United States v. Nichelle K. Davis

Michigan Septem- in its District of unnec- Western prisoner is both upon a pain 13, 1991 order. ber determining wanton. essary and rises to this prisoner’s claim whether or motivation

level, reasons excessiveness

conduct, type and used, the extent

the force considered. should be inflicted

injury v. Likewise, in Lewis 604-06.

Id. at Cir.1985), Downs, F.2d America, STATES UNITED permanent or a serious held that court Plaintiff-Appellee, a claim prerequisite anot injury was however, in de- 42 U.S.C. DAVIS, Defendant not a constitutional Nichelle K. termining or whether -Appellant. occurred, “all the had violation facts appli- surrounding the circumstances No. 92-3143. be scrutinized must cation of force Appeals, United States Court at 714. Id. weighed.” Circuit. Sixth added). (emphasis at 187 Id. Argued Sept. 1992. district the record before Given Dec. 1992. Decided say that the dis court, simply cannot we Rehearing En Banc Rehearing and judgment clear error of made a trict court Denied Feb. from the sum relief Williams The court was dismissal. mary judgment portrayed affidavits that com with Williams’ not inconsistent

facts they en guards stated

plaint. comply Williams to cell to force

tered the change clothing for his his an order to records transfer. Medical

administrative suffered no that Williams

also indicated during the altercation.

cognizable injury the facts and circum

Scrutinizing all of application of surrounding this

stances

force, judgment court made the district Fourteenth Amendment Eighth or no our limited re Given

violation occurred. appeal, particular of this

view its when it not abuse discretion

court did summary its relief from

denied

dismissal.5

III.

We, therefore, the denial of AFFIRM summary judgment dismiss-

relief from Benjamin Gib-

al issued the Honorable

son, Judge for the District that, ably may reviewing have some merit. if we were

5. We observe novo, argu- complaint de his claims Williams’

Terry (argued), of the Lehmann Office Cincinnati, OH, Atty., Bradley D. Bar- U.S. (briefed), Atty., Office of the U.S. Co- bin lumbus, OH, plaintiff-appellee. for OH, Brown, Columbus, for Steven M. defendant-appellant. SUHRHEINRICH,

Before: BOGGS GILMORE, Judges; and Senior Circuit Judge.* District GILMORE, Judge. District Senior Defendant-Appellant con- appeal, In this tends trial court erred acquittal, Rule 29 motion against the manifest that her conviction evidence, weight that the district Appel- in its determination of court erred sentencing lant’s base offense level herein, stated purposes. For the reasons judgment and sen- affirms the this Court district court. tence of the charged in four counts Appellant was by filed count indictment eighty-one an Jury 1989. Count on June Grand with charged and nine co-defendants kilograms five to distribute over of 21 U.S.C. in violation of cocaine § and one co- charged Davis and Count 8 in inter- unlawful travel defendant 1, 1989, intent May on state commerce activity in unlawful narcotics Additionally, 18 U.S.C. 1952. violation of 72 and Count charged in Count Davis was indictment, of ac- judgments but Rules Federal Rule 29 quittal under by the were ordered Procedure of Criminal motion. Appellant’s judge after jury, to a 1 and 8 were submitted Counts unani- reach a was unable to jury Appel- any counts mous verdict de- court Consequently, the district lant. mistrial, and denied clared acquittal judgment of motions for was retried The case 1 and 8. Counts September of August and * Gilmore, sitting designation. Michigan, Unit- Senior W. Honorable Horace District Judge for the Eastern District States ed Further, trial, Appellant was con- the Government must be second

