Filed: Apr. 14, 2003
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 99-4717 MARSHAWN DIMAR STOKES, a/k/a Shawn, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 99-4718 AHMAD SIMMION LINTON, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 01-4174 CORNELL ALVIN WILLIAMS, a/k/a Corney, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 01-4275 ANTWAN AS
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 99-4717 MARSHAWN DIMAR STOKES, a/k/a Shawn, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 99-4718 AHMAD SIMMION LINTON, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 01-4174 CORNELL ALVIN WILLIAMS, a/k/a Corney, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 01-4275 ANTWAN ASK..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 99-4717
MARSHAWN DIMAR STOKES, a/k/a
Shawn,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4718
AHMAD SIMMION LINTON,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 01-4174
CORNELL ALVIN WILLIAMS, a/k/a
Corney,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4275
ANTWAN ASKIA,
Defendant-Appellant.
2 UNITED STATES v. STOKES
Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Benson Everett Legg, Chief District Judge.
(CR-98-258-L)
Argued: February 28, 2003
Decided: April 14, 2003
Before WIDENER and LUTTIG, Circuit Judges, and
C. Arlen BEAM, Senior Circuit Judge of the
United States Court of Appeals for the Eighth Circuit,
sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Harvey Greenberg, Towson, Maryland; Arcangelo
Michael Tuminelli, Baltimore, Maryland, for Appellants. Robert
Reeves Harding, Assistant United States Attorney, Baltimore, Mary-
land, for Appellee. ON BRIEF: Jack B. Rubin, Flynn M. Owens,
Baltimore, Maryland, for Appellant Stokes; Peter D. Ward, Balti-
more, Maryland, for Appellant Askia. Thomas M. DiBiagio, United
States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Appellants Marshawn Stokes ("Stokes"), Ahmad Linton ("Linton"),
Cornell Williams ("Williams"), and Antwan Askia ("Askia") appeal
UNITED STATES v. STOKES 3
a jury verdict finding them guilty of conspiracy to distribute cocaine
and finding Stokes and Linton guilty of conspiracy to commit murder
in aid of racketeering. We affirm.
I.
Stokes, Askia, Williams, Linton and others worked together in the
sale of crack cocaine in the O’Donnell Heights housing development
of Baltimore. They protected and looked out for each other in order
to prevent robberies and they pooled their money to buy drugs in
quantity.
Another group of drug dealers, the "Nickel Boys,"1 also sold drugs
in O’Donnell Heights. The Nickel Boys and the appellants fought
over O’Donnell Heights turf because they were vying for the same
customers. On August 15, 1997, Stokes and Linton murdered
Anthony Hamilton ("Hamilton"), a member of the Nickel Boys, after
an argument over sales territory. Askia and Williams were not
involved in the murder. Two days after Hamilton’s death, shots were
fired at members of the Nickel Boys from the same gun that was used
in the killing.
Each appellant was charged with conspiracy to distribute cocaine
in violation of 21 U.S.C. § 841(a) (Count III of the indictment).
Stokes and Linton were also charged under 18 U.S.C. § 1959 with
conspiracy to commit murder in aid of racketeering for the murder of
Hamilton (Count I of the indictment) and conspiracy to murder other
members of the Nickel Boys, namely Damon Reaves, Alfred Cheese,
and Antonio Howell (Count II of the indictment). The appellants were
tried together, despite their motions for severance. All were found
guilty of conspiracy to distribute cocaine. Stokes and Linton were
found guilty of conspiracy to commit murder in aid of racketeering
for the murder of Hamilton, but were found not guilty of the conspir-
acy to murder Reaves, Cheese and Howell. Each appellant filed an
appeal, and their appeals were consolidated into this one proceeding.
1
So named because of their propensity to sell "nickel" bags, or $5
bags, of crack.
4 UNITED STATES v. STOKES
II.
Appellants argue five issues: (1) that the district court2 erred in fail-
ing to suppress evidence obtained from the execution of warrants
allowing a search of Stokes’s and Linton’s homes and Stokes’s car,
(2) that "periodic arrest" evidence was erroneously admitted at trial,
(3) that the district court erred in denying the motions to sever, (4)
that the district court erred in admitting coconspirator statements of
Stokes and Linton against Askia and Williams, and (5) that the district
court erred in denying Stokes’s and Linton’s motion for acquittal.
