehearing Circuit would the reasons stated his dissent. Vincent, Atty. (argued Asst. U.S.

Van S. briefed), Williams, Atty., and Ernest W. Nashville, TN, for U.S. Odom,

Gary pro se. Lamont Barrett, (Argued and Lionel R. Jr. Nashville, Briefed), TN, Gary Lamont Odom. (argued A.

Christine Freeman TN, briefed), Nashville, for Leonard John- son. MI, Detroit, (argued), Steven Whalen

R. Bulger. for Terrance Bulger, pro se. Terrance RYAN, man, Before: KEITH and Circuit by was contacted person iden- JOINER, Judges; “G,” Senior District tified as who large quantities had Judge.** cocaine to distribute. Odom told the Tennessee open area was wide for co-

JOINER, Judge. Senior District caine. Hoffman described the sales hierar- chy evolved, stating that “G” Odom, Gary Defendants Leonard Johnson top, by Bulger, Warner, followed Hoff- Bulger, appeal and Terrance their convic man, and then a number of pro- others who and sentences for tions cocaine distribution protection vided transportation. offenses, challenging and firearm the admis co-conspirator’s grand jury sion of a testimo Hoffman further testified before the ny, allegedly prejudicial comments arranged acquisi- judge, evidentiary rulings, numerous kilograms tion of ten of cocaine which Hoff- for Severance, denial of Johnson’s motion brought man then to Nashville from Detroit sufficiency support of the evidence in June 1990. That cocaine was divided convictions, findings court’s calcu among Odom persons. and two other Hoff- lating defendants’ offense levels under the man estimated that between June and No- sentencing guidelines. addition, In Odom vember 1990 he his group trips made six appeals independent his conviction for Tennessee, to transporting approximately 50 stated, firearm offense. For reasons the we kilograms of Bulger cocaine. and Warner affirm all defendants’ convictions and the were in involved all of trips. the Hoffman sentences of Johnson Odom. and We vacate testified Odom had him gun the he that Bulger’s sentence and remand for resentenc in possession had his arrested, when he was ing. and that guarding he was in cocaine apartment

Allen’s request.1 at Warner’s I. Indictment The returned an indictment Arrests charging Allen, defendants and Smith and 2, 1991, Memphis On November law en- (a/k/a “G”) George Rider with conspiracy to forcement officers a executed search warrant (count 1, distribute §§ cocaine 21 U.S.C. motel, finding at a local posses- five men 846); Rider, defendants and Smith and Allen grams sion of 995 of and four cocaine fire- with carrying or use of a during firearm occupants room, The arms. of the Leonard drug and relation to a trafficking offense, Johnson, Johnson, Myron Allen, Channce gun based on the seized from Allen’s apart- Warner, Gilbert Smith and Carl were arrest- (count 2, 924(c) ment § 18 U.S.C. and Myron agreed ed. Johnson to assist 2); Johnson, § U.S.C. and Leonard Smith police, telling them that he knew where two and possession Allen with of cocaine with and kilograms one-half of cocaine were distribute, intent to upon based the 2385 police He apart- stored. led the to Allen’s grams of cocaine seized from Allen’s apart- Nashville, ment in where officers found (count 3, § ment 21 U.S.C. 841 and 18 U.S.C. cocaine, grams Todd Hoffman and 2385 2). § pistol .30 caliber triple and a beam scale. Hoffman’s Recantation Jury Testimony Hoffman’s Grand Hoffman was later incarcerated with Bul- initially cooperated Hoffman po- ger Odom, with the during and signed and this time lice, agreed and testify grand before the jury testimony statement that his grand was jury. He testified that was his cous- false. The typed by statement Odom’s in, Detroit, and lived in girlfriend and had supplied and then to Odom. A him According introduced to Odom. to Hoff- hearing trial, recantation prior was held ** Joiner, The Honorable Charles cooperation W. United States police, dered because with the District Court for the Eastern District of Michi- plan apart get but that the fell when he could not gan, sitting by designation. Bulger. in touch with arrest, 1. Hoffman also testified after his he plan Myron to have formulated Johnson mur- gov- testified for the Myron Johnson also grand that his maintained Hoffman Warner, Smith, ernment, and stating that and testimony concerning Odom