At the 1 and Count the benefit of all reasonable inferences of both Counts victed evidence, more than including to distribute from the drawn circum cocaine, 8 be- and Count kilograms stantial five evidence. United States Ada illegal nar- to mo, 927, (6th Cir.1984), travel ing unlawful 742 F.2d 932 cert. activity. 1193, 971, denied, cotics 469 U.S. 105 S.Ct. 83 (1985). L.Ed.2d 975 1990, 25, the Court denied September On judgment acquit- of for Appellant’s motion Thus, this Court must determine sentencing proceeding tal, lengthy pre whether there was sufficient evidence 5, February 1991. After several on started support jury’s to verdict on sented consideration of and careful adjournments 1 and 8. If there was sufficient Counts judge, by the district sentence proper conviction, Appellant’s support evidence to determined that base district court this Court must sustain the decision of the (12) applicable was level of twelve offense Appellant’s denying district court motion under the United States Appellant judgment acquittal. for of A minor-role reduc- Sentencing Guidelines. Appellant asserts that there insuffi- under granted U.S.S.G. tion was knowledge cient evidence to establish her 3B1.2(b). The district court determined Moreover, illegal activity. Ap- of narcotics range imprisonment of pellant contends that the did Government months, and sentenced her to to 12 was 6 present sufficient evidence to show 8, 1 and on each of Counts 10 months agreed join that she Ac- addition, concurrently. In served cordingly, Appellant argues that no ration- supervised release of five was sentenced to al trier of fact could find the essential years years 1 and three on Count on Count conspiracy beyond elements a reason- of 8, concurrently Count 1. to be served doubt, considering even the evidence appeal timely A notice of was filed. in a most favorable to the Govern- ment. II

First, contends there in- Appellant Davis also asserts that her convictions as a matter of contrary weight sufficient evidence law are to the manifest conviction, support her and claims that the evidence because there was no evidence to support allegations erred in her motion district court the Government’s Second, acquittal. (1) of she judgment May transported 1989: Davis co- that, judgment money, if the the of conspiracy, claims even caine and from properly Columbus, Rule de- acquittal City 29 was New York Ohio to nied, weight Oldsmobile, the conviction was compartment secret of a blue (2) of evidence and should reversed. Davis knew or should have known traveling of an unlawful reason for from Pursuant to Rule 29 of the Feder Columbus, City. York Ohio to New Procedure, judgment al of Rules Criminal granted contentions, if acquittal support of must be “there is no In of her upon heavily upon evidence which a mind relies reasonable Cir.1992). guilt beyond (4th might fairly conclude a rea 954 F.2d 232 claims She Fawaz, pattern nearly sonable doubt.” United States v. that the fact Bell iden- (6th Cir.1989). 881 F.2d In decid tical to the facts in the instant case because ing judgment acquittal, a motion for the instant case and Bell involved both compartments, govern- district court neither the nor the court vehicles with secret may independent appeals allegations make determina mental the drivers were couriers, regarding credibility appeals of witnesses from the trial tions judgment weight or the to be such evidence. court’s denial of motions Levy, acquittal. The Bell court concluded the United States v. — U.S. —, Cir.1990), denied, presented sufficient cert. had not Government of the Defendant’s S.Ct. L.Ed.2d 1060 evidence illegal activity, nor was there sufficient Government claims that the pre- facts prove during that Defendant sented presented to second trial were evidence re- markably similar engage activity. presented during in such Ac- to those conspired to the first trial. It states cordingly, the court reversed the con- further that the Bell second trial additional spiracy conviction. evidence illegal activity. of Davis’ contrary, the Government con- To The Government also asserts that properly that the district court denied tends trial court found sufficient evidence'' to judgment acquittal, the motion for deny acquit- Davis’ motion for evidence to sus- that there was sufficient quotes tal on Count 8 and from the memo- support of its re- tain the convictions. February 13, randum and order entered on sponse, quotes from the the Government 1990, during the first trial: February court’s memorandum of ... Conviction of the Travel Act count 13, 1990, during entered the first trial and requires proof beyond a reasonable denying Appellant’s motion for doubt that the defendant did travel in acquittal. The district court stated: interstate commerce with the intention of testimony Documents and of [co-defen- promoting activity,_ the unlawful Bosley and the Defendant estab- dant] The evidence ... reveals that on or about pur- lished that blue Oldsmobile was 1, 1989, May Davis and [co-defendant] money from chased with [co-defendant] Turner drove the blue Oldsmobile from registered Fearon and was in Davis' York request Columbus New at the name. Davis admitted that on or about they Fearon and that returned in the 1,May she drove the Oldsmobile to staying same vehicle after in New York request of Fearon New York at the and relatively period brief of time. Accord- it after that she drove back Columbus ing testimony, they to Davis’ once ar- staying relatively in New York a brief in rived New York an unknown male period trip, of time. Prior to the [co- took the blue Oldsmobile and Davis and saw Fearon Andrews leave defendant] Turner were a ride in a red Acura $50,- apartment approximately their for a few blocks and then took a taxi cab $60,000, 000 to and she believed Fearon purpose to a hotel. stated that the Davis taking money was to Davis because trip pick up was to another car for [co-conspirator] Page had Fearon to told Fearon, they drove back to Columbus money. send they in same blue Oldsmobile had Intercepted suggest conversations that driven New York. Davis, during referred to the conversa- Karen, tions as was a courier for the Viewing surrounding the evidence drug organization. Page distribution trip light most to the favorable giving money and Fearon discuss to Kar- government, a reasonable mind could en, driving York Karen’s to New and conclude that Davis and Turner travelled Cincinnati, problems and various in the intention interstate commerce with Karen. Fearon tells another individual furthering the activities of the pregnant, that his usual driver is and organization, distribution and that after pregnant admitted that she was in Davis travelling in interstate commerce Davis May It is clear that defen- 1989. “[a] performed and Turner acts to guilty knowledge voluntary dant’s and enterprise. that unlawful business participation may from be inferred sur- rounding Taking circumstances.” the to- A review of the record reveals that the produced Appel- that tality of the evidence most Government evidence Government, very broad-ranging of a favorable to the a reason- lant was a member peo- juror conspiracy involving could that Davis had cocaine numerous conclude degrees of cul- ple and inten- with different roles and co-conspirators Davis’ tes- tionally participant pability. became a in its activi- Two of tified that Davis was a member of ties. great jury dict of the as a courier she acted conspiracy, and evidence. weight of this example, co-defen- For retrieved she testified Carr dant present did not It is true Government Fearon’s co-defendant $1,500.00 from of cocaine for as to the amount evidence Davis, she later watched house for There responsible. Appellant was which $1,500.00 from co-defendant receive immediately after no seizure of cocaine Moreover, of- the Government 1, 1989, Fearon. City May on trip to New York telephone conver- recorded pre- fered numerous circumstantial evidence was only members different between sations trans- sented establish illegal proof money conspiracy as between Colum- ported cocaine 1,May bus, City York activity. and New Ohio However, jury could it is clear the Gov- Appellant, trial of At the second Appellant guilty on Counts found have testimony that she ernment making a determination and without Columbus, from Oldsmobile drove blue cocaine attributable specific quantity of 1,May City on or about York to New Ohio Appellant. to the couple of hours stayed only a mind question in the Court’s There is no returning to Columbus. New York before that, in the most viewing the evidence money and that claimed The Government Government, there was to the favorable compart- in hidden secret cocaine were from which a reason- evidence sufficient vehicle, trans- and that Davis the ments of fairly guilt be- might mind conclude able money on that ported the contraband counts. reasonable doubt on both yond a that Davis was showed date. It further to establish was sufficient The evidence making trip. More- for the paid $500.00 co- conspired to distribute that presented evidence over, the Government unlawfully caine, that she and to establish cocaine was present when that Davis illegal narcotics activi- to travelled Finally, the co-defendants. by sold other did not Accordingly, the district court ty. testimony at trial as presented Government judg- Appellant’s motion for err in activity other co-defen- illegal to the Appellant’s the con- acquittal, ment narcotics dants, evidence of particularly weight the manifest viction was transactions. of the evidence. that there was suf- concludes This Court Ill convic- supporting Davis’