A.
Stokes and Linton claim that the affidavits supporting the warrants
used to search Stokes’s homes and car and Linton’s home lacked a
showing of probable cause that evidence of the crimes could be found
in these locations and that, as a result of this shortcoming, the district
court should have suppressed the evidence obtained from these areas.
The district court has a limited role in reviewing an issuing magis-
trate’s probable cause determination and must only "‘ensure that the
magistrate had a substantial basis for concluding that probable cause
existed.’" United States v. Bynum, 293 F.3d 192, 202 (4th Cir. 2002),
quoting Illinois v. Gates,
462 U.S. 213, 238-39 (1983). We review the
district court’s determination de novo, United States v. Han,
74 F.3d
537, 540 (4th Cir. 1996), and, upon doing so, we disagree with appel-
lants’ contention.
The affidavits supporting the requests for the search warrants
showed that Stokes had been identified as the shooter in the killing
of Hamilton and that Linton had been present at the murder scene
with a handgun and fled with Stokes. The affidavits also indicated
that the places to be searched were Stokes’s residences and Linton’s
residence and the automobile that Stokes regularly drove. These facts
established probable cause to believe that evidence of the crime
would be found in the designated homes and vehicle.
2
The Honorable Benson Everett Legg, United States District Judge for
the District of Maryland (Northern Division).
UNITED STATES v. STOKES 5
We have clearly held that an affidavit seeking a warrant to search
a murder suspect’s home need not contain any particular facts show-
ing that the murder weapon is located in the home. Rather, it is
enough that the judge issuing the warrant can infer that the weapon
is likely to be kept at the residence because weapons are usually kept
either on the person or at the person’s abode. United States v. Ander-
son, 851 F.2d 727, 729 (4th Cir. 1988). While probable cause to arrest
a suspect does not equate with sufficient cause to search a suspect’s
home, United States v. Jones,
994 F.2d 1051, 1055 (3d Cir. 1993),
when a murder suspect has been identified by several witnesses and
left the scene with a murder weapon, that is enough to create probable
cause to search the suspect’s residence and car for the weapon. In any
event, the district court was correct in finding that the good faith
exception to the exclusionary rule would apply. Even a well trained
officer would not have known that there was any defect in these par-
ticular warrants. See United States v. Leon,
468 U.S. 897, 913, 922-
23 (1984); United States v. Hyppolite,
65 F.3d 1151, 1156 (4th Cir.
1995).
B.
The appellants argue that the district court erred in admitting "peri-
odic arrest" evidence. We review a trial court’s admission of evidence
for abuse of discretion. United States v. Mohr, 318 F.3d 613, 618 (4th
Cir. 2003). If evidence is admitted improperly, the next test is whether
that evidence was harmless or not; in other words, whether it is proba-
ble that the error could have affected the jury verdict in the particular
circumstances of the trial. United States v. Hernandez,
975 F.2d 1035,
1041 (4th Cir. 1992).