jury trip November made the to his testi- Leonard Johnson false, although adhered he car, while he to Nashville one Fol- from Detroit involvement. mony regarding Warner’s trip in another car. made the hearing, and Hoffman the court lowing the recantation Memphis, leaving Before Nashville motion to dismiss government’s granted the although apartment, stopped at Allen’s men preju- against Rider without the indictment Myron went into only Johnson Warner dice, all of the of- pled guilty to and Allen waited apartment, while the others charged. he was with which fenses saw Myron testified that he car. Johnson Trial apartment, well as the Hoffman at the as gun Hoffman had in his cocaine and the at trial includ- witnesses government’s The arrested. possession when he was in the investi- police officers involved ed the Hoffman, co-conspirators alleged Odom, gation and Bulger, jury convicted The Christopher Myron Williams. Johnson cocaine to distribute Johnson direct examination During government’s carrying of a firearm and of the or use Hoffman, prosecutor asked Hoffman trafficking drug to a during and relation jury, grand he had testified before offense, charged in counts 1 and as that he had testified responded Hoffman convicted Johnson indictment. The also ultimately Hoff- falsely. court admitted of cocaine with intent to distrib- possession jury testimony as substantive man’s jury acquit- charged ute in count 3. The as evidence. counts. ted Smith on all sup- that he Christopher testified Williams II. financial services plied apartments, cars and Jury Testimony co- to assist their Hoffman’s Grand to Warner Odom stated that caine distribution. Williams challenge ad All three defendants the for request apartment rented an he Odom’s testimony.2 grand jury mission of Hoffman’s Johnson, Warner, Myron Leonard testimony argue Hoffman’s that Defendants Johnson, stayed. Bulger and Smith Williams hearsay, and was admitted vio constituted Odom, cocaine to testified that he delivered lation of their Fifth and Sixth Amendment Bulger, and that he obtained cocaine from the rights process to due and to confront money Bulger to in Detroit. that he delivered against them. witnesses further that Leonard John- Williams testified 801(c) defines Federal Rule of Evidence present August 1990 when Odom son was hearsay statement offered as out-of-court $90,000 Bulger. September In to delivered prove truth of the matter asserted. the kilograms to five of stored two Warner 801(d) general excepts from this defini Rule apartment. in a cocaine safe Williams’ statements, categories specifi of tion certain cally providing him that a statement is not hear paged that testified Warner Williams say at the trial or him take if the “declarant testifies and told on November subject hearing is to cross-examination motel in Nash- triple beam scales to local statement, the so, concerning the statement and saw break ville. He did Warner (A) testi inconsistent with the declarant’s and one half kilo- approximately down two Johnson, subject to Myron mony, given under oath and was grams of cocaine. Leonard trial, perjury hearing, at a penalty Part the of present. were also Johnson and Allen proceeding, deposition[.]” or in a Fed. tes- other went to Odom. Williams of this cocaine 801(d)(1)(A). In United States him that had R.Evid. that told Warner tified Warner (6th Cir.), Distler, kilograms of cocaine to Nash- brought five 118, 70 Detroit, calcu- although Williams ville from (1981), that the this court stated greater. L.Ed.2d amount was lated the testimony of was relevant 'to the existence Although inculpatory man’s made no state- Hoffman Johnson, Johnson was convicted. grand jury the of which about Hoff- ments before the admission, evidence, grand as substantive of examination to facts inconsistent with his jury testimony grand requirements jury testimony. meets the Hoffman stated that 801(d)(1)(A) nothing of Fed.R.Evid. does not run knew about drug his deal- Thus, ings, afoul of the Constitution. he had testimony the admis- his recanted about grand jury testimony sion of Hoffman’s Odom because he destroying met was requirements 801(d)(1)(A), Odom’s life. At the of Rule conclusion of defen- Hoffman’s testimony, trial legitimate the court dants have no on admitted basis which to as sub- stantive challenge evidence the transcript its of admission as substantive evi- Hoffman’s grand jury testimony guilt. transcript dence of their and the of hearing. recantation question There is no but that Hoffman was Contrary assertions, to defendants’ the ad- present subject at trial and to cross-examina- missibility grand testimony tion, grand and that jury testimony his hinge does not on prosecutor whether the oath, subject under penalty elicited inconsistent trial testimony. Hoff- perjury. that, Defendants contend because man cross-examination, testified on prior to prosecutor did not elicit testimony admission of his jury testimony, to grand jury inconsistent with Hoffman’s testi- facts inconsistent with grand jury his testi- mony, grand jury testimony was inadmis- mony. It is immaterial prosecu- whether 801(d)(1)(A). sible under Rule tor or defense counsel elicits foundation During the government’s direct examina- testimony, long so require- as the Hoffman, prosecutor tion of asked: 801(d)(1)(A) ments Rule are satisfied. Q. Hoffman, you And Mr. did appear be- They case, were satisfied in this grand jury fore the in this matter admission Hoffman’s regarding Bulger? Terrance as substantive evidence proper. Yes, A. I did. addition, In when a witness testifies Q. you testify Did grand jury? before the at trial and labels prior testimony as A. I falsely Yes. testified. false, a sufficient inconsistency is shown to Q. you represented by Were counsel? permit the admission prior testimony.3 Yes, The witness twice A. I stated at trial that was. grand jury testimony was a lie before it was Q. you And did grand tell the jury that published jury. to the is a This sufficient Terrance is the source of co- inconsistency satisfy to Fed.R.Evid. caine? 801(d)(1)(A). (and sure, To be better the A. I grand Yes. lied to jury tell the that. effective) arguably more method is for the Q. you Did the Gary tell that proponent to elicit a re you Odom was involved with in the sponse from the witness contradicts that cocaine business? prior testimony. case, however, In this this Yes, A. sir. Another he. But did I tell questions line of unnecessary light was in of them that. the witness’ immediate statement when Q. you And did grand tell the jury that asked grand whether he testified before the Terrance became in involved jury: falsely I ‘Yes. testified.” This laid the distribution of cocaine the sum- required the foundation for the admission of mer— grand jury testimony. point, At objected this defense counsel on the Allegedly Prejudicial by the Comments grounds that prosecutor asking was Hoff- Court repeat man “perjured testimony,” to and be- prosecutor cause the had not laid a founda- challenge and Johnson comments impeachment. tion for The court trial, judge during overruled made claiming objections. these Hoffman testified on cross- that their Fifth rights and Sixth Amendment Williams, 3. See United v. inconsistency States may F.2d that swers, silence, be found in evasive an- Cir.1984), (7th rt. change position, purport- or a ce (1985) (holding change memory). ed way reconciling of may have found some thereby. review of the Our impaired were noted, however, As Hoffman’s two stories. that the court’s com- not reveal record does “ Hoffman’s Bulger himself characterized extremely high of level reached ‘the ments jury testimony “perjury” as front grand justify a new tri- necessary to interference ” (6th jury, now be heard to and he will not Nagy, 950 F.2d Ralph v. al.’ DeLuca, object accurate observation Cir.1992) to the court’s v. (quoting United States Cir.1982)). Thus, lying time or anoth- Hoffman was at one that correctly jury how court left to the er. The instances of al- the individual we consider much, testimony was any, if of Hoffman’s if judicial interference to determine leged believable. error occurred. reversible court’s are asked to focus on the cross-examina We During Hoffman’s pled that Hoffman had tion, attorney gratuitous comment Bulger’s referred to Hoffman’s grand affirmed his jury testimony guilty and at that time grand “perjured” interposed jury testimony.4 No defendant hearing. At that subsequent recantation comments, objection and no judge interjected that Hoff to the court’s point, the clarifying limiting requested á guilty him and had defendant pled man had before claims specifically instruction to address the oath that his statements be affirmed under appeal. objection prejudice now advanced on We jury true. No grand fore the were persuaded that the court’s comments judge’s comments. In ad are not made to the jury testimony, plain error under Fed.R.Crim.P. constitute mitting grand 52(b), provides “[p]lain errors or jury: court told the affecting rights may be substantial defects you up It to to decide what time he although they brought not to noticed were telling the lying and what time he is Supreme court.” As the the attention truth. instructed, recently reviewing court Court lying or the It is obvious he is one time authority not have the to reverse a does may you disregard You it all other. plain grounds unless the conviction on error may telling that he is want to. You believe defendant demonstrates that the error affect grand you truth and lied before the Normally, rights. substantial the de ed his jury. may You choose to believe he lied to specific showing fendant must make a today you and told the truth before the satisfy requirement, mean prejudice to this jury. up you to decide. That is ing must have affected the the error day, response coun- The next defense proceedings. outcome of the United States that the court had shown sel’s stated concern —Olano, U.S. -, -, Hoffman, judge emphasized disdain for 1776-78, 123 L.Ed.2d 508 Defen jury were not that his comments showing prejudice, have not made a dants how the should decide meant to indicate presume prejudice here. and we will not the case. candidly to testified that he had lied Hoffman concerned, you I have As far as are repeatedly and had lied the absolutely opinion how this case no about testifying to investigating prior officers to you decided. I will tell the law should be history, grand jury. Hoffman’s the Given you apply law to on the case and will the jury is no reason to assume that the there you facts to be. That the facts as find the of would have concluded that one version exclusively your province and not mine. it was events was more credible because hope you that. I understand Moreover, the affirmed on another occasion. judge subsequently appropriately Bulger court trial and. contends that the erred jury that his comments jury by telling instructed the were removing a fact issue from the opinion on how the obviously lying to his was at not intended reflect them Hoffman decided, another, this instruction arguing jury case should be and one time or that the Cir.1986). Christian, (6th admissible, v. was relevant and had F.2d This evidence by government. it offered United States been prejudice adequately addressed the risk acts that occurred eighteenth before his sum, birthday August resulted from his comments. In on and that failing give request court erred in to we conclude that-the court’s comments do not his . jury ed instruction that the could not constitute reversible error. consid any against er such acts him. A defendant Bulger’s argument final concerns the conspiracy prior who enters a eigh to his during Bulger’s court’s instruction cross-ex birthday teenth can be tried as an adult he agent. amination of an FBI Counsel twice continues in the after that time. agent asked the whether Williams was Such a defendant in effect “ratifies” his mem warnings during interrogation, Miranda5 bership in conspiracy. United States v. occasion, and on the informed second the court Maddox, (6th Cir.) 944 F.2d cert. jury warnings t he that Miranda — -, U.S. 112 S.Ct. required were not under the circumstances in — (1991); U.S. -, L.Ed.2d 633 questioned. Bulger which Williams was does — -, 117 L.Ed.2d claim that not court’s instruction was While a rather, but, wrong as a matter law that the defendant cannot pre-eigh be held liable for attempt instruction interfered his with to conduct, can, course, teen “such conduct alleged expectation establish Williams’ of le put post-eighteen be relevant to actions in niency, which in turn was to relevant his proper context.” Id. This claim of error has credibility. We find no error in the court’s no merit. response instruction. The trial court’s was objects Johnson further to simple nonaccusatory, obviously in elicited Bulger during codefendant dispel potential to tended confusion agent. Ques cross-examination of an FBI resulting injection from counsel’s of an extra tioning government’s good pro faith in neous issue the case. See United States v. ceeding upon to indictment based Indus., 1353, 1360-61 John Bernard 589 F.2d allegedly perjured grand jury testimony, Cir.1979). (8th Bulger’s attorney brought .up the fact that polygraph Hoffman had taken a test. On Evidentiary Issues redirect, government permitted to Bulger contends that the court erred confirm polygraph that a test had been ad denying opportunity him question to agent and that ministered continued re-cross-examination, contending Williams on speak with Hoffman after the test. No de government that the elicited new matters on objected testimony, fendant to this study re-direct. Careful of Williams’ testi court reliability cautioned the that the mony refutes this contention. Williams testi accuracy evidence, polygraph is sub fied on direct that he had seen ject dispute. to considerable No error oc apartment Nashville,' Williams had rented in testimony. curred in the admission of this money and that he had delivered impose per This court has refused to se Detroit and obtained cocaine from evidence, prohibition against polygraph record, Detroit. Based on this we find no the mere “polygraph mention the words abuse of discretion in the trial court’s limita examination” does not entitle a defendant to Dorsey tion on re-cross-examination. a new trial. The test is whether the evidence Parke, Cir.), 166-67 relevant, probative and whether its value denied, 831, 103, 493 110 U.S. 107 outweighed prejudice. the risk of unfair (1989). L.Ed.2d 67 359, Barger, States v. 931 F.2d 370 United (6th Cir.1991). case, challenged Johnson raises numerous evidentia In this First, standard, ry particularly issues. he contends that he in was evidence met this prejudiced by light cautionary the admission of of of the evidence court’s instruction.6 Arizona, tioning agent 5. Miranda v. 86 S.Ct. the FBI his efforts to corrob- about (1965). provided by 16 L.Ed.2d 694 orate information Williams prosecutor given Hoffman. The limited lati- Bulger challenged government's good explore also Johnson tude to this on re-direct. claims charging through ques- allowing testimony. faith in the defendants that the court erred in this 958 8(b) challenges the trial court’s and Odom. Rule the Federal

