The opinion
United States Court of Appeals,
Eleventh Circuit.
No. 92-8657.
UNITED STATES of America, Plaintiff-Appellee,
v.
Levon BAZEMORE, Freddie Hull, Jr., Defendants-Appellants.
Dec. 22, 1994.
Appeals from the United States District Court for the Southern
District of Georgia. (Nos. CR491-176-04, CR491-176-08), B. Avant
Edenfield, Chief Judge.
Before EDMONDSON and BIRCH, Circuit Judges, and HILL, Senior
Circuit Judge.
HILL, Senior Circuit Judge:
Appellants Freddie Hull, Jr. and Levon Bazemore appeal their
convictions and sentences for conspiracy to distribute and to
possess with intent to distribute cocaine, violating 21 U.S.C. §
846, and for the use of a firearm in furtherance of a drug
conspiracy, violating 18 U.S.C. §§ 2 and 924(c). Bazemore also
appeals his conviction for distributing marijuana, violating 21
U.S.C. § 841(a)(1). For the reasons that follow, we affirm Hull's
conviction and sentence. Bazemore's judgment of conviction and
sentence is affirmed without opinion. See 11th Cir.R. 36-1.
I. FACTUAL AND PROCEDURAL BACKGROUND
Hull was indicted by the grand jury with sixteen other members
of the locally notorious Ricky Jivens drug organization in
September 1991.1 Violence was routine to this cocaine and crack
peddling gang that began in Savannah, Georgia in the late 1980's.
1
Ricky Jivens, the kingpin of the drug empire, pled guilty
and was sentenced to life imprisonment without parole.
It was reputed to be responsible for one-third of Savannah's 1991
homicides.2 Hull eluded arrest and appointed counsel for Bazemore
reported a conflict of interest immediately before trial. As a
result, Hull and Bazemore were severed from the trial of the first
eight defendants and jointly tried three months later.3
II. ISSUES RAISED AND STANDARDS OF REVIEW
Hull contends that the district court erred in finding the
existence of a conspiracy and in admitting hearsay evidence. He
also asserts that the evidence was insufficient to support his
conviction.4 The admission of alleged hearsay and finding of a
conspiracy address a factual finding by the district court. We
review factual findings under a clearly erroneous standard. United
States v. Beale, 921 F.2d 1412, 1422 (11th Cir.), cert. denied, ---
2
Jivens used murder as an initiation rite into the
organization to insure loyalty and to prevent members from
turning against other gang members. A person had to "get down"
(murder) in order to enter the organization and to receive any
sizeable quantity of "fronted" cocaine. Apparently, this
requirement put many of Jivens' confederates in jeopardy of
capital offense charges; gave prosecutors strong plea bargaining
positions; and contributed to the downfall of the conspiracy.
3
Additional background about the Ricky Jivens organization
is found in United States v. Newton, 11th Cir., 1994, --- F.3d --
-- (Nos. 92-8228, 92-8764, 92-8376, December 22, 1994).
4
We conclude that the issue of randomly identifying
alternate jurors, the evidentiary issue of admitting firearms
seized from coconspirators' homes under Federal Rules of Evidence
403, and the sentencing errors raised by Hull on appeal (as to
his offense level and fine) are without merit and warrant no
discussion. In addition, Hull adopts, pursuant to 11th Circuit
Rule 28-2(e), Bazemore's argument on the issue of change of
venue. Our review of the record shows that Bazemore filed a
motion for change of venue which was denied by the magistrate
judge. No appeal was taken to the district court and no renewal
of the claim was made either during trial or post trial.
Accordingly, the venue claim has been waived. It was not
preserved for our review by either Appellant.
U.S. ----, 112 S.Ct. 99, 116 L.Ed.2d 71 (1991). The sufficiency of
the evidence to support a jury verdict is a question of law subject
to de novo review. United States v. Harris, 20 F.3d 445, 452 (11th
Cir.1994). In deciding, we view the evidence in the light most
favorable to the Government to ascertain whether the jury could
have found the defendant guilty beyond a reasonable doubt. United
States v. Poole, 878 F.2d 1389, 1391 (11th Cir.1989). "The court
need not exclude every reasonable hypothesis of innocence or find
guilt to be the only reasonable conclusion." United States v.