Evidence that is intrinsic to the crime charged is admissible. United
States v. Lipford,
203 F.3d 259, 268 (4th Cir. 2000). Evidence of acts
extrinsic to the crime charged is subject to Federal Rule of Evidence
404(b), or, perhaps, other applicable evidentiary rules depending upon
the purpose for which the proof is offered. The district court found
that the periodic arrest evidence was intrinsic to the crimes of conspir-
acy to distribute cocaine and conspiracy to commit murder in the aid
of racketeering. Criminal acts are intrinsic when the crimes at issue
are "inextricably intertwined or [the] acts are part of a single criminal
episode or the other acts were necessary preliminaries to the crime
6 UNITED STATES v. STOKES
charged." United States v. Lambert,
995 F.2d 1006, 1007 (10th Cir.
1993) (adopted by United States v. Chin,
83 F.3d 83, 88 (4th Cir.
1996)). The government alleged and was required to prove that the
drug conspiracy was an enterprise under 18 U.S.C. § 1959. To help
establish such an enterprise, the government offered evidence that all
of the appellants were engaged in drug distribution, carried firearms,
and committed crimes of violence during the time they were charged
with conducting this business. Guns and acts of violence are tools of
the drug trafficking trade. United States v. Otis,
107 F.3d 487, 491
(7th Cir. 1997); United States v. Gonzalez,
33 F.3d 56, No. 93-2848,
1994 WL 464425 (7th Cir. Aug. 26, 1994) (unpublished), citing
United States v. Garrett,
903 F.2d 1105, 1113 & n.11 (7th Cir. 1990);
United States v. Soler, No. 94 Cr. 533,
1998 WL 167327 (S.D.N.Y.
Apr. 9, 1998). Accordingly, this evidence tended to prove the exis-
tence of both a drug conspiracy and a racketeering enterprise. Thus,
it was admissible intrinsic evidence under both counts of conviction.
C.
The appellants also argue that it was error not to sever the defen-
dants’ trials. We review severance decisions for abuse of discretion.
United States v. Ford, 88 F.3d 1350, 1361 (4th Cir. 1996). We have
already held that juries are capable of segregating evidence properly
when there are multiple defendants charged with multiple, unrelated
crimes and conspiracies. United States v. Kennedy,
32 F.3d 876, 883
(4th Cir. 1994). Here, the jury would have been able to distinguish the
evidence against each defendant for each charge and there was no risk
that Askia and Williams were convicted because of the evidence that
Stokes and Linton committed the Hamilton murder. There was also
ample evidence that Askia and Williams were guilty of conspiring to
distribute cocaine and we have already noted that the use of firearms
and the commission of crimes of violence are part and parcel of illicit
drug commerce. The district court properly instructed the jury on how
to separately consider the evidence against each defendant.3 There
was no abuse of discretion in the denial of the motions to sever.
3
The jury instruction stated, "There are four men here on trial, four
defendants. In an ideal world, they would each be tried separately, in a
trial in which they would be the sole defendant. . . . So consider the evi-
UNITED STATES v. STOKES 7
D.
Coconspirator statements are not hearsay under Federal Rule of
Evidence 801(d)(2)(E) if they are made during the course and in fur-
therance of the conspiracy. The district court admitted statements by
Stokes and Linton under this rule, finding they were made during the
course and in furtherance of the conspiracy charged. The statements
involved Stokes’s and Linton’s attempts to conceal conspiratorial acts
and to intimidate and kill potential witnesses. Appellants Williams
and Askia argue that the district court erred in receiving these state-
ments because the declarations were made after the conclusion of the
drug conspiracy when Stokes and Linton were in prison. Thus, they
contend, any "conspiracy" must have been one newly designed for the
purpose of obstructing justice, not distributing drugs.
We review for clear error the district court’s factual determination
that the statements were made during the course and in furtherance of
the drug conspiracy and we may only overturn the court’s decision to
admit evidence under Rule 801(d)(2)(E) if it constituted an abuse of
discretion. United States v. Blevins, 960 F.2d 1252, 1255 (4th Cir.
1992). There is some support for appellants’ "after arrest" contention.
Wong Sun v. United States,
371 U.S. 471, 490 (1963). However,
application of the limited rule set forth in Wong Sun is not appropriate
in this case because the evidence established that the incarceration of
Stokes and Linton did not end the drug conspiracy or their involve-
ment in it.4 The Supreme Court recently explained that "conspiracy
dence against each defendant separately and consider the evidence on
each count separately. . . . Each defendant is entitled to separate consid-
eration. . . . Your verdict should be based solely upon the evidence or
lack of evidence as to the defendant you are considering in accordance
with my instructions and without regard to whether the guilt of other
people has or has not been proven."
4
The government also contends that even if the drug conspiracy ended
with the arrest of Stokes and Linton, the admission of coconspirator
statements need not be supported by the conspiracy charged in the indict-
ment. United States v. Shores, 33 F.3d 438, 442, n.3 (4th Cir. 1994). On
its face, Shores is not precisely on point here and in any event, we
believe we need not travel this path today.
8 UNITED STATES v. STOKES
law does not contain any . . . ’automatic termination’ rule," United
States v. Jimenez Recio,
123 S. Ct. 819, 821 (2003), even when the
object of the criminal agreement has become impossible to achieve.
