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U.S. v. SINGLETON

December 4, 2001

UNITED STATES OF AMERICA, PLAINTIFF,
v.
CORNELIUS SINGLETON, DEFENDANT.



The opinion of the court was delivered by: Paul L. Friedman, District Judge.

  OPINION

This matter is before the Court on the motion of defendant Cornelius Singleton to dismiss Count One of the indictment on grounds of double jeopardy and on his separate motion to dismiss Counts One and Two on grounds of double jeopardy. The government filed oppositions to the motions, and the Court heard oral argument on August 31, 2001 and September 24, 2001.

I. BACKGROUND

Cornelius Singleton was indicted by a grand jury in the United States District Court for the Southern District of Florida on March 16, 2000. See Exhibit 2 to Defendant's Memorandum in Support of Motion to Dismiss Count One of the Indictment on Grounds of Double Jeopardy ("Def.Mot.Exh. 2"). He was charged with knowingly and intentionally combining, conspiring, confederating and agreeing with six other named defendants and "with others known and unknown to the Grand Jury" to possess with the intent to distribute a Schedule II controlled substance, a mixture and substance containing a detectable amount of cocaine, in violation of Title 21, United States Code, Section 841(a)(1), all in violation of Title 21, United States Code, Section 846. Def. Mot. Exh. 2. The conspiracy allegedly ran from on or about January 1, 1996 to February 26, 2000 in Miami, Miami-Dade County, in the Southern District of Florida, "and elsewhere." Id. In addition to the conspiracy count, the indictment contained two substantive counts charging a number of the defendants with possession with intent to distribute cocaine, but defendant Singleton was charged in neither of these counts. See id. at 2-3.

Superseding indictments were returned in Florida on April 6, 2000, August 31, 2000, and September 21, 2000. See Def. Mot. Exhs. 3-5. In each of the superseding indictments, defendant Singleton was charged with the same conspiracy covering the same time period, and his co-defendants remained largely the same. The forfeiture provision changed from indictment to indictment, and the conspiracy count was modified in the final iteration to take account of the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Def. Mot. Exh. 5 at 2. Singleton was never charged in any of the substantive counts.

On March 16, 2000, a grand jury in the United States District Court for the District of Columbia returned a one-count indictment charging defendant Singleton and four other individuals-Phyllis Marie Webster, Michael Anthony Johnson, Byron Lamont McDade and Benjamin Gilbert Ashe — "and other persons known and unknown to the grand jury" with unlawfully, knowingly and willfully combining, conspiring, confederating and agreeing to distribute and possess with the intent to distribute a mixture and substance containing a detectable amount of cocaine, a Schedule II controlled substance, in the amount of five kilograms or more, in violation of Title 21, United States Code, Sections 841(a) and (b)(1)(A)(ii), all in violation of Title 21, United States Code, Section 846. Def. Mot. Exh. 16. The conspiracy allegedly began on or about January 1, 1993 and continued to on or about March 16, 2000; it allegedly took place in the District of Columbia, the Eastern District of Virginia, the District of Maryland, the Southern District of Florida and elsewhere.*fn1 None of the Florida defendants except Singleton was named in this indictment.

A superseding indictment, adding Lionel Nunn as a defendant, was returned on April 20, 2000; the start date of the conspiracy was changed to January 1, 1994. See Def. Mot. Exh. 17. Another superseding indictment, adding Lauren Jefferson (defendant Nunn's wife) as a defendant and adding an additional count, charging her and Nunn (but not defendant Singleton) with money laundering, was returned on March 29, 2001. See Def. Mot. Exh. 18. Yet another superseding indictment, this one adding a count charging defendant Singleton with engaging in a continuing criminal enterprise, in violation of Title 21, United States Code, Sections 848(a) and (b), was returned on August 9, 2001. This indictment names only Cornelius Singleton and Byron McDade as defendants. Former co-defendants Webster, Johnson, Ashe and Nunn — all of whom have entered guilty pleas — are now named as unindicted co-conspirators, as are "other persons known and unknown to the grand jury."