ficient evidence First, 1 and Count tion on Count that final contention is distinguished can that Bell be Court holds erred in its determination the district court case. In facts of the instant from the level for sen Appellant’s base offense co-conspirators testified no who there were tencing purposes. defendant, role of the precise the about extended sen- The trial court held two case two of the nine co- in the instant while At the hearings Appellant. for tencing the indicted on defendants January sentencing proceeding second a courier charge that Davis was testified judge concluded that the district Moreover, co-defen- insufficient evidence there was they saw Andrews testified dants Carr and quantity of specific trial to estimate at pay large sums Fearon co-defendant Appellant. The to the cocaine attributable intercepted conver- Finally, two money. court stated: Andrews co-defendants sations between said, by used Fearon as I’ve ... She was a that Davis and Turner corroborated with a se- of an automobile as a driver conspirator. is, while there compartment, and cret view, sufficient evi- again, Court’s Second, the evi- this Court holds member of to find she was support dence adequate is outlined above dence of- guilty of the conspiracy, is charged Rule 29 judge’s the district denial has I find that there question, in fense Further, finds the ver- this Court motion. table, presented, drug quantity at evidence and that is a insufficient been evidence, recognizes, believe, level 12. This by preponderance I least fair, emphasize participation I me to make a of the Defendant in for the co- “fair,” specific conspiracy, a fair estimate of caine her role in conspir- should be at- quantity acy, of cocaine which penalize by but it does not her en- particular Defendant. gaging- to this my speculating concerning tributed of Miss Davis’ think the circumstances larger amount of cocaine'than that called indeed, may, case are unusual drug quan- the lowest level in the apply unique attempting in terms of tity table. drug quantity table. adopting position, the trial court inability judge’s of the district Because followed the mandate of this court in Unit to estimate the amount of cocaine attribut- Walton, ed States v. — Appellant, the district court (6th .Cir.), denied, U.S. —, cert. appli- offense level applied the lowest base 532, 112 (1990), S.Ct. L.Ed.2d 542 where the drug quantity cocaine under the cable to Court said:

table, a level twelve guidelines We believe that do not permit the District 2D1.4(a) Court hold a defen- Sentencing Guide-

Section responsible dant quantity for a standard for determin- lines sets forth the drugs unless the court conspiracies: can conclude ing the offense level base likely the defendant is more than not If a defendant Base offense level: actually responsible quantity for a attempt or an convicted of a greater equal quantity than or to the involving a con- to commit an offense respon- which defendant is held substance, offense level shall trolled sible. If the exact amount cannot be object the same as if the of the con- determined, suffice, an estimate will spiracy attempt completed. had been or preponderance here also a of the evi- 2 Application Note to this Section states: support dence must the estimate. Thus ..., drug the When there is no seizure choosing when a between number of sentencing judge approximate the shall plausible drug quantity, estimates of quantity the controlled In of substance. likely of none which is more than not the determination, judge making this the quantity, correct a court must err on the consider, example, price gen- the may caution_ may side of While this re- the erally obtained for controlled sub- quanti- sult in an underestimation of the stance, records, similar financial or other cases, in ty drugs involved some few in controlled sold transactions substances believe it is nonetheless constitution- we defendant, capabil- the or by the size ally required prevent excessive sen- laboratory ity any involved. . tences. jury clearly found that the The original). Commendably, in the (emphasis cocaine, conspired to and this distribute sentencing judge appli- the selected lowest feels that the district court acted Court offense level for the sentence cable base conservatively setting in a base of- very fairly he was unable to estimate because (12). Notably, the fense level of twelve amount of cocaine attributable to the applied level judge district the lowest base Ap- Although jury the had found Davis. so, doing In applicable to offense. Davis’ conspiracy, pellant to be a member court stated: the district either the the district court did not convert inability reach I my Because of what $30,000, cocaine, from Davis’ or the seized fair, good feel in is a would conscience co-conspirators to determine the base of- estimate of the reasonable Rather, district court act- fense level. the her, charged to amount of cocaine to be setting the very conservatively in base ed respect the yet consistent and be offense level at twelve do, I I jury, which believe verdict finding that a trial court’s It is clear apply the lowest Base Of- should of a con- regarding the amount applicable to cocaine under of fact fense Level a defendant is fendant’s involvement and is for which substance trolled Giunta, enough. not accepted by must See United States v. held accountable to be 758, (4th (one Cir.1991) clearly erro- 925 F.2d cannot unless it is appeals a court “guilt by unacceptable process find an Walton, supra. This Court con- neous. therefore, speculation find- rather than a reasoned cludes, the district court’s raw wise, inferring guilt beyond clearly process did a reason- only it not ing not was doubt”). rights. any of the offend cross-appealed the has United States manner, conclusory majority the a determination, and this court’s contends that the evidence shows that de- clearly the determination Court feels conspiracy. fendant was a member of the facts of all the before reasonable points example, majority For to tele- the district court. phone conversations between other mem- reasons, showing as foregoing bers of For the Appellant are af- conspiracy. was a member of the and sentence defendant However, firmed. a review of the record shows that none of these conversations indicate SUHRHEINRICH, Judge, Circuit join that Davis intended dissenting. Likewise, or even knew of the testimony conspirators of other govern- agree that the Because I cannot a courier does not show that defendant was requisite proven the elements ment has drug defendant intended to courier. 21 U.S.C. I dis- conspiracy under § Rather, only evidence shows what sent. conspirators other intended or believed. “the a defendant To convict similarly For Other evidence flawed. prove must the existence of an government example, although defendant did receive drug laws and agreement to violate of, money conspirators, intended to from other there is no conspirator knew that each conspiracy.” accepted money participated indication that she join and Pearce, knowing payment that it was v. United States Further, Cir.1990) although (6th (quoting courier. defendant Cir.1985)), physically present during cocaine F.2d Stanley, 765 — U.S. —, sales, denied, majority points to no evidence rt. S.Ct. ce 978, 112 requires personally L.Ed.2d 1063 This that defendant was involved deliberate, had the with or even aware of these transactions. that “the defendant join Finally, although defendant travelled with knowing, specific intent conspirators City, v. other to New York conspiracy_” United States Gor Cir.1983) don, 110, (5th (em majority again identify any F.2d 114 fails to evi- 712 added). showing dence that defendant knew that phasis Circumstantial evidence transported. drugs to establish a defendant’s were may be used intent, “[sjuch analysis inferential circuits, own, including our have Several Bell, not United States v. boundless....” conspira- to convict a defendant for refused Cir.1992). 232, Although 954 F.2d 236 cy specific proof without of a defendant’s case, admittedly close I do not this is an knowledge join conspiracy. intent to a of or a reasonable mind could find believe that (evidence prov- 954 F.2d at 233-38 See intentionally knowingly that defendant ing that the defendants knew each other joined well, cocaine, possessed and were involved prove spe- aptly drug trafficking summarizes did not their majority the evi- other); government. conspire with each introduced To cific intent to dence Giunta, (evidence sure, proving naturally leads one to 925 F.2d at 767 the evidence reprehensible person” suspect defendant knew that a that “Giunta was a that selling engaged buying ring operating around her and that she who prove his intent to enter into intentionally part a of it. heroin did not had become Pearce, F.2d at However, suspicion specific conspiracy); a 912 raising a mere of de-