Johnson Procedure states that the activities and Rules Criminal admission of evidence of may Odom, charged or more defendants be in “[t]wo statements of Warner they if A the same indictment or information after Johnson’s arrest. which occurred alleged participated in are to have the same tape recording of a conversation between admitted, in act or transaction or the same series of was also con and Williams constituting request money acts or transactions an offense cerning Bulger’s alleged for preference joint or offenses.” There is a for in a cocaine transaction. Johnson obtained jury togeth trials of defendants who are indicted the court instructed the concedes that —— States, -, only An er. U.S. tape against Bulger. this United consider “ Zafiro -, 933, 937, 122 co-conspirator operating in 113 S.Ct. L.Ed.2d 317 ‘unarrested still (1993). However, conspiracy may say gov if a defendant or the furtherance of the and do prejudiced by joinder, may against ernment Rule 14 things be introduced oper permits grant if in the court to a severance or arrested one is still ” Ramos, “provide justice whatever other relief re ation.’ United States v. (6th Cir.1988), denied, quires.” cert. Fed.R.Crim.P. 14. This rule leaves U.S. 820; prejudice the determination of risk of 109 S.Ct. 103 L.Ed.2d remedy may necessary be U.S. 109 S.Ct. sound — (1989) Wentz, (quoting judge. Zafiro, discretion of the trial United States v. (9th Cir.1972)). at -, F.2d U.S. 113 S.Ct. at 939. record fully supports conspir the inference that the Zafiro, In the Court held that when acy operation was still in in the weeks imme joined properly defendants are under Rule diately following Memphis. the arrests 8(b), grant only the court should a severance find no We error the admission of this joint if “a there is serious risk that a trial evidence. compromise specific right would of one defendants, prevent jury of the or from During testimony, Hoffman’s trial making judgment guilt a reliable about the court admitted evidence that Warner had — at -, innocence.” Id. U.S. 113 S.Ct. pled been convicted and Allen had prejudice at 938. Johnson’s claims of do not jury guilty, cautioning while that this was Moreover, light meet this standard. of the “no evidence whatsoever” of the defendants’ jury acquitted fact that the co-defendant Gil guilt or innocence. of the convic Evidence counts, bert on all it Smith is evident that the tions of Warner Allen was relevant to separate was able to and treat distinc reliability trial recantation tively particu the evidence relevant to each testimony against Bulger, of his Odom and Sivils, lar defendant. United States v. particularly light of the fact that Hoffman — Cir.), F.2d origi admitted to the that he had -, 130, 121 L.Ed.2d 84 nally police lied to the and told them that find no We abuse discretion gun him Warner had with which he court’s denial of Johnson’s motions for sever arrested, police at that because time the ance, and decline reverse his convictions were unaware of Odom. While this evidence on this basis. potential prejudice, had the the court adequately addressed that concern with its Sufficiency of the Evidence limiting instruction. testing sufficiency In We have considered the balance of John- evidence, reviewing court must view the evidentiary claims son’s error and find evidence and all inferences therefrom in the