Count Two of the August 9, 2001 superseding indictment charges defendant Singleton with "unlawfully, knowingly and intentionally engag[ing] in a continuing criminal enterprise" from January 1991 until March 16, 2000, by violating Title 21, United States Code, Sections 841(a)(1), 843 and 846, all in violation of Title 21, United States Code, Sections 848(a) and (b). According to the indictment, the predicate violations include (1) the conspiracy charged in Count One; (2) many of the Overt Acts (specifically, Overt Acts 1, 3, 4, 5, 6, 7 and 8) listed in Count One; and (3) various other narcotics conspiracies in the District of Columbia, Tennessee, Georgia, Maryland and New York, all of which are said to be a part of the charged continuing criminal enterprise. All but one of these conspiracies are within the same time frame as Count One of the District of Columbia indictment.

On October 25, 2000, defendant Singleton was convicted by a jury in the Southern District of Florida of conspiring to possess five kilograms or more of cocaine with the intent to distribute it. The evidence at trial showed that during the period from January 1, 1996 to February 26, 2000, defendant Singleton obtained multi-kilogram quantities of cocaine from suppliers in Florida — specifically, from his codefendant Giraldo Orlando Fernandez and one Marcelino Casasnovas, who testified for the government at Singleton's trial — and then shipped the cocaine through a courier, Ronald Lucas, to Washington, D.C. for distribution by Phyllis Webster and Michael Johnson.*fn2 Following his conviction, defendant Singleton was sentenced to 285 months in prison.

II. THE FACTS

Through a series of Title III wire intercepts on the telephones of Phyllis Webster and Michael Johnson in the District of Columbia — two of defendant Singleton's original codefendants in this case — law enforcement agents learned that Singleton was supplying kilogram shipments of cocaine from Miami, Florida to Webster and Johnson in the District of Columbia, by use of a courier, Ronald Lucas. See Def. Mot. Exh. 3 at 20-22. On this basis, the FBI in Florida obtained authorization under Title III to intercept conversations on defendant Singleton's telephone in Miami, which revealed that Singleton's cocaine source was Fernandez with whom Singleton subsequently was indicted. See Def. Mot. Exh. 21. By the time of the trial in Florida, only three defendants remained — defendant Singleton, Giraldo Orlando Fernandez and Hugo Orga.*fn3 The trial in Florida lasted four days. Among the witnesses at trial were FBI Special Agent Kevin Ashby (the lead FBI agent in this case), Michael Anthony Johnson, Ronald Lucas, and Phyllis Webster.

In his opening statement, the prosecutor told the jury:

[I]n Count One the government expects our evidence to show that, during the period of 1996 to 2000 — not always, not everyone was in the conspiracy at the same time for the full period of time — Cornelius Singleton was shipping multi-kilograms of cocaine — a kilogram is 2.2 pounds — to the District of Columbia from Florida for distribution in the District of Columbia and other areas. This continued through 1999.
You will have the opportunity, we expect, to hear from the distributors from the District of Columbia who have been arrested and charged in that district, Phyllis Maria Webster and Michael Anthony Johnson.
You will also hear from the courier who has been arrested and charged, Ronald Lacas, who distributed the cocaine in the sense that he took it form Miami from Cornelius Singleton and transported it to the District of Columbia and gave it to these other people.
You will further hear from one of the defendant Singleton's local suppliers Marcelino Casasnovas, who is in custody, who supplied him with large quantities of cocaine.
Finally, as to the conspiracy, you will hear from a supplier who will testify that Giraldo Orlando Fernandez, one of the co-defendants here, was also one of Cornelius Singleton's suppliers.
A part of the evidence will involve, as you have heard, wiretaps. In 1999, the Washington Field Office of the FBI conducted a court authorized wiretap of Phyllis Maria Webster, who is one of the D.C. distributors. It was of her cell phone in the D.C. area. You will hear two calls from this interception regarding shipments between Singleton and Webster.
Soon after this wiretap, the FBI in Miami conducted a court-authorized wiretap on the defendant Singleton's cell phone. You will hear several calls from this interception regarding orders for cocaine placed with the defendant Singleton.
The evidence will, of course involve transcripts. You will hear recordings and see transcripts of the recorded conversations that were intercepted that we feel are relevant to these charges.
And you will finally hear from the cooperating individuals who have been charged in various jurisdictions as part of this conspiracy who will testify for the government.

