United States v. Cruz

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4471
ISRAEL CRUZ, a/k/a Chino,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4485
RANDY LEE WOODHOUSE,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-4500
DENNIS ELIJAH JEMISON, a/k/a D.J.,
a/k/a Larry R. Mathis,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-4519
ALONZO MATIN WILSON, JR., a/k/a
June,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-4758
CARLO GARRETTE MALONE, a/k/a
Pokie,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Jerome B. Friedman, District Judge.
(CR-97-117)
Argued: October 27, 1999
Decided: January 27, 2000
Before WILKINSON, Chief Judge, and WILKINS and
MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Jesse Edgar Demps, Portsmouth, Virginia, for Appellant
Cruz; John Michael Babineau, DOYLE & BABINEAU, P.L.L.C.,
Norfolk, Virginia, for Appellant Malone; Christopher Ford Cowan,
COWAN & NORTH, L.L.P., Richmond, Virginia, for Appellant
Jemison; Robert Edward Frank, Norfolk, Virginia, for Appellant
Woodhouse; Jennifer Tope Stanton, J.T. STANTON, P.C., Norfolk,
Virginia, for Appellant Wilson. Janet S. Reincke, Assistant United
States Attorney, Norfolk, Virginia, for Appellee. ON BRIEF: Helen
F. Fahey, United States Attorney, Norfolk, Virginia, for Appellee.
_________________________________________________________________
2
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
A jury convicted Carlo Garrette Malone, Randy Lee Woodhouse,
Dennis Elijah Jemison, Alonzo Matin Wilson, Jr., and Israel Cruz for
conspiracy to distribute heroine and cocaine in violation of 21 U.S.C.
§ 846. The jury also convicted Malone of operating a continuing
criminal enterprise, see 21 U.S.C. § 848, for his role in running a drug
trafficking organization. The district court sentenced Malone to 420
months, Woodhouse to 310 months, Jemison to 200 months, Wilson
to 155 months, and Cruz to 250 months. The defendants appeal their
convictions and sentences on several grounds, and we affirm.
I.
From 1992 to 1997 Malone led a major cocaine and heroin drug
ring centered in Norfolk, Virginia. Woodhouse, Jemison, and others
worked for Malone; they helped him transport, process, and sell
drugs. By 1997 Cruz led a cocaine and heroin distribution ring that
was actively conspiring with Malone's organization; Cruz employed
Wilson and others to ship cocaine and heroin from Florida and New
York to Malone in Virginia. The conspiracy formed from Malone and
Cruz's organizations placed thousands of packets of heroin and
cocaine into the hands of drug users.
Malone employed Jemison and Woodhouse to help him process
and sell drugs in and around Norfolk, Virginia. On Malone's behalf,
Jemison prepared thousands of individual-sized packets of drugs and
sold them to street dealers. Jemison also accompanied Malone at
large-volume drug transactions. Woodhouse did much the same for
Malone. Woodhouse, too, cut and bagged drugs and then sold the pre-
pared product for retail distribution. Malone himself was heavily
involved in preparing the drugs for sale. For example, Carnale James,
another Malone employee, testified that he helped Malone prepare
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thousands of individual packets of heroin several times a week
between 1992 and 1995.
Malone made significant leadership decisions during the life of the
conspiracy. He arranged for Woodhouse to process and sell drugs
from a particular apartment. Malone recruited people to sell drugs on
his behalf in Grandy Park, a neighborhood in Norfolk. He once
arranged for someone else to rent a car and then used it to drive to
New York to buy $24,000 of heroin. He handled and controlled much
of the conspiracy's money. He made direct sales of large quantities
of drugs to street dealers who later sold the drugs to individual users.
Malone fronted drugs for sale in Grandy Park, and the cash proceeds
were delivered directly to him.
Cruz controlled a cocaine and heroin distribution ring that partici-
pated with Malone's organization in bringing drugs into Norfolk. Spe-
cifically, in 1997 Cruz assumed control of a drug distribution
operation that had been run by Milton Romero. Before he became the
leader, Cruz had worked with Romero. Alonzo Wilson, Leon Garcia,
Antonio Jaramillo, Winston Greene, Erik Santos, and Barry Rahman
worked with Romero and Cruz. Romero and (later) Cruz repeatedly
shipped large quantities of drugs to Malone. These shipments were
sent through Garcia, Jaramillo, Santos, and Rahman.
Cruz, like Malone, exercised considerable control over the drug
distribution system. Cruz used Greene to distribute literally thousands
of individual packets of heroin. At Cruz's direction, Santos packaged
drugs, and Santos and Rahman delivered them. Cruz's home was a
virtual drug factory: a search turned up the full line of equipment used
for processing and dealing drugs, including scales, cutting agents,
glassine bags, and handguns.
An informant captured Malone on tape discussing drug debts that
Romero owed him, the possibility of future drug sales, and his
(Malone's) knowledge of Wilson's drug sales. A search of Malone's
grandmother's house turned up Malone's fingerprints on bags used to
package drugs for retail sale, 13.4 grams of heroin, scales, and fire-
arms. Finally, Malone was arrested in 1995 with 166.4 grams of her-
oin and $3,700 dollars in cash.
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Malone, Cruz, and their associates were prone to violence.
Jaramillo was murdered during the course of the conspiracy. He was
killed over drug debts generated by the trafficking between the Cruz
and Malone segments of the conspiracy. Every defendant except Wil-
son was linked to firearms. Malone, Woodhouse, and Jemison carried
a gun, and guns were found in Cruz's home.
II.
A.
Malone, Woodhouse, Jemison, Wilson, and Cruz contend that there
was insufficient evidence to support their drug conspiracy convic-
tions. Specifically, they argue that the government failed to prove that
they all belonged to the same conspiracy. We conclude, however, that
the evidence was sufficient to convict all five defendants of participa-
tion in a single conspiracy.
To prove a single conspiracy, the government had to show an
agreement among the defendants to undertake illegal drug trafficking
and each defendant's willful joinder in that agreement. Proof of a sin-
gle conspiracy may be shown by circumstantial evidence. United
States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996). There was evi-
dence that the five defendants were involved in one overall conspir-
acy to supply the Norfolk area with illegal drugs. The conspiracy had
two wings to be sure, one led by Malone and one led by Cruz (and
earlier by Romero). Woodhouse and Jemison worked directly for
Malone, and Wilson worked directly for Cruz. There was consider-
able communication and dealing between the two wings of the con-
spiracy. These dealings culminated periodically when Cruz supplied
Malone with wholesale quantities of drugs. This evidence, taken in
the light most favorable to the government, is sufficient to support the
jury's finding of one drug trafficking conspiracy. See Glasser v.
United States, 315 U.S. 60, 79-80 (1942).
B.
Malone contends that there was insufficient evidence to convict
him of running a continuing criminal enterprise (CCE). On a CCE
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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 leader-
ship 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 cross-
examination. Another defendant, Wilson, called A.L. Pittman, a Nor-
folk 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 famil-
iar 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.
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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 sup-
port the district court's two-level enhancement of his sentence for
being an "organizer, leader, manager, or supervisor" in the conspir-
acy. 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 occa-
7
sions at Cruz's direction he stashed heroin in rental vans that were
used to make deliveries. This evidence was sufficient to support an
enhancement for a leadership role.
III.
The convictions and sentences of Carlo Garrette Malone, Randy
Lee Woodhouse, Dennis Elijah Jemison, Alonzo Matin Wilson, Jr.,
and Israel Cruz are affirmed.
AFFIRMED
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