them without merit. light government. A most favorable to the Denial of Johnson’s Motions for Severance “any upheld conviction will be rational argues prej Johnson that he was trier of fact could have found the essential by joinder beyond udiced of his trial with that of of the crime a elements reasonable However, faith, juiy good government's being the court instructed the that it on the and not as only proof could consider the as it reflected of the statements themselves.

959 307, Virginia, conspiracy Jackson v. 443 U.S. that each member of the doubt.” realizes 2781, 2789, 319, 61 L.Ed.2d 560 joint 99 S.Ct. enterprise, he is in a participating (1979) (emphasis original). In order to even he does not know the identities drug conspiracy, government a establish many participants.” of the United States v. existed, prove conspiracy that a must (6th Paulino, 739, Cir.), 935 F.2d 748 cert. — conspiracy, the accused knew of the and that denied, 315, 323, 116 U.S. -, 112 S.Ct. knowingly voluntarily joined he it. The 257, 660, L.Ed.2d 112 S.Ct. — government need not that a defendant show (1991); -, U.S. 112 S.Ct. 116 aspects participated conspiracy, all of the (1992). Accord, L.Ed.2d 787 United v. States conspiracy and the connection to the need Lee, (6th Cir.1993). 991 F.2d 349 Based only slight, be if there sufficient evidence is. principles, conspiracy on these we affirm the beyond to establish that connection a reason convictions of and Johnson. Barrett, able doubt. v. United States 933 (6th Cir.1991). F.2d 359 a conspir Once challenge These two defendants also exist, acy is shown to the Pinkerton doctrine 2 possession their count convictions for of a conspirator permits the conviction of one for during drug firearm and in relation to a conspirators the substantive of other offense 924(c). trafficking § offense under 18 U.S.C. during committed and in furtherance of the persuaded We are not alleged that Johnson’s conspiracy, even if the offense not is conspiracy, minimal role in the or that Bul object conspiracy. United States v. ger’s alleged ignorance of the existence of (6th Christian, Cir.1991), 942 F.2d 367 charged 2, provide the firearm in count a — denied, —, 905, 116 112 cert. U.S. S.Ct. basis on which to reverse their convictions. (1992) (citing L.Ed.2d 806 Pinkerton v. Unit drugs The nexus between and firearms has States, 640, 646-47, ed 328 66 U.S. S.Ct. acknowledged large quantities been when (1946)). 1184, 90 L.Ed. 1489 conspiracy. cocaine are involved in a Chris tian, 942 liability F.2d at 368. Pinkerton challenge and Johnson their may imposed substantive offense be if the convictions, conspiracy contending that there reasonably foreseeable as a nec offense conspiracy was a variance between the essary consequence or natural of the unlaw charged conspiracy proved at trial. Pinkerton, agreement. ful United defendants, States According multiple possible 640, 648, 1180, 1184, 66 existed, conspiracies and the government agree L.Ed. 1489 We with the prove participation failed to their in the con Diaz, spiracy charged. disagree. court’s observation United States v. We Count Cir.1988), charged the indictment defendants and Rid er, Allen, conspiring Smith with .to dis 104 L.Ed.2d (1989), industry tribute cocaine in the Middle District of illegal drug Ten that “the is nessee dangerous, between June and November ... a violent When an business. prove and the evidence was sufficient to this conspires part in a individual take street charge. Hoffman testified to how the distri involving kilogram transaction of cocaine conspiracy quanti bution and to the $39,000, started certainly quite worth it reasonable brought by “group” into Tennessee their weapon to assume that a of some kind ties would between June and tes November. Williams be carried.” provided, tified to the essential services he Finally, challenges his Johnson and to the involvement of and John § count 3 conviction under 18 U.S.C. 841 and possibility son in that multi Tennessee. possession § 2 for of cocaine with U.S.C. ple conspiracies existed addressed distribute, upon intent to the cocaine instruction, based multiple the court’s apartment. from Allen’s Constructive seized accuracy challenged by not which is Moreover, possession is shown when the defendant determining defendants. knowingly power had the and intention at a single whether the evidence showed con spiracy multiple conspiracies, time to exercise dominion and control or it must be object, directly through drug conspira remembered that in a “chain over an either Reeves, issue, cy” enough F.2d such as the one at “it is others. United States v. 960 (6th denied,

