United States v. Franks

98 F. App'x 483
CourtCourt of Appeals for the Sixth Circuit
DecidedMay 27, 2004
DocketNo. 02-4085
StatusPublished
Cited by4 cases

This text of 98 F. App'x 483 (United States v. Franks) 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. Franks, 98 F. App'x 483 (6th Cir. 2004).

Opinion

ROGERS, Circuit Judge.

While investigating Terry Gardner for cocaine trafficking, agents of the Federal Bureau of Investigation (the “FBI”) taped telephone conversations between Gardner and another man, a number of which ostensibly concerned the sale of Tire Wet, car wax, and air freshener. After his arrest, Gardner identified the other party as Joseph Franks, the defendant/appellant. Gardner claimed that he regularly distributed cocaine to Franks, and he explained that Tire Wet, car wax, and air freshener were code words for cocaine. A jury convicted Franks of conspiracy to distribute cocaine and of the use of a communications facility to facilitate a drug conspiracy. Franks appeals, raising a number of issues including his “career offender” status for purposes of sentencing, the admission of evidence seized months after the end of the alleged conspiracy, alleged prosecutorial misconduct during closing argument, and the sufficiency of the evidence for the conspiracy claim. We affirm Franks’s conviction, but we vacate his sentence and remand for resentencing.

BACKGROUND

In late 1998 or early 1999, the FBI initiated an investigation of a cocaine-distribution ring involving Terry Gardner. Gardner, the FBI learned, bought cocaine from Anthony Goodman in California and resold the drugs to various individuals in Cleveland, Ohio. Gardner purchased cocaine in the amount of two to four kilograms once or twice a month. He then broke the cocaine down into eighth-kilogram quantities for resale. His customers — primarily four individuals — further broke down the drugs before reselling them. A courier named Darlene Brunn would pick up the drugs in California and fly back to Cleveland. Additionally, on several occasions, Goodman transported drugs to Cleveland via automobile.

As part of its investigation, the FBI installed a wiretap on Gardner’s phone in December 1999. Agents recorded 14 telephone conversations between Gardner and an unidentified man, including a number of calls concerning the purchase of Tire Wet, car wax, and air freshener. For example, in one call, Gardner stated that he had [486]*486“eight gallons of wax and maybe another eight gallons of Tire Wet,” which the other party agreed to purchase. In another call, Gardner arranged the sale to the other party of “gallons of air freshener” in cherry, lemon, banana, and apple scents.

The FBI arrested Gardner in July 2000. Gardner identified Franks as the other party to the taped conversations, and Gardner revealed that he distributed cocaine to Franks for a period of 12 to 18 months in 1999 and 2000. He reported that Franks was one of his primary customers and that Franks purchased cocaine in quantities ranging from a half kilogram to two kilograms at a time. He claimed to have sold Gardner a total of 15 kilograms of cocaine in approximately 15 transactions during their relationship. Finally, he explained that, in their telephone conversations, he and Franks used Tire Wet, car wax, and air freshener as code words for cocaine.

On February 14, 2001, the Government filed a Superseding Indictment charging Franks with conspiracy to distribute cocaine. On February 21, 2001, agents arrested Franks at his residence, and Franks consented to a search of the premises. In an upstairs room, agents retrieved a gun and a little packet of marijuana from the drawer of a nightstand. In the basement, agents recovered a scale and a cardboard box top from behind a television set. Franks’s fingerprint was found on a battery in the scale and on the box top. The box top contained cocaine residue in the amount of one hundredth of a gram (.01 grams), as did the scale.

Agent Kenneth Riolo of the FBI interviewed Franks at the federal building. According to Agent Riolo,

[Franks] admitted that he had dealt with Terry Gardner and that Terry would contact him whenever Terry was in possession of product, and that they would agree to meet, and he — you know, Joe would have an idea of what kind of quantity was available to him, and they would meet either at [Gardner’s] pager store or at [Franks’s] car wash.
He also said that he owned a car wash on 143rd and Harvard and that he had lived on Invermere for approximately 20 years, that he had dealt with Gardner for about a year.

Also according to Agent Riolo, Franks “said a couple of times that he knew that dealing with Gardner was wrong, but he continued to do it.”

On February 6, 2002, a grand jury returned a Second Superseding Indictment charging Franks with one count of conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A), ten counts of using a communications facility to facilitate a drug conspiracy in violation of 21 U.S.C. § 843(b), and one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Franks waived his right to a jury trial with respect to the felon in possession charge.

At the jury trial, defense counsel argued that Franks’s dealings with Gardner related solely to the automobile business. Franks had operated a car wash since 1997, and Gardner sold tires, rims, and automotive accessories at his pager store. Franks, who also sold cars, once attempted to help Gardner’s son obtain a car title and, on another occasion, purchased a set of tire rims from Gardner. Gardner periodically had his car washed at Franks’s car wash. Lynzell Hereford, a former employee of Franks, testified that Gardner delivered four bottles of Tire Wet and four bottles of car wax to Franks’s business in late 1999. Ricardo Williams, a friend of Franks, testified that he and Franks visited Gardner’s pager store in December, 1999, in order to purchase a customized license plate and that, at the store, Gard[487]*487ner told Franks that he could obtain Tire Wet and air freshener for a cheap price. This evidence, defense counsel contended, demonstrated that Franks and Gardner engaged in only legitimate business and that the calls between Franks and Gardner actually concerned Tire Wet, car wax, and air freshener.1

At the close of the Government’s case, Franks moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29, arguing that the Government had not adduced sufficient evidence for the jury to conclude that Franks had joined any conspiracy. He argued that the evidence proved, at most, that Franks was an “end-user,” stressing that Franks dealt only with Gardner and did not know any other members of the alleged conspiracy. The Government responded that Franks participated in “a typical chain-type conspiracy.” The district court denied the motion, concluding that the evidence that Gardner regularly distributed cocaine to Franks allowed the jury to conclude that Franks “was not simply a street buyer, but knew of an ongoing conspiracy in which he was involved.” At the close of the evidence, Franks again moved for a judgment of acquittal, and the district court again denied the motion.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Franks
203 F. App'x 698 (Sixth Circuit, 2006)
United States v. Luis A. Montanez
442 F.3d 485 (Sixth Circuit, 2006)
United States v. Montanez
Sixth Circuit, 2006

Cite This Page — Counsel Stack

Bluebook (online)
98 F. App'x 483, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-franks-ca6-2004.