United States v. Fredell

79 F. App'x 799
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 28, 2003
DocketNos. 02-5531, 02-5584
StatusPublished
Cited by7 cases

This text of 79 F. App'x 799 (United States v. Fredell) 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. Fredell, 79 F. App'x 799 (6th Cir. 2003).

Opinion

GIBBONS, Circuit Judge.

Defendant-appellant Lynn Jay Fredell was convicted by a jury of multiple crimes, including engaging in a continuing criminal enterprise, conspiracy to possess with intent to distribute 100 kilograms or more of marijuana, possession with intent to distribute marijuana and methamphetamine, and possession of a firearm in furtherance of a drug trafficking crime. After the jury entered its verdict, Fredell pled guilty to two counts of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(a)(2). Fredell was sentenced to 420 months in prison.

Defendant-appellant James Phelps was convicted of one count of conspiracy to possess with intent to distribute 100 kilograms or more of marijuana, in violation of 21 U.S.C. § 846, and one count of possession with intent to distribute approximately seventy-five kilograms of marijuana, in [802]*802violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Phelps was sentenced to 188 months in prison.

Fredell asserts numerous claims on appeal. Fredell appeals his conviction for engaging in a continuing criminal enterprise on the basis that there was insufficient evidence for the district court to find that he organized, supervised, or managed five or more persons in his drug operation. In the alternative, Fredell appeals his conviction for conspiracy to distribute marijuana on the ground that he cannot be convicted of both conspiracy and engaging in a continuing criminal enterprise. Fredell also contends that the district court allowed the use of impermissible hearsay testimony at his trial. Fredell appeals his sentence on the ground that the district court erred in applying an enhancement for obstruction of justice.

In addition to these claims asserted through counsel, Fredell, proceeding pro se, contends that he did not voluntarily and knowingly plead guilty to two counts of being a felon in possession of a firearm. Fredell also argues pro se that the district court erred in permitting testimony during his trial that he was an ex-felon. Fredell claims pro se that his entire conviction should be vacated because he received ineffective assistance of counsel at trial. Fredell also asserts pro se that the district court erred in denying his motion to suppress evidence.

Like Fredell, Phelps appeals his conviction on the ground that he was deprived of effective assistance of counsel. Phelps appeals his sentence on the ground that the district court erroneously applied enhancements for methamphetamine activity and for firearm possession. Phelps further contends that there was not sufficient evidence to support his conviction.

For the reasons set forth below, we vacate Fredell’s conviction and sentence for conspiracy. We affirm all other judgments against Fredell and Phelps.

I.

On December 6, 2000, the grand jury for the Western District of Kentucky returned a second superseding indictment charging Fredell with one count of engaging in a continuing criminal enterprise, in violation of 21 U.S.C. § 848 (Count 1); one count of conspiracy to possess with intent to distribute 100 kilograms or more of marijuana, in violation of 21 U.S.C. § 846 (Count 2); two counts of possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Counts 3 and 5); one count of possession with intent to distribute approximately 800 grams of a substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count 4); one count of possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(l)(A)(i) (Count 6); and two counts of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(a)(2) (Counts 7 and 8). The grand jury also charged Phelps under Counts 2 and 5 of the same indictment.1

[803]*803Fredell owned and operated the MidTown Pawn Shop in Beaver Dam, Kentucky, and he hired Phelps as manager of the pawn shop. The Mid-Town Pawn Shop was a focal point of Fredell’s marijuana and methamphetamine distribution operation. Joseph Hamad, who stored drugs for Fredell, testified that Fredell was the “top man” and that Phelps was a “gopher” who “picked up and delivered” drugs.

At trial, the government presented numerous witnesses who testified that Fredell and Phelps bought and sold marijuana and methamphetamine. John Clothier gave extensive testimony as to the inner workings of Fredell’s operation. Starting in 1997, Fredell “fronted” marijuana to Clothier at a price of up to $1,600 per pound. According to this arrangement, Clothier would not pay Fredell for the marijuana until Clothier actually sold it. Beginning in 1999, Clothier testified that Fredell received shipments at his home of 100 to 200 pounds of marijuana, and three to five pounds of methamphetamine, per week. From December 1999 to May 2000, Clothier distributed thirty or forty pounds of marijuana at a time through Fredell’s pawn shop. Clothier completed these transactions by fronting one-pound blocks of marijuana to his customers. Clothier testified that the price of each sale of marijuana “depended on Mr. Fredell and who [the customer] was.” In his testimony, Clothier named Phelps, Kenneth Copley, Jimmy “Hoghead” Rogers, Kenny Stacey, Roger Pharris, Alvino Rodriguez, and Terry Burden as persons who distributed drugs received from Fredell.

Terry Burden testified that he began to sell marijuana and methamphetamine for Fredell and Phelps around November 1999. Specifically, Burden received two to four ounces of methamphetamine a week, and a pound of marijuana at a time, from Fredell or Phelps. Burden paid for the drugs after he sold them. Burden also testified that, at the direction of Fredell, he broke into Phelps’s house and stole ten pounds of marijuana because Phelps owed Fredell money. Burden then gave three pounds of the stolen marijuana to Fredell and sold the remaining quantity himself.

Besides Burden, Donald Hall also sold marijuana that he received from Phelps. Hall testified that he received marijuana by going to the pawn shop, telling Fredell what he wanted, and paying Fredell. Phelps would then distribute the marijuana to Hall at Fredell’s request.

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Bluebook (online)
79 F. App'x 799, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-fredell-ca6-2003.