United States v. Cheese

39 F. App'x 257
CourtCourt of Appeals for the Sixth Circuit
DecidedJune 25, 2002
DocketNos. 00-5286, 00-5287
StatusPublished
Cited by4 cases

This text of 39 F. App'x 257 (United States v. Cheese) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Cheese, 39 F. App'x 257 (6th Cir. 2002).

Opinion

OPINION

POLSTER, District Judge.

Defendants Homer Lee Cheese, Jr. and Jerry Ryan Stevens appeal their final judgments of guilt for conspiracy and possession with intent to distribute a Schedule II controlled substance (crack cocaine) and aiding and abetting the same, in violation of 21 U.S.C. §§ 846, 841(a)(1) and 18 U.S.C. § 2. Stevens also appeals his conviction of control of an establishment for committing a drug offense, in violation of 21 U.S.C. § 856. For the reasons that follow, we AFFIRM the final judgments.

I. BACKGROUND

In May 1999, a police informant notified law enforcement officers that young black males from Detroit, Michigan, were selling crack cocaine in room 236 of the EconoLodge motel in Lexington, Kentucky. On May 25, 1999, six officers arrived at the Econo-Lodge to investigate. The officers knocked on room 236. Although no one in room 236 responded, Cheese, who was in room 232 with Stevens, heard the knocking and opened the door to that room. After seeing the uniformed officers, he quickly shut the door and went back into room 232.

One of the officers recognized Cheese from a previous, unrelated theft investigation. As a result, he and the other officers proceeded to room 232 and knocked on the door. Cheese opened the door. The officers claim that the defendants gave them permission to search the room. The defendants deny this contention. In any event, the officers searched the room and found the following items: (1) two gym bags, one containing $3,870 and another containing $2,743; (2) two torn plastic bags with crack cocaine residue (weighing .52 milligrams) in the bathroom trash can; (3) 38 or 39 torn plastic sandwich bag corners; [259]*259(4) a box of sandwich bags; and (5) a box of ammunition, but no gun.

The officers transported the defendants to the Fayette County Detention Center where both made monitored telephone calls, freely discussing the search and their subsequent arrests. These recordings were admitted into evidence. In one of the conversations, Stevens admitted that Cheese had flushed two ounces (56.7 grams) of crack cocaine down the toilet before the officers searched the motel room. In another conversation, Stevens spoke of hiding crack cocaine at a house (222 Warnocke Street) and near the pool at the motel. After reviewing these conversations, officers recovered 8.65 grams and 26.06 grams of cocaine from the said locations. During these conversations, Stevens also directed “Bishop” (an unidentified person to whom Stevens placed calls) and Vance “Corey” Lewis (a co-defendant who subsequently pled guilty) to continue to use the Warnocke Street property for drug sales. Officers thereafter monitored the Warnocke Street property and eventually recovered another 423 milligrams of crack cocaine from that location. The calls also referenced previous drug sales involving 33 grams of crack cocaine, money transactions involving drugs, properties used in drug sales, and guns. The total amount of crack cocaine involved in the conspiracy and charged to both defendants was approximately 124 grams.

A federal grand jury indicted Cheese and Stevens on a twelve-count indictment (three of these counts specifically referred to Stevens). Prior to trial, Stevens filed a motion (that Cheese joined) to suppress the evidence recovered from their motel room. At the suppression hearing, the trial court denied the defendants’ motions. After a trial on the merits, the jury found the defendants guilty of conspiracy and possession with the intent to distribute. The jury also found Stevens guilty of using 222 Warnocke Street and 421 Campbell Street to distribute drugs. The jury acquitted Cheese of using 421 Campbell Street to distribute drugs.2 The district court judge sentenced Stevens to 168 months of incarceration on each of four counts, to be served concurrently. The judge sentenced Cheese to 151 months of incarceration on one count and 150 months of incarceration on the other count, to be served concurrently.

Defendants raise the following issues on appeal:

1. Whether the district court committed clear error when it concluded that the defendants consented to the search of their motel room, in violation of their Fourth Amendment rights?
2. Whether the district court erred when it determined that there was sufficient evidence to convict Stevens and Cheese of a conspiracy under 21 U.S.C. § 846?
3. Whether the district court abused its discretion when it admitted the evidence of gang membership, in violation of Fed.R.Evid. 404(b)?
4. Whether the district court abused its discretion when it refused to excuse two jurors based upon potential prejudice created by a news report?
5. Whether the district court violated Stevens’ Sixth Amendment right to counsel when it denied his attorney’s motion to withdraw because of an alleged conflict of interest?
6. Whether the district court committed clear error when it enhanced Stevens’ sentence by two levels pursuant to U.S.S.G. § 3Bl.l(c), for [260]*260having an aggravating role in the offense?
7. Whether the district court committed clear error when it determined that Stevens was responsible for more than 50 grams of crack cocaine and sentenced him under U.S.S.G. § 2D1.1(c)(4)?
8. Whether the district court erred in sentencing the defendants in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)?

Each of these issues will be discussed in turn below.

II. ANALYSIS

A. Denial of Motion to Suppress

The defendants contend that the district court erred when it ruled that they voluntarily consented to the search of their motel room. The Fourth Amendment’s prohibition against warrantless searches does not apply in cases where voluntary consent to the search was given. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In determining whether consent was freely given, district courts must look to the totality of the circumstances. Id. at 226. A district court’s determination that a defendant freely consented to a search may not be overturned unless it was clearly erroneous. United States v. Erwin, 155 F.3d 818, 822 (6th Cir.1998). Substantial deference is accorded to a district court’s credibility determinations. United States v. Aloi 9 F.3d 438

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Related

United States v. McCaskill
202 F. App'x 70 (Sixth Circuit, 2006)
Cheese v. United States
537 U.S. 1223 (Supreme Court, 2003)
Stevens v. United States
537 U.S. 936 (Supreme Court, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
39 F. App'x 257, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-cheese-ca6-2002.