United States v. Character

76 F. App'x 690
Court of Appeals for the Sixth Circuit·Decided September 25, 2003·No. No. 01-2450·Published·Cited by 2 cases

Opinion

SUTTON, Circuit Judge.

A jury convicted Joseph Character of one count of conspiracy with intent to distribute cocaine, in violation of 21 U.S.C. § 846, and one count of using a telephone to facilitate a drug conspiracy, in violation of 21 U.S.C. § 843(b). He raises seven issues on appeal, each of which we reject. The judgment, accordingly, is AFFIRMED.

I. BACKGROUND

A Drug Enforcement Administration (DEA) investigation uncovered a cocaine trafficking conspiracy involving activity in Michigan, New York, and North Carolina and involving a Detroit-based drug dealer named David Hemphill. In the course of investigating this narcotics distribution network in the summer of 1998, DEA Agent Donald Grace intercepted telephone conversations indicating that Joseph Character, the defendant in this case, actively participated in Hemphill’s cocaine conspiracy.

Following this lead as well as a tip that a narcotics delivery from Michigan to North Carolina was imminent, Greensboro law enforcement authorities conducted surveillance of Character’s North Carolina residence on July 22, 1998. After observing suspicious activity, officers knocked on the apartment door, identifying themselves to Character (who answered the door) and explaining to him that they had received a narcotics complaint. The officers eventually conducted a “protective sweep” of his apartment while awaiting a warrant, and arrested Character after finding more than four kilograms of fake cocaine, narcotics tab sheets, and false identification documents, along with firearms and ammunition, a digital scale bearing traces of real cocaine, and lyrics to a rap tune that Character wrote referencing drugs, money and [693] guns. Character was charged with possession with intent to distribute a counterfeit controlled substance under 21 U.S.C. § 841(a)(2). Unable to post the required bond, he was incarcerated pending trial.

While Character was in jail and before he could post a bond, DEA agents wiretapped telephone conversations involving Character and other participants in the conspiracy. These conversations revealed that Character’s apartment still contained a package of real cocaine, which had not been discovered at the time of Character’s arrest during the search of his apartment on July 22, 1998. On July 25th, in one of these conversations, Character telephoned Byram Richardson, instructing him to remove the cocaine from the dishwasher. Richardson went to Character’s apartment, removed the cocaine, and placed it in a nearby tree. At Richardson’s urging, still another individual, who remains unidentified, retrieved the cocaine from the tree.

On November 3, 1999, in view of this evidence, a grand jury sitting in the Eastern District of Michigan returned a Fourth Superseding Indictment charging Character with one count of conspiracy to possess with intent to distribute controlled substances, violating 21 U.S.C. § 846, and one count of using a telephone to facilitate a drug conspiracy, violating 21 U.S.C. § 843(b). (The United States eventually dropped the counterfeit narcotics charge against Character.) On August 21, 2000, a jury convicted Character on both counts. And, on October 4, 2001, the District Court sentenced Character to a 162-month prison term on count one and a 48-month concurrent prison term on count two.

Character raises seven claims on appeal: (1) insufficient evidence to convict him on the drug conspiracy charge; (2) a flawed indictment that failed to include an element of the offense; (3) improper venue in the Eastern District of Michigan; (4) an improper instruction under Rule 404(b) of the Federal Rules of Evidence; (5) ineffective assistance of counsel; (6) a fatal variance between the indictment and the proof presented; and (7) sentencing errors in calculating the amount of cocaine at issue and in determining that a firearm was used in connection -with the crime.

II. DISCUSSION

A. Sufficiency of the Evidence on the Conspiracy Charge

Character initially challenges the sufficiency of the evidence on count one, the conspiracy charge. While Character unsuccessfully raised this challenge under Rule 29 of the Federal Rules of Criminal Procedure at the close of the Government’s case, he did not renew the motion at the close of all other evidence. That failing imposes a heavy burden on his appeal. “Absent a showing of a manifest miscarriage of justice, this court will not review a district court denial of a Rule 29 motion where a defendant does not renew that motion at the close of all the evidence.” United States v. Williams, 940 F.2d 176, 180 (6th Cir.1991). “[A] ‘miscarriage of justice,’” we have said, “exists only if the record is ‘devoid of evidence pointing to guilt.’ ” United States v. Mack, 159 F.3d 208, 216 (6th Cir.1998) (quoting United States v. Price, 134 F.3d 340, 350 (6th Cir.1998)).

No such gap in the evidence exists here. Under 21 U.S.C. § 846, the essential elements of the crime are: “(1) an agreement by two or more persons to violate the drug laws, and (2) knowledge of, intention to join, and participation in the conspiracy on the part of each conspirator.” United States v. Maliszewski, 161 F.3d 992, 1006 (6th Cir.1998). Viewed in the Government’s favor, as it must be, the [694] evidence establishes that a rational trier of fact could have found each of these elements of the crime beyond a reasonable doubt, see United States v. Riffe, 28 F.3d 565, 567 (6th Cir.1994), and accordingly that the record is not devoid of evidence of guilt.

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United States v. Character, 76 F. App'x 690 (6th Cir. 2003).

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