1101, Cir.), cert. 479 ment. also that on another 1105 U.S. Williams testified (1986). 463, 107 93 L.Ed.2d occasion he saw Warner break down a kilo- S.Ct. 408 Aiding abetting liability gram present. under 18 of cocaine U.S.C. when Johnson was § proper kilogram fig- 2 when the defendant associates These amounts exceed five “whereby by in himself with a venture a manner ure found the trial court. The record participates something supports he in it as that he further a conclusion that defen- dants, by bring particular, wishes to and seeks his acts about Odom were Martin, personally to make succeed.” States v. involved in United distributions Cir.1990), greater 920 F.2d 348 cert. de amounts of cocaine far than five kilo- —nied, -, grams. supports U.S. 111 S.Ct. The evidence the conclu- (1991). supports properly L.Ed.2d The evidence sion that defendants are held ac- cocaine, constructively kilograms the conclusion that Johnson countable for 5 to 15 possessed kilograms being reasonably the five of cocaine this the amount which was Detroit, brought part to Nashville from foreseeable to them and in furtherance of the activity they agreed which was broken down and distributed at a criminal to undertake. comment, (n. 1) (1991). motel, 1B1.3, part § Nashville of which was stored at U.S.S.G. apartment, part Allen’s of which was transported Memphis.

