United States v. Cruz, 4th Cir. (2000)
United States v. Cruz, 4th Cir. (2000)
No. 98-4471
No. 98-4485
charge the government must prove that: (1) the defendant committed
a felony violation of the federal drug laws; (2) the violation was part
of a continuing series of violations of the drug laws; (3) the series of
violations were undertaken by the defendant in concert with five or
more persons; (4) the defendant served as an organizer, supervisor, or
in some other management capacity with respect to these persons; and
(5) the defendant derived substantial income or resources from the
continuing series of violations. See United States v. Ricks, 882 F.2d
885, 890-91 (4th Cir. 1989). Malone claims that the evidence was
insufficient on elements three, four, and five.
With respect to element three, direct testimony from former
Malone lieutenants shows that Malone had at least five people
actively distributing drugs at his command. With respect to element
four, there is considerable evidence that Malone was in a top leadership position. He superintended the acquisition of (wholesale) drug
supplies and repeatedly gave others, such as Jemison and Woodhouse,
directions on when and where to distribute the drugs on the retail side.
Last, as to element five, there was evidence that Malone handled tens
of thousands, if not hundreds of thousands of dollars, of illegal drug
money. The jury was therefore able to conclude that Malone derived
substantial income from the continuing series of drug violations. All
in all, there was sufficient evidence to support the jury's verdict that
Malone was operating a CCE.
C.
Jemison contends the district court committed reversible error
when it allowed a defense witness to identify him on crossexamination. Another defendant, Wilson, called A.L. Pittman, a Norfolk police officer who worked in Grandy Park between 1995 and
1997. (Grandy Park was one of the areas in Norfolk where the drug
conspiracy operated.) On direct examination Pittman described how
he policed the Grandy Park neighborhood and how he became familiar with the residents and those who visited there. Pittman could not
identify Wilson or place him in Grandy Park. On cross-examination
a government lawyer (over objection) asked Officer Pittman if there
was anyone in the courtroom whom he had seen visiting in Grandy
Park. Pittman identified Jemison. Jemison contends that the question
was improper because it went beyond the scope of direct examination.
6
See Fed. R. Evid. 611(b); United States v. Harbour 809 F.2d 384,
387-88 (7th Cir. 1987). Even if the question was improper, it was
harmless error for the district court to allow it to be answered. See
United States v. Johnson, 71 F.3d 139, 146 (4th Cir. 1995). There was
a great deal of direct evidence that Jemison was one of Malone's key
operatives. The jury would not have been unduly swayed by Officer
Pittman's simple identification of Jemison as a visitor to Grandy Park.
D.
Woodhouse, Jemison, Wilson, and Cruz contest the drug weights
attributed to them at sentencing. In making its findings on drug
weights, the district court relied on trial evidence, information from
the presentence reports, and the direct testimony of several witnesses
at the sentencing hearing. The district court's findings were not
clearly erroneous. See United States v. Daughtrey, 874 F.2d 213, 217
(4th Cir. 1989).
E.
Malone, Woodhouse, Jemison, and Cruz contest the district court's
enhancement of their sentences, but their arguments are without
merit. Malone, Woodhouse, Jemison, and Cruz argue that the district
court erred in enhancing their sentences under U.S.S.G. 2D1.1(b)(1)
for the possession of firearms during the course of the conspiracy.
One of Malone's buyers testified that Malone had a gun every time
he (the buyer) bought heroin from Malone. A witness testified that
Woodhouse carried a gun in 1991 and 1992 and at times kept a gun
on the table along with his heroin supply. Two witnesses testified that
Jemison kept guns at hand as he engaged in drug trafficking. When
Cruz's house was searched, two guns and drug paraphernalia were
found in his master bedroom. Based on this evidence, the firearms
enhancement was appropriate.
Cruz argues separately that there was insufficient evidence to support the district court's two-level enhancement of his sentence for
being an "organizer, leader, manager, or supervisor" in the conspiracy. See U.S.S.G. 3B1.1(c). Santos testified that on a regular basis
he packaged heroin for Cruz, delivered it to buyers, and collected the
money and returned it to Cruz. Rahman testified that on two occa7