Acts of witness intimidation and concealment of the conspiracy often
constitute a continuation of the scheme. See Grunewald v. United
States,
353 U.S. 391, 405 (1957). The disputed evidence emanated
from letters written or conversations undertaken at the jail. It appears
that when some of these oral and written statements were formulated,
both Stokes and Linton were present. At the time, Williams, Askia
and several other coconspirators were still on the street. Stokes noted
in one letter that he and Linton were in jail on "one murder" charge
but not "drug charges." He then directed those on the outside to "chill
until the 15th" because the federal authorities "have to have phone
taps or be watching" and "[c]hilling the next couple of days is worth
not spending the next couple of years in jail."
The district court found that these and other contemporaneous
statements were made in the course and in furtherance of the objec-
tives of the charged drug conspiracy and were admissible under Rule
801(d)(2)(E). We agree.
E.
Finally, appellants Stokes and Linton argue that the district court
erred in denying their motion for judgment of acquittal on the charge
of conspiring to murder Hamilton because there was no Racketeer
Influenced and Corrupt Organizations ("RICO") enterprise. 18 U.S.C.
§ 1959. The jury’s verdict must be sustained if there is substantial evi-
dence to support it, taking a view most favorable to the government.
United States v. Steed, 674 F.2d 284, 286 (4th Cir. 1982). Employing
this standard, we find no merit to the claim.
Stokes and Linton were convicted under 18 U.S.C. § 1959. Thus,
the government had to prove,
"(1) that the organization was a RICO enterprise, (2) that the
enterprise was engaged in racketeering activity as defined in
RICO, (3) that the defendant in question had a position in
the enterprise, (4) that the defendant committed the alleged
crime of violence, and (5) that his general purpose in so
UNITED STATES v. STOKES 9
doing was to maintain or increase his position in the enter-
prise."
United States v. Fiel, 35 F.3d 997, 1003 (4th Cir. 1994), quoting
United States v. Concepcion,
983 F.2d 369, 381 (2d Cir. 1992).
Stokes and Linton argue that elements one and five were not met
because the drug conspiracy could not be considered a "RICO enter-
prise" and the government did not show that their general purpose in
carrying out the murder was to maintain or increase their position in
the enterprise. We disagree with their contention.
A "RICO enterprise" includes "any union or group of individuals
associated in fact although not a legal entity, which is engaged in, or
the activities of which affect, interstate or foreign commerce." 18
U.S.C. § 1959(b)(2). The "hallmark concepts" that identify RICO
enterprises are "continuity, unity, shared purpose and identifiable
structure."
Fiel, 35 F.3d at 1003; United States v. Griffin,
660 F.2d
996, 1000 (4th Cir. 1981). A group of drug dealers can be considered
an "enterprise" under RICO if these elements are satisfied. See United
States v. Hoyte,
51 F.3d 1239, 1244-45 (4th Cir. 1995). In the present
case, the appellants engaged in a course of drug dealing over multiple
years and there was no suggestion that the conspiracy would not have
continued had the appellants not been arrested. Thus, there was conti-
nuity. The appellants worked together, watched each others’ backs,
protected each other, and engaged in continuing "turf wars" with the
Nickel Boys. The conspiracy was unified. The shared purpose of the
conspiracy was for each member to obtain, sell, and profit from the
sale of drugs. The members of the conspiracy called themselves the
"family" and Stokes was identified as the leader of the group. There
was an identifiable structure. Accordingly, all of the "hallmarks" of
a RICO enterprise were present in appellants’ drug conspiracy. See
Fiel, 35 F.3d at 1003.
In Hoyte, a group of drug dealers murdered a man who had alleg-
edly stolen drugs from them and the evidence suggested that the drug
dealers wanted to intimidate others into not stealing their
narcotics.
51 F.3d at 1245. We upheld the drug dealers’ conviction in Hoyte
under section 1959 because a reasonable jury could have found that
"the murder was committed in furtherance of the defendants’ drug
trafficking."
Id. The circumstances of this case are similar to Hoyte.
10 UNITED STATES v. STOKES
A reasonable jury could have found that Hamilton’s murder was com-
mitted by Stokes and Linton in furtherance of their drug trafficking
initiative and their relative positions in that undertaking. Thus, there
was substantial evidence to support the jury’s verdict.
III.
For the reasons stated above, we affirm the judgment of the district
court.
AFFIRMED