then therefore We Leadership Four-Point Enhancement affirm Johnson’s conviction. The district court enhanced Bul ger’s base offense level under U.S.S.G. Sentencing Issues 3B1.1(a) (1991), § provides that if the organizer defendant “was or leader of a Amount of Cocaine activity criminal that involved five or more The district court found all three extensive,” participants or was otherwise responsible defendants kilograms for 5 to 15 by base offense level should be increased 1B1.3,7 § of cocaine under U.S.S.G. conclud four levels. There are numerous factors ing party that defendants either awere to or determining which the court is to consider in were aware of distributions in at least this leadership appro whether enhancement is finding amount. This resulted in a base priate, including the defendant’s decision- offense level of 32 for each A defendant. making authority, partic the nature of his findings district court’s of fact on the amount offense, ipation in the and his recruitment of of cocaine for which a defendant is to be held comment, (n. 3B1.1, accomplices. § U.S.S.G. supported by prepon accountable must be 3). evidence, accepted derance of the and will be by clearly this court unless erroneous. determining Unit When whether defendant’s Walton, ed States 908 F.2d 1300- base offense level should be enhanced due (6th Cir.), denied, offense, cert. alleged leadership 498 U.S. role it is 273, 112 989, 990, S.Ct. L.Ed.2d essential that findings the court make re- (1990). 112 L.Ed.2d garding We guide- factors mentioned record, carefully have examined the and con lines and state its reasons for its determina- case, findings clude that the district court’s only are tion.8 In this the record shows supported therein. Williams testified that highly placed was a middleman him kilograms supplier Warner told that five of co between the distributors Ten- brought early caine were findings into Tennessee nessee. regard- The court made no November, although personally ing leadership Williams con the factors relevant enhancement, cluded that ship- more was involved in that and set forth no reasons for its requires Range, 7. Section IB 1.3 that a defendant's base See United States v. - offense level be (6th Cir.1992), -, determined with reference to conduct,” "relevant which is defined to include (1993) (holding conduct of others "in furtherance of execu- precise trial court should set forth reasons for its jointly-undertaken activity tion of the criminal impose justice decision to the obstruction of en reasonably that was foreseeable the defen- hancement). comment, 1B1.3, (n. 1) § dant.” U.S.S.G. KEITH, the should Judge, concurring part conclusion enhancement be Circuit in dissenting part. and enough imposed. This is not to review. We issue, remand as to on this and state I majority’s concur the decision affirm- express opinion that we do not on the ing Appellant Odom’sfirearm pur- conviction ultimate resolution of this issue. 924(a)(2) §§ suant to 18 922(g)(1) U.S.C. Appellant pos- Johnson’s conviction for session of cocaine in violation of 18 U.S.C. III. §§ similarly 841 and 2. I concur in the majority’s decision Bulger’s to vacate sen- 92-5827, In ap case No. Odom tence and resentencing. remand for peals his firearm conviction under 18 U.S.C. 924(a)(2), however, 922(g)(1) disagree, §§ I proscribe majority’s with the regarding grand jury conclusions Hoffman’s knowing possession the unlawful and of a testimony. testimony impacts Because this affecting firearm in or commerce. That of convictions, conspiracy the and the related possession fense was based on Odom’s of a firearms Appellants, convictions of all I re- gun August 9mm charged and was spectfully portion dissent from the separately and tried from the offenses dis opinion affirming the convictions. appeal, argues cussed above. On Odom 7, 1992, January improperly the district court denied his mo On court the held a hear- ing at which judgment Todd Hoffman acquittal tion for and inade testified that his previous statements before the quately charged jury regarding the implicating Appellants Bulger and Odom knowledge element of the offenses. majority were lies. The found Hoffman’s jury The evidence was sufficient for the to testimony sufficiently at inconsistent find the essential elements of the offense grand jury testimony with his lay charged. stopped, When Odom he told required foundation for the admission of the car, police gun officer he had a in the grand jury testimony. disagree I because no directing bag the officer to a black leather inconsistencies were elicited until after the containing the and an airline ticket in grand jury testimony. introduction of the gun jury required Odom’s name. The instruction only response inconsistent consist- jury response question a possessed determine that Odom ed of to a about his grand jury testimony. Only question after a knowingly, meaning voluntarily the firearm which introduced his earlier did intentionally, and not because of mistake prior testimony by Hoffman “contradict” the instruction, or accident. This whether stating prosecutor, by he had lied. The di- in isolation viewed or combination with the rectly asking testimony, Hoffman about his instruction, possession constructive left no grand jury testimony introduced the before jury room for regarding to be confused any inconsistencies and thus before he a laid knowledge element of the offenses. The proper foundation. Tennessee, firearm was not manufactured in 801(d)(1)(A), prior Under Rule a statement and therefore had travelled interstate hearsay witness is not the declarant stipulated commerce. Odom at trial that he trial, subject testifying after at to cross-ex- felony had been convicted of a in 1982. We amination, gives testimony contradicts or in- find no error in the district court’s denial prior consistent with such statement. Addi- acquittal Odom’s motion for or in the tionally, prior statement must have been instructions, and therefore AFFIRM his con- subject penalty under oath and viction in case No. 92-5827. trial, perjury hearing, deposition at stated, For the reasons we AFFIRM the ease, proceeding. other In the instant defendants, convictions of all and the sen- prosecutor’s review examination of tences of defendants Odom and Johnson. Hoffman that Hoffman reveals made no Bulger’s We VACATE sentence and RE- statements trial that contradicted his earli- MAND hearing imposition for a on the grand jury. er statements before leadership government any enhancement. did not ask Hoffman sub- responses alleged co-conspirator sufficiently questions

