U.S. v. Mickens

Page 1323

926 F.2d 1323

32 Fed. R. Evid. Serv. 614

UNITED STATES of America, Appellee, Cross-Appellant, v. Thomas MICKENS, Anthony Jacobs, Shelby Kearney, Defendants-Appellants Bettina Jacobs Celifie, Defendant-Appellant, Cross-Appellee.

Nos. 157-161, Dockets 90-1061 to 90-1064 and 90-1097.

United States Court of Appeals Second Circuit.

Argued Oct. 25, 1990.

Decided Feb. 26, 1991.

John L. Pollok, New York City (Michael H. Gold, Susan C. Wolfe, Hoffman & Pollok, New York City of counsel), for defendant-appellant Mickens.

Robert L. Ellis, New York City, for defendant-appellant Kearney.

Georgia J. Hinde, New York City (Vivian Shevitz, New York City of counsel), for defendant-appellant Jacobs.

Chris P. Termini, Melville, N.Y. (Scalzi & Nofi, of counsel), for defendant-appellant, cross-appellee Celifie.

Kirby A. Heller, Asst. U.S. Atty., E.D.N.Y. (Andrew J. Maloney, U.S. Atty., Matthew E. Fishbein, Susan Corkery, Asst. U.S. Attys., E.D.N.Y., of counsel), for appellee, cross-appellant.

Before MESKILL and ALTIMARI, Circuit Judges, and METZNER, District Judge. ^*

ALTIMARI, Circuit Judge:

Defendants-appellants Thomas Mickens, Anthony Jacobs, Shelby Kearney, and Bettina Jacobs Celifie appeal from judgments of conviction, entered in the United States District Court for the Eastern District of New York (Thomas C. Platt, Chief Judge).

Following a four-month jury trial, Mickens was convicted of conspiracy to distribute and to possess with intent to distribute cocaine, in violation of 21 U.S.C. Sec. 846 (1988); conspiracy to defraud the United States, in violation of 18 U.S.C. Sec. 371 (1988); four counts of income tax evasion, in violation of 26 U.S.C. Sec. 7201 (1988); one count of filing a perjurious income tax return, in violation of 26 U.S.C. Sec. 7206(1) (1988); eight counts of money laundering, in violation of 18 U.S.C. Sec. 1956(a)(1)(B)(i) & (ii) (1988); and, one count of structuring a financial transaction as part of a pattern of illegal activity, in violation of 31 U.S.C. Sec. 5324(3) (1988). Shelby Kearney and Bettina Jacobs Celifie were each convicted of conspiracy to defraud the United States, in violation of 18 U.S.C. Sec. 371, and one count of money laundering, in violation of 18 U.S.C. Sec. 1956(a)(1)(B)(i). Celifie was also convicted of one count of structuring a financial transaction as part of a pattern of illegal activity, in violation of 31 U.S.C. Sec. 5324(3). Anthony Jacobs pleaded guilty to conspiracy to distribute cocaine, in violation of 21 U.S.C. Sec. 846; conspiracy to defraud the United States, in violation of 18 U.S.C. Sec. 371; and, two counts of distributing cocaine, in violation of 21 U.S.C. Sec. 841(a)(1) & (b)(1)(C).

On appeal, defendants-appellants Mickens, Kearney, and Celifie contend that comments made by the district court during trial deprived them of their constitutional right to a fair trial. They also challenge the court's denial of a motion to suppress certain evidence, its rulings on various evidentiary questions posed during the course of the trial, and its instructions to the jury regarding the elements of a section 1956 violation. Moreover, they question the constitutionality of the currency reporting requirements of 31 U.S.C. Sec. 5313 (1988). Defendant-appellant Jacobs appeals from his sentence of imprisonment. He contends that, in calculating his offense level, the district court improperly attributed to him the entire quantity of narcotics for which Mickens was found responsible. The government cross-appeals from the district court's decision to downwardly depart in sentencing defendant-appellant Celifie.

For the reasons set forth below, the judgments of the district court are affirmed in part, reversed in part, and remanded.

BACKGROUND

Between 1984 and 1988, defendant-appellant Thomas Mickens directed a lucrative cocaine distribution network in Queens, New York. At trial, two law enforcement officers testified about numerous undercover cocaine purchases from individuals identified as Mickens' underlings. For example, on two separate occasions undercover officer Austin Fields purchased cocaine from defendant-appellant Anthony Jacobs, a reputed "lieutenant" in the Mickens organization. On another occasion, surveillance agents spotted Mickens in the vicinity of a narcotics transaction between undercover Officer Terance Miller and another Mickens' associate, George Jenkins. Officer Miller also purchased cocaine directly from Mickens while both men were seated in an undercover police car.

