United States v. William Beverly William Pritchett, Also Known as O and Reginald Brown, Charles Tyrone White, Also Known as Nfn Black, and Dana Foster

5 F.3d 633, 38 Fed. R. Serv. 94, 1993 U.S. App. LEXIS 24749
CourtCourt of Appeals for the Second Circuit
DecidedSeptember 23, 1993
Docket1592, 1593, Dockets 93-1016(L), 93-1038
StatusPublished
Cited by109 cases

This text of 5 F.3d 633 (United States v. William Beverly William Pritchett, Also Known as O and Reginald Brown, Charles Tyrone White, Also Known as Nfn Black, and Dana Foster) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second 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. William Beverly William Pritchett, Also Known as O and Reginald Brown, Charles Tyrone White, Also Known as Nfn Black, and Dana Foster, 5 F.3d 633, 38 Fed. R. Serv. 94, 1993 U.S. App. LEXIS 24749 (2d Cir. 1993).

Opinion

KELLEHER, Senior District Judge:

Charles Tyrone White and Dana Foster appeal from the judgments of conviction and sentences entered in the United States District Court for the Northern District of New York, Lee P. Gagliardi, Judge, following their trial before a jury on charges stemming from their participation in a conspiracy to sell cocaine base (crack) in Albany, New York. Specifically, White appeals from his conviction and sentence for: conspiracy to possess with intent to distribute and to distribute cocaine base, possession with intent to distribute cocaine base, and use of a firearm during and in relation to a drug trafficking crime. Foster appeals from his conviction and sentence for conspiracy to possess with intent to distribute and to distribute cocaine base and for being a felon in possession of a firearm.

Appellants, respectively, attack their convictions on grounds the district court erred in: denying Foster’s motion for severance; restricting both appellants’ ability to cross-examine some government witnesses; admitting a post-arraignment statement made by Foster; allowing the government to impeach White’s testimony by eliciting testimony of prior incidents in which he had been involved with guns; denying Foster’s request for a continuance just prior to the close of trial; and reading back testimony requested by the jury.

They attack their sentences on the ground the district court improperly used the testimony of two coconspirators as the basis for its calculation of the amount of crack attributable to them for sentencing purposes.

For the reasons stated below, we affirm.

Background

Foster and White were indicted together with William Beverly, William Pritchett, and Reginald Brown on charges of: (1) conspiracy to possess with intent to distribute and to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) & (b)(l)(B)(iii) and 21 U.S.C. § 846; (2) possession with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1) and 18 U.S.C. § 2; (3) unlawful use of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) & (2); (4) as to Beverly, Pritchett, and Foster, being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(a)(2); and (5) as to Pritchett, Beverly, and White, employing minors to distribute controlled substances, in violation of 21 U.S.C. § 861 and 18 U.S.C. § 2. 1 The charges are based on the five named defendants’ participation in a crack-selling organization led by Beverly and Pritchett in Albany, New York.

Beverly and Pritchett arrived in Albany in December 1990 and began selling crack. They soon began to recruit others, including Brown, to join them in selling crack. Beverly and Pritchett dubbed their growing gang the Boston Boys. 2

Sometime in late February or early March of 1991, White and Foster joined Beverly and Pritchett’s gang in Albany. In connection with their crack dealing business, the Boston Boys purchased at least two handguns, which they used to protect themselves and their drugs: a Taurus .357 magnum revolver, Model 66, with a six inch barrel; and a Colt *637 Trooper .357 magnum revolver with, a six inch barrel.

In March 1991, as a result of several shooting incidents involving White, federal and state law enforcement officers in the Albany area began to investigate the Boston Boys.

On April 2, 1991, Beverly and Brown were arrested. On April 3,1991, after attempts to elude the police, Pritchett and White were arrested along with Carmen Johnson, Greg Roberson, and Luther Harris, a fifteen year-old who was carrying 96 small plastic bags of crack. Police later recovered the two .357 magnums from Harris’s apartment.

Foster fled Albany after hearing of Beverly’s and Brown’s arrest. He was arrested in Cambridge, Massachusetts on July 11, 1991. On July 15, 1991, Agent John Morgan of the Bureau of Alcohol, Tobacco, and Firearms interviewed Foster in Boston. This interview occurred in the absence of counsel, while Foster was in custody, and after he had requested counsel at his arraignment. During the interview, Foster identified one Donnell Hanner from a photograph as a man who had once offered to sell him a gun on Lark Street in Albany. Foster stated that, when approached by Hanner, he told Hanner he was not interested in buying the gun but pointed Hanner in the direction of. someone Foster thought might be interested in buying it. Foster did not identify to Morgan the identity of the person to whom he directed Hanner.

Beverly, Pritchett, and Brown entered into plea and cooperation agreements with the government. Foster and White did not.

In September, 1992, Foster and White were tried jointly before a jury. At trial, law enforcement officers, Beverly, Pritchett, Brown, and other unindicted coconspirators and associates testified against Foster and White. Agent Morgan testified to Foster’s post-arraignment statement regarding Han-ner’s offer to sell a gun. Both Foster and White presented evidence including their own testimony.

White was convicted of conspiracy, possession with intent to distribute, and use of a firearm during and in relation to a drug trafficking crime. Foster was convicted of conspiracy and being a felon in possession of a firearm. The jury failed to reach a verdict for Foster on the charges of possession with intent to distribute and use of a firearm during and in relation to a drug trafficking crime.

Both Foster and White were sentenced on December 23,1992. At the sentencing hearing, they disputed the presentenee report’s and the government’s estimation of cocaine base attributable to them for sentencing purposes. The district court adopted the estimation contained in the presentence report which was taken directly from the testimony of Beverly and Pritchett.

White was sentenced to: concurrent 210-month terms of imprisonment on the conspiracy and possession counts; concurrent mandatory five-year terms of imprisonment on the firearms counts, to run consecutively to the 210-month sentences; and consecutive four-year terms of supervised release on the conspiracy and possession counts. Foster was sentenced to: a 235-month term of imprisonment on the conspiracy count; a ten-year term of imprisonment on the firearm count, to run concurrently with the 235-month term; and concurrent five-year terms of supervised release on both counts.

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5 F.3d 633, 38 Fed. R. Serv. 94, 1993 U.S. App. LEXIS 24749, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-william-beverly-william-pritchett-also-known-as-o-and-ca2-1993.