stantive which elicited of an is not jury testimony. with his requirement inconsistent rehable to meet the of the Con- Instead, prosecutor lay proper failed to a frontation v. Clause.” United States Gomez- foundation, began questioning Lemos, (6th Cir.1991) (cit- Hoffman 326, 332 grand jury testimony eliciting States, on his before ing Bruton v. United 88. U.S. any testimony (1968)). trial from Hoffman that was S.Ct. 20 L.Ed.2d 476 The grand jury testimony. inconsistent with that co-conspirator Court has reasoned that a has “strong implicate a motivation to the defen- majority The states: himself,” dant and to exonerate and there- assertions, Contrary ad- to defendants’ fore, co-conspirator’s concern- statements missibility grand jury of Hoffman's testi- ing suspi- the defendant should be viewed mony hinge prose- on whether the does not Illinois, ciously. Lee v. 476 U.S. testimony. cutor elicited inconsistent (1986) 2056, 2062, 106 S.Ct. 90 L.Ed.2d 514 cross-examination, Hoffman on testified States, (quoting Bruton v. United at prior grand jury to the admission of his (White, J., dissenting) S.Ct. testimony, to facts inconsistent with his (citations omitted)). Because Hoffman’s tes- grand jury testimony. It is immaterial timony grand jury, Appel- before prosecutor whether the or defense counsel opportunity lants did not have an to cross- testimony, elicits the foundation for the so alleged co-conspirator examine him.1 As an long requirements as of Rule drug in á ring, distribution Hoffman had 801(d)(1)(A) They are satisfied. were sat- ample Appellants reason to blame the in an case, isfied in this and the admission of suspicious effort to vindicate himself. The grand jury testimony Hoffman’s as sub- by nature of his statements is evidenced proper. stantive evidence was proceed- fact that he recanted them at a later disagree majority’s I with the assertion that ing. falsely Hoffman’s statement of “Yes. I testi- fied,” false, labeling prior testimony his as Clearly, the admission of Hoffman’s inconsistency per- established sufficient jury testimony allowed an error of a constitu- 801(d)(1)(A). mit under admission Rule Appellants’ tional dimension to occur at the proper Hoffman’s statement was not a sub- Further, trial. in this case the admission of response for a stitute true from the witness testimony Hoffman’s was not harmless error. Thus, contradicting prior testimony. un- testimony govern- The was crucial to the der Rule testimo- proof conspiracy, directly impli- ment’s of the ny hearsay. constituted inadmissible cating Appellants co-conspirators. as conspiracy The upon improp- convictions rest The Confrontation Clause the Sixth erly therefore, hearsay they admitted should guarantees right Amendment of an ac- be reversed. I conspira- Because believe the prosecution cused a criminal to be con- cy reversed, convictions must be the firearm against fronted with the witnesses him. convictions in connection with the purpose main “[T]he and essential of con- must also be reversed.2 opponent frontation is to secure for the opportunity of cross-examination.” Davis v.

Alaska, 308, 315-16, 415 U.S. (1974) (quoting 5 J. ¶ (3d

Wigmore, p. Evidence ed.

1940)). Supreme consistently Court “has con-

cluded that the uneross-examined Johnson, Although Appellant Appellants Leonard unlike 2. were convicted for use of a firearm Odom, Appellants Bulger conspiracy, not mentioned in connection with the under Pinker- States, 640, 646-47, grand jury testimony, name in Hoffman's this ton v. United 1180, 1184, government’s evidence was still crucial to the 90 L.Ed. 1489 Under doctrine, proof conspiracy, Appellants of which all the Pinkerton a defendant can be found guilty were convicted. substantive offenses of his co-con- America, Plaintiff- STATES of

UNITED

Appellee, Cross-Appellant,

Jeffrey WHALEY, Defendant- Thomas Cross-Appellee.

Appellant, 92-6397,

Nos. 92-6542. Appeals, Court of

United States

Sixth Circuit.

Argued Oct. 1993.

Decided Jan. Dake, Schmutzer, Atty.,

David G. Ed briefed), Atty. (argued Office Asst. U.S. Knoxville, TN, Atty., for U.S. of the U.S. (argued Anthony Philip Lomonaco briefed), Zuker, Knoxville, TN, Vaughan & Jeffrey Whaley. Thomas conspiracy. spirators provided during were and in offenses committed furtherance

Case Details

Case Name: United States v. Gary Odom (92-5822/5823/5827) Leonard Johnson (92-5824) Terrance Bulger (92-5825)

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Mar 1, 1994

Citation: 13 F.3d 949

Docket Number: 92-5822, 92-5823, 92-5824, 92-5825, 92-5827

Court Abbreviation: 6th Cir.