Garcia, 13 F.3d 1464, 1473 (11th Cir.), cert. denied, --- U.S. ----
, 114 S.Ct. 2723, 129 L.Ed.2d 847 (1994).
III. DISCUSSION
The Government called a juvenile witness, identified as CJR,
5
to testify about Hull's membership in the drug conspiracy. CJR
identified Hull as a regular member of the Ricky Jivens gang who
attended meetings (described as planning sessions) on the back
porch of Jivens' mother's house. He testified that, although he
never saw Jivens deliver cocaine to Hull, he [CJR] did pick up
money from Hull that was routed to Jivens.
CJR recounted that he had seen Hull with two kilograms of
cocaine in his Waldburg Street apartment. The cocaine was in
5
CJR testified for the Government under an immunity
arrangement to provide an insider's perspective of the Ricky
Jivens organization in chilling detail. CJR admitted smoking
crack since the age of twelve and committing three murders
(including a boyhood friend) to prove his loyalty to the drug
gang. At the time of trial, CJR was sixteen years old and had
been the "right-hand man" and "muscle" for one of the Jivens
organization's principal distributors, Samuel Lee Gadsden.
Gadsden was a fugitive until he was captured in January 1992,
after which time he pled guilty to Counts One and Three of the
indictment.
powder form, wrapped in a layer of black pepper, the gang's
signature. CJR testified that he saw Hull in 1991 with several
ounces of cocaine and a quarter kilogram of crack on Waldburg
Street.6 CJR claimed Jivens told him that Hull was instructed to
shoot people three times in the head as his personal signature.7
CJR implicated Hull in the drive-by murder of indicted drug
dealer Antonio Anderson (a/k/a Antonio Hunter). CJR testified that
he had seen Hull and Bazemore shoot Anderson with two automatic
weapons, a Tech-9 and an AK 47, from a distance of ten to fifteen
feet. This testimony was later impeached by a forensic scientist,
Roger Parian, of the Georgia State Crime Lab, who was called as an
expert witness by the defense. Parian testified that Anderson died
as a result of gunshot wounds from a .38 or .357 pistol, not an
automatic weapon. Savannah Police Department homicide records and
Georgia Bureau of Investigation crime lab reports suggested that
Anderson was shot at close range, six to eighteen inches. CJR also
testified that Anderson was shot at 11:00 p.m., when the actual
time of death was shown by the autopsy report and homicide records
to be many hours earlier.
Immunized coconspirator Jerome Richardson was called as a
witness for the Government. He related his experience with Ricky
Jivens and other gang members both before and after his July 16,
6
This testimony was corroborated by Joselyn Hunter, murder
victim Antonio Anderson's sister and a known drug user, who
accompanied Hull to his apartment in August 1991 and saw "bags of
coke, cardboard, razor blades, shake."
7
CJR's testimony was corroborated by Ricky Jivens in an
August 13, 1991, videotape. Government witness Jerome Richardson
also furnished the jury with similar testimony concerning what
Ricky Jivens had said to him about "Jimbo" Hull.
1991 conversion to informant status. Richardson testified that
Ricky Jivens had told him "Jimbo" had "got[ten] down" (killed
someone) for the gang. The August 13, 1991, videotape shows Ricky
Jivens stating: "Jimbo say okay ... I'm gonna handle my business.
You know what I'm saying ... Jimbo got down, man ... [Jimbo]
graduated...." This corroborates Richardson's testimony about
Hull. Richardson recounted that Ricky Jivens told him that "Jimbo
did" Antonio Anderson. Richardson further testified that Ricky
Jivens told him that Hull taught him how to "cook" cocaine (to
transform it from powder hydrochloride form into base or crack
form).
Joselyn Hunter testified for the Government. She reported
that she bought crack from "Jimbo" Hull. Hunter testified that, on
the day her brother was murdered, she heard a volley of gunshots,
turned, and saw Hull in the passenger seat of the car speeding away
from Anderson's body. Another Government witness, Walter Moore,
also placed Hull at the murder scene, in the front passenger seat
of a car matching the general description furnished by Hunter.