In addition to the direct evidence of narcotics activity, the prosecution presented evidence of Mickens' lavish spending. The testimony of several automobile salesmen and insurance agents connected Mickens to the purchase of eighteen automobiles, costing a total of approximately $556,000. Trial evidence also established that Mickens purchased some sixteen properties, including commercial property in Queens, a $730,000 residence in Dix Hills, New York, a residence in Miami, Florida, and a condominium in California. Mickens' former attorney testified that he assisted Mickens in purchasing several properties using cash and money orders. He also testified that he helped Mickens launder money by preparing contracts and closing documents that significantly understated the properties' actual purchase prices.

Additional evidence of Mickens' automobile and real estate purchases was obtained during a warrant-authorized search of the Dix Hills residence. The warrant permitting the search was obtained on the basis of observations made by FBI agent Nerisa Pilafian during a "protective sweep" of the premises in connection with Mickens' arrest. Mickens moved before the district court to suppress the evidence obtained from the Dix Hills residence, claiming that Agent Pilafian's protective sweep was not justified by the circumstances of the arrest. This motion was denied.

Many of Mickens' automobile and real estate purchases were accomplished through the use of nominees, including defendants-appellants Kearney and Celifie. For example, trial evidence established that Kearney, who was Mickens' girlfriend, acted on Mickens' behalf in the purchases of property in Hempstead, New York and the residence in Dix Hills, New York. The prosecution also presented evidence that Bettina Jacobs Celifie acted as Mickens' nominee in purchasing the California condominium, as well as a $133,350 yacht.

Following a four-month jury trial, defendant-appellant Mickens was convicted of, inter alia, conspiracy to distribute and to possess with intent to distribute cocaine, conspiracy to defraud the United States, income tax evasion, and money laundering. He was sentenced to an aggregate term of imprisonment of thirty-five years, a fine of $1,000,000, and a special assessment of $800. Defendants-appellants Kearney and Celifie were each convicted of conspiracy to defraud the United States and money laundering, and Celifie was also convicted of structuring a financial transaction as part of a pattern of illegal activity. Kearney was sentenced to concurrent five-year terms of imprisonment on each count, to be followed by two years' supervised release, a fine of $200,000, and a $100 special assessment. Celifie was sentenced, pursuant to a downward departure, to concurrent eighteen-month terms of imprisonment on each count, to be followed by two years' supervised release, and a $150 special assessment. Defendant-appellant Anthony Jacobs, who pleaded guilty to conspiracy to distribute cocaine, conspiracy to defraud the United States, and distributing cocaine, was sentenced to 327 months' imprisonment, to be followed by a five-year term of supervised release, and a special assessment of $200. This appeal and cross-appeal followed.

DISCUSSION

I. The Unfair Trial Claim.

Defendants-appellants Mickens, Kearney and Celifie claim that the district court's admonitions to counsel and questions of witnesses deprived them of a fair trial. Defendants-appellants claim that the court "poisoned the courtroom atmosphere and prevented a fair trial." We disagree.

While many of the court's remarks were unfortunate, their cumulative effect was not a deprivation of the right to a fair trial. A trial judge " 'need not sit like a "bump on a log" throughout the trial.' " United States v. Bejasa, 904 F.2d 137, 141 (2d Cir.) (quoting United States v. Pisani, 773 F.2d 397, 403 (2d Cir.1985)), cert. denied, --- U.S. ----, 111 S.Ct. 299, 112 L.Ed.2d 252 (1990). As this Court recently stated:

Judges, being human, are not immune to feelings of frustration at the occasional antics or inartfulness of attorneys or impatience at the evasiveness of witnesses. Such feelings may give vent to remarks which, judged in isolation from the totality of the record through the dispassionate looking glass of hindsight, "would better have been left unsaid." Yet, analysis of such comments, taken out of context of the entire record, is not the proper basis for review. Rather, we must make "an examination of the entire record," in order to determine whether the defendant received a fair trial.

Id. at 141 (quoting United States v. Robinson, 635 F.2d 981, 985 (2d Cir.1980), cert. denied, 451 U.S. 992, 101 S.Ct. 2333, 68 L.Ed.2d 852 (1981), and United States v. Mazzilli, 848 F.2d 384, 389 (2d Cir.1988)). Viewing the record in the present case in its entirety, it is clear that defendants-appellants received a fair trial. The district court's occasional intemperate remarks did not substantially taint defendants-appellants' trial. It must be noted that these remarks were provoked to some extent by one defense counsel's despicable verbal assault on the court. That attorney's conduct was so egregrious that, after verdict, the court advised counsel that it intended to file a complaint with the Grievance Committee of the Eastern District of New York. Moreover, any possible prejudice to defendants-appellants was cured by the court's cautionary instruction. ¹ See United...