United States v. Bailey

61 F. App'x 233
Court of Appeals for the Sixth Circuit·Decided April 23, 2003·No. No. 01-6023·Published·Cited by 1 cases

Opinion

PER CURIAM.

Kaylon Sebron Bailey appeals his conviction for attempting to distribute in excess of five grams of cocaine base, in violation of 21 U.S.C. § 841. Bailey and a co-defendant, Lametris Bush, were arrested on January 4, 2001, and charged with conspiring to distribute cocaine base (“crack”). On January 23, 2001, a federal grand jury returned a three-count indictment against Bailey and Bush. Bailey was charged in two of the counts. Count One charged Bailey with conspiring to distribute fifty grams or more of cocaine base with Bush, in violation of 21 U.S.C. § 846. Count Two charged Bailey with attempting to distribute five grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) [235] and (b)(1)(B). Bush pled guilty to the charges and Bailey went to trial. After a two-day jury trial, Bailey was convicted of Count Two, acquitted of Count One, and subsequently sentenced to a term of 170 months to be followed by a four-year period of supervised release. Bailey filed a timely notice of appeal on August 10, 2001. We affirm.

I

On January 4, 2001, Bailey and Bush were arrested at Frank’s grocery store in Chattanooga. Tennessee, after Bush attempted to sell crack cocaine to a confidential informant named Terry Heard. Heard, who recently had been arrested for distribution of controlled substances, had cooperated with the police to set up the meeting, recording four staged conversations in which he arranged to purchase two ounces of crack cocaine from Bush. Bush had agreed to meet Heard at Frank’s grocery store. Heard was outfitted with a transmitter and provided with “flash money.” The plan was to arrest Bush before the transaction was completed, but after confirming that the drugs were present. Approximately ten officers in four different vehicles were part of the stakeout, wearing raid gear, including vests with the word “Police” written on the front and back in large letters.

Heard gave the pre-arranged signal to the officers once he had verified that Bush had the drugs with him, and the officers descended on the parking lot. The officers claim that they announced they were police officers and pulled Bailey out of the car, placing him on the ground, while they attempted to secure Bush who had gone inside the grocery store. Bailey, however, jumped up and ran from the scene. He claims that he ran because he did not know that these were police officers and he thought they were a gang that had come after him. Eventually Bailey was apprehended at a nearby barber shop.

Once arrested, Bailey waived his rights in writing and made various incriminating statements to officers who interviewed him at the police station.1 Various officers testified at trial that Bailey had told them he worked for Bush, by driving him around, and that Bush was “the man,” which the officers interpreted as implying that Bush was in charge and in possession of the drugs. In addition, Bailey allegedly told the officers that he wanted to cooperate and could do so by acting as an informant and arranging crack cocaine deals.

Bush pled guilty to the charges and agreed to cooperate as part of his plea agreement. Bush testified for the government at trial, stating that he had been engaged in drug transactions with Bailey since October 2000, and that it was Bailey who was supplying the drugs, which were obtained from Atlanta, Georgia. Bush also testified regarding the events that led up to the meeting at Frank’s grocery store and their subsequent arrest. Bush explained that he got a call from Heard expressing an interest in buying two ounces of cocaine base. Bush then called Bailey to purchase the drugs he would need for the sale. When Bush visited Bailey’s residence, he told Bailey that he had a buyer who wanted two ounces of crack later that evening. Bailey told Bush to call him when he needed the drugs. In the meantime, Bush purchased a sixteenth of an ounce of crack. Bush testified that Bailey appeared to have approximately 50 grams of cocaine base on a scale, while [236] they were conducting this transaction at his house.

Later on in the day, Bush made a call to Bailey, letting him know that the buyer was ready. Bailey then picked up Bush and drove him to the grocery store, saying that it was on his way to another appointment. Bailey testified on his own behalf at his trial, denying that he had ever supplied Bush with crack, and further stating that he did not do drugs anymore, having learned his lesson from a prior conviction for possession of cocaine (not crack) in Georgia.

Bailey now raises four issues on appeal, all of which he contends require a reversal of his conviction, and in most cases a new trial. Bailey contends that 1) the district court abused its discretion during voir dire, by limiting Bailey’s questioning of the potential jurors: 2) the government did not present sufficient evidence of Bailey’s crime of aiding and abetting an attempted drug offense; 3) the district court plainly erred in allowing Bush to testily with regard to a prior act involving Bailey; and 4) the district court abused its discretion by admitting into evidence the events that led up to Bailey’s prior conviction for possession of cocaine in Georgia. We reject these arguments and affirm Bailey’s conviction.

II

A. Claim Regarding a Limitation of Voir Dire

Bailey contends that the “trial judge erred by improperly limiting the defense counsel’s voir dire.” He further submits that this limitation affected the fundamental fairness of the case. However, the transcript of the voir dire does not support this contention. After the trial judge asked the defense counsel “to wrap it up,” the judge still allowed the defense to question the jurors as to whether they would be more likely to believe witnesses that work for the government and whether or not the defendant’s race would be an issue. Having asked those questions, the following exchange took place:

Defense Counsel: Okay. I’m going to ask you one final personal question, real quick, then I’m going to sit down. This is a personal question, and it’s an odd question, but it may give me some insight to what you think or what kind of people you are. If I asked you to tell me real quick one person in life that you admire as a hero or someone that you admire, that you look up to, whether it be a political figure or religious figure, someone you know personally, just someone you look up to, just tell me. And it may not be anyone any of us know. I want to ask you who in this day and time or some former person would you consider a hero of yours. And I’m going to just go down the row real quick. I know this is a tough question.
The Court: We don’t—we’re not going to take the time to do that, Mr. Richardson. We’ve been through—everybody’s responded to questions, we’re not going to do that one. We don’t have the time to do that.
Defense Counsel: Okay
The Court: I don’t think that’s particularly an appropriate question. You can ask another question if you want.

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United States v. Bailey, 61 F. App'x 233 (6th Cir. 2003).

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