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UNITED STATES v. WALKER

January 9, 1996

UNITED STATES
v.
TYRONE WALKER, WALTER DIAZ, and TONY WALKER, Defendants.



The opinion of the court was delivered by: MCAVOY

 DECISION & ORDER

 Tyrone Walker and Tony Walker have moved to dismiss the Count One CCE charges against them on the ground that the government has failed to prove beyond a reasonable doubt the fourth essential element of engaging in a Continuing Criminal Enterprise -- they claim that the proof will not support a rational jury's conclusion that they each acted in concert with five or more other persons "with respect to whom [they] occupied a position of organizer, a supervisory position, or any other position of management." 21 U.S.C. § 848(c)(A). The Court stresses that the following discussion identifies only the minimum evidence in the record justifying, in the Court's view, submission to the jury of the individuals who the government has alleged are managees, organizees or supervisees of the respective defendants.

 I. DISCUSSION

 A. Organizer, Supervisor or Manager:

 A jury should be instructed that the terms "organizer, supervisor or manager" should be given their everyday, ordinary meaning, implying the exercise of power or authority by a person who occupies some position of a management or supervision. United States v. Scarpa, 913 F.2d 993, 1007 (2d Cir. 1990) An individual may be said to be "managed" by a defendant where it is demonstrated that the "defendant exerted some type of influence over [an] individual as exemplified by that individual's compliance with the defendant's directions, instructions or terms." United States v. Possick, 849 F.2d 332, 336 (8th Cir. 1988) (citations omitted).

 A defendant acts as a "supervisor" where he "gives orders or directions to another person who carries them out." United States v. Apodaca, 843 F.2d 421, 426 (10th Cir.), cert. denied, 488 U.S. 932, 102 L. Ed. 2d 342, 109 S. Ct. 325 (1988). A defendant acts as an "Organizer" when he "puts together a number of people engaged in separate activities and arranges them in their activities in one essentially orderly operation or enterprise." United States v. Patrick, 965 F.2d 1390, 1397 (6th Cir. 1992).

 A particular defendant need not be the sole or only supervisor or manager of the activities or persons in question, nor have enjoyed precisely the same superior-subordinate relationship with each of the persons allegedly organized, supervised and managed. Nor is personal contact a perquisite to establishing the requisite relationship between a defendant and an underling. United States v. Cruz, 785 F.2d 399, 407 (2d Cir. 1986) ("The statute does not require personal contact between the leader and each underling."). Finally, CCE defendants can be organizers, supervisors or managers of others, and still have been organized supervised or managed by their CCE co-defendants. See United States v. Baker, 10 F.3d 1374 (9th Cir. 1993) ("Because § 848 deals with individual liability, a CCE defendant may be an organizer, supervisor or manager in the predicate offenses underlying his CCE conviction and a subordinate in a predicate offense underlying another's CCE conviction. In other words, if one meets all the statutory requirements individually, he may properly be convicted under § 848 even though he himself was 'managed.'"), cert. denied, U.S. , 115 S. Ct. 330 (1994).

 1. Tyrone Walker:

 For purposes of this motion Tyrone Walker concedes that the record contains sufficient evidence to show that he managed, supervised or organized Wilfred "Josh" Pettway, Bambi Littlefield, and Walter Diaz. He denies, however, that a reasonable jury could conclude that the requisite relationship existed between him and the other individuals whom the government claims he managed, supervised or organized. *fn1"

 a. Toni Lopez, Barbara Slater & Stacey Wahl:

 As to Toni Lopez, Barbara Slater, and Stacey Wahl, Tyrone Walker maintains that the evidence shows only that he sold cocaine to these three. Tyrone Walker argues that a mere buyer-seller relationship, is insufficient to satisfy the fourth CCE element. While the Court agrees that such a relationship, without more, is insufficient to satisfy the statute, the Court finds that a reasonable jury could conclude from the testimony of these three woman alone, that they were more than mere purchasers of Tyrone Walker's alleged product. The jury could reasonably conclude that all three woman were active members of an ongoing network of cocaine distribution managed and organized by Tyrone Walker.

 Toni Lopez testified that Tyrone walker lived with her for a brief period during the alleged CCE, (Tr. at 2076) and that from the day he moved in, Tyrone Walker kept cocaine in her home and used her home as a base of operations. (Tr. at 2076-78). This testimony alone is sufficient to establish that Toni Lopez was managed and organized by Tyrone Walker. See United States v. English, 925 F.2d 154, 157 (6th Cir.) (individual with knowledge of defendant's drug operation who allows defendant to use home to store narcotics establishes supervision), Cert. Denied, 501 U.S. 1210, 115 L. Ed. 2d 983, 111 S. Ct. 2810 (1991); Possick, 849 F.2d at 337 ("acquiescing in the use of her home for the storage, preparation and sale of cocaine . . . indicate[s] . . . membership in defendant's organization under his management"); United States v. Lueth, 807 F.2d 719, 732 (8th Cir. 1986) (defendant's use of another's home to conceal or process drugs found to be evidence of that defendant's dominant or managerial position").

 When this testimony is read in conjunction with Lopez's further testimony that she made five or six compensated trips to New York city with Tyrone Walker, at his request, to purchase cocaine (Tr. at 2088) see Possick, 849 F.2d at 336 ("accepting paid travel indicates membership in organization) and that she continuously sold cocaine for Tyrone Walker for a percentage of the profits therefrom during the relevant period (Tr. at 2095-2100), there is more than sufficient evidence from which a jury could conclude that Toni Lopez was managed, supervised and organized by Tyrone Walker. English, 925 F.2d at 157 (person under defendants organization or supervision where she knew about the drug operation, took orders directly from the defendant and helped in the drug business) (citation omitted)).

 If believed, Barbara Slater and Stacey Wahl's testimony in its totality likewise provides strong evidence establishing that these woman sold cocaine for Tyrone Walker on a continuing and organized basis on ...


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