A. Coconspirator Statements
Hull claims that the Government was unable to present any
direct evidence to connect him to the Ricky Jivens organization.
He submits that both CJR and Richardson were reciting hearsay
information.8 The Government contends that the testimony falls
8
The Government argues that Hull's evidentiary challenge to
coconspirator testimony has not been preserved for appeal. We
disagree. We have examined the record and find that counsel for
Hull appears (somewhat unartfully, and, perhaps, accidentally) to
have successfully preserved this issue for purposes of our
review.
within the hearsay exception of the Federal Rules of Evidence
801(d)(2)(E).
We do not endorse the proposition that all hearsay statements
made by coconspirators are admissible. For a coconspirator's
statement to be admissible under Rule 801(d)(2)(E), the statement
must have been made "during the course and in furtherance of the
conspiracy." Fed.R.Evid. 801(d)(2)(E); Bourjaily v. United
States, 483 U.S. 171, 173-75, 107 S.Ct. 2775, 2778, 97 L.Ed.2d 144
(1987). Nonetheless, "[t]his court applies a liberal standard in
determining whether a statement is made in furtherance of a
conspiracy." United States v. Santiago, 837 F.2d 1545, 1549 (11th
Cir.1988). In addition, the determination of whether a statement
is made in furtherance of a conspiracy is a determination of fact
that will be disturbed only if clearly erroneous. See Bourjaily,
483 U.S. at 179-81, 107 S.Ct. at 2781; United States v. Turner,
871 F.2d 1574, 1581 (11th Cir.), cert. denied, 493 U.S. 997, 110
S.Ct. 552, 107 L.Ed.2d 548 (1989).
The security of the drug gang through the loyalty of its
members was always a priority to Ricky Jivens. Two witnesses
testified to statements made by Jivens as to Hull's loyalty to the
gang. We reviewed these statements and conclude that the subjects
discussed were made during and in furtherance of the conspiracy.
The evidence shows that Jivens told CJR that Hull was instructed to
shoot people three times in the head as his personal signature.
The evidence shows that Jivens told Richardson that Hull had
"gotten down" for the gang, that "Jimbo did" Anthony Anderson, and
that Hull had taught him how to "cook" cocaine. It is evident that
a conspiracy was present and that Hull was a trusted member. Under
the liberal standard applied by this Court, the district court's
conclusion that these statements were made in furtherance of the
conspiracy and admissible under Rule 801(d)(2)(E) is not clearly
erroneous.
B. Sufficiency of the Evidence to Support the Jury Verdict
Hull claims that the evidence at trial was insufficient to
support his convictions under either the 21 U.S.C. § 846 conspiracy
count and the 18 U.S.C. § 924(c) weapons count. Hull contends that
the Government's case hinged upon the testimony of CJR who was
later impeached in full. The Government claims that any
discrediting of CJR's testimony is strictly limited to the Anderson
homicide, about which CJR was not lying, but merely mistaken. The
Government further asserts that Hull's involvement in that slaying
was corroborated by two independent eyewitnesses, Hunter and
Moore.9
The evidence shows that Hull was a trusted member of the Ricky
Jivens drug gang. The evidence also shows that Hull used firearms
in furtherance of the conspiracy. CJR testified that Hull was
present at planning sessions on the back porch of Ricky Jivens'
mother's house. This alone suggests that Hull is a trusted
confederate of the organization. It is doubtful, given Ricky
Jivens' strong propensity for violence and his paranoia about
having a member turn on him, i.e., the murder initiation
9
With regard to the frailties of CJR, Hunter and Moore as
witnesses, credibility decisions are matters for the jury.
United States v. Branca, 677 F.2d 59, 61 (11th Cir.1982). The
jury, by their verdict, at the very least, found CJR to be a
credible witness.
requirement, that Jivens would allow Hull to sit in on these back
porch meetings without Hull's being a full-fledged member of the
gang. Viewing the evidence in the light most favorable to the
Government, a reasonable trier of fact could have found that the
evidence established Hull's guilt beyond a reasonable doubt. We
find the evidence at trial sufficient to support the jury verdict.
IV. CONCLUSION
For the above reasons, we affirm Hull's conviction and
sentence.
AFFIRMED.