Def. Mot. Exh. 6 at 19-23 (emphasis added).

At Singleton's trial in Florida, Phyllis Webster testified that she purchased 25 kilograms of cocaine from defendant Singleton for distribution in Washington, D.C. in June of 1996. Singleton shipped the drugs from Florida to the District of Columbia using Ronald Lucas as the courier. Webster testified that she had two or three additional drug deals with Singleton in 1996, each involving between 25 and 30 kilograms of cocaine. In each case Lucas would bring the cocaine from Florida, deliver it to Webster in Washington on consignment, and then pick up money from her and deliver it to Singleton in Florida. There were three or four similar transactions in 1997, each involving 50 to 60 kilograms of cocaine, and three or four in 1998, in the 50-kilogram range. Webster then testified about three quite specific cocaine transactions with Singleton in 1999: 60 kilograms in April, 80 kilograms on Memorial Day, and 60 kilograms on the 4th of July. Finally, Webster testified about visiting Singleton at his home in Florida in November 1999, at which time she helped him count money, and about certain telephone conversations with Singleton in which they discussed drug prices and drug amounts. See Def. Mot. Exh. 9 at 14-17; Def. Mot. Exh. 10 at 16-21.

Michael Johnson testified at the Florida trial that he also did several multi-kilogram drug deals with Singleton from 1996 to 1998 and that Lucas was always the courier. He said there were at least six such deliveries in 1996, each involving around 50 kilograms of cocaine, and similar transactions in 1997 and 1998. See Def. Mot. Exh. 9 at 66-69.

Ronald Lucas testified that he transported multi-kilogram shipments of cocaine in his van from Florida to Washington, D.C. and delivered the drugs to Webster and Johnson on consignment. After Webster and Johnson distributed the drugs, Lucas said he would pick up money from Webster and Johnson in Washington and deliver the money to Singleton in Florida. Most of the shipments were in the 50-kilogram range. Lucas testified that on at least six occasions in 1997 and 1998 Giraldo Orlando Fernandez brought multi-kilograms of cocaine to Singleton's home in Florida and loaded the drugs in Lucas' van for delivery to Webster and Johnson in Washington, D.C. See Def. Mot. Exh. 9 at 111-18.

At the conclusion of the evidence, the prosecutor made the following argument to the jury:

Now you heard from [Ronald] Lucas who was a courier for Singleton, and he testified that he knew Fernandez as "0". And that Fernandez would drop off 50 kilos at a time to Cornelius Singleton's condo on Shipping Avenue in Coconut Grove, which Lucus would then take to D.C. for distribution on behalf of Cornelius Singleton.
You heard from two of the distributors of Cornelius Singleton, and that would be Johnson and Webster.
Johnson has known Cornelius Singleton since 1991, and it was clear from the call you heard that they knew each other well enough to discuss amounts of money which Webster owed for cocaine and to know why Singleton would not ship cocaine during the Thanksgiving season.
Johnson testified that he dealt with Cornelius between 1996 and '98 in 50-kilogram shipments for each transaction. He would discuss the prices directly with Cornelius Singleton.
You also heard from Phyllis Webster. She was also somebody that Cornelius Singleton supplied. It would be one level down. And Webster would then distribute, on her own, in Washington, D.C.
She testified that she received also multi-kilogram quantities from Singleton. The [intercepted telephone] calls discuss multi-kilogram transaction[s] in which quantity and prices are discussed.
It is especially telling that the numbers called out by Phyllis Webster to Singleton in the calls represented the kilograms which Webster received from Cornelius Singleton.
Let me show you how this works. I am going to refer you to what was introduced as Government's Exhibit 12 [Def. Mot. Exh. 11]. This was the drug ledger that was found in the master bedroom of Cornelius Singleton.
She goes on. On page 3, about a quarter of the way down where Webster says: "I already know the last two times you charged me. The very last two times you charged me 2150, and the first time before that I ...

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