913 individuals, I with these would reverse de- together a defendants (finding the 162 team raid did during a SWAT fendant’s conviction. crack house existed); conspiracy United prove a not reasons, foregoing I For all the DIS- (3d 88, Wexler, 89-91 F.2d v. States SENT. act- Cir.1988) (evidence that the defendant during the movement “look-out” ed as a his containing drugs prove did not

a truck proof absent join

intent truck); the contents of the he

that knew (driving truck

Gordon, F.2d at containing mari- compartment

with hidden enough prove not

juana was conspiracy). into a had entered defendants BROWN, Plaintiff-Appellant, Karen cases differ factu- Although all of these v. remains the same: in each ally, principle Kassulke; WIGGINTON; Betty proof T. conspiracy requires John A conviction Troxell; Glover; Sherry Rosby defen- doubt that the Marie beyond reasonable Dewitt; Captain criminal Loving; into a specifically entered Linda Ann dant Stout; present- Smith; the evidence agreement. Because Deputy Warden Keith proof, I Zimmerman; Oerther; such here does contain ed Lance Damon majority’s conclusion Sullivan, with Scott; Captain agree cannot De Miles should be affirmed. that the conviction fendants-Appellees. Moreover, comes case believe No. 91-6369. expanding conspiracy dangerously close to Appeals, United States Court of wrong of association with into crime Circuit. Sixth conspira- association

people. “[M]ere participation enough to establish tors is not Dec. 1992. Argued Pearce, 912 F.2d at 162 conspiracy.” in a Decided Dec. 1243). Stanley, 765 F.2d at See (quoting (“It enough Gordon, is not F.2d at merely the defendant associated conspiracy....”); in a participating

those Cooper, Cir.1977) (3d (“One may not be con-

254-55 solely keeping bad

victed Rather, there must

company."). of and defendant’s

evidence of a conspiratorial agreement. to a

agreement (“A conspiracy 236-38 954 F.2d at

See government pre- has until the

is not shown specific agreement to of a

sented evidence crime, crimi- for the same

commit a indicted part of all purpose,

nal (emphasis original);

conspirators.”) Gor- (“[I]t enough

don, at 114 712 F.2d [is not] in a places defendant

that the evidence something activity that reeks of

‘climate of Galvan, ”) States (quoting

foul.’ United Here, (5th Cir.1982)). guilty on the basis was found

defendant engaged relationships individuals

her is no trafficking. Because there conspire defendant’s intent

evidence of

Case Details

Case Name: United States v. Nichelle K. Davis

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Feb 2, 1993

Citation: 981 F.2d 906

Docket Number: 92-3143

Court Abbreviation: 6th Cir.