United States v. Dwight Ferguson (91-3866) Dexter Thompson (91-3955) and Robert L. Shackelford (91-3954)

Citations: 23 F.3d 135; 1994 U.S. App. LEXIS 9475Docket: 91-3866, 91-3954, 91-3955

Court: Court of Appeals for the Sixth Circuit; May 3, 1994; Federal Appellate Court

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Dwight Ferguson, Dexter Thompson, and Robert L. Shackelford were convicted of conspiracy to distribute and distributing cocaine. They appealed their convictions and sentences. The United States Court of Appeals for the Sixth Circuit affirmed the convictions but reversed the sentences for Ferguson and Shackelford. 

The case originated from an undercover investigation by the Lake County Narcotics Agency following the arrest of informant Adam Noble. To avoid prosecution, Noble agreed to assist law enforcement, during which he made multiple cocaine purchases from various individuals, including Ferguson's associates. Noble identified Ferguson as the manager of the local drug trade and implicated Thompson and Shackelford as suppliers, while also naming several others as Ferguson's operatives.

Throughout the investigation, Noble made several purchases from different suppliers, including Ferguson, who was present during some transactions and directed purchases to Thompson. Noble's testimony linked Ferguson to the drug distribution activities, including conversations that highlighted Ferguson's concerns over the actions of other dealers. The court's ruling reflects the sufficiency of evidence supporting the convictions despite the reversal of certain sentences.

Noble testified he never purchased drugs from Shackelford but had contact with him during undercover operations on three occasions. On January 4, Shackelford was present while Noble bought crack from Thompson. On January 15, Thompson referred Noble to Shackelford for a purchase, but the deal with a man named Robb fell through when he did not show up. On February 7, Noble attempted to negotiate another purchase with Robb, but this also failed. A customer service representative confirmed Shackelford had purchased four pagers in 1990, including one used by Thompson, which was recovered by Officer Smith during Shackelford's arrest.

On March 7, 1991, a federal grand jury indicted Shackelford and others on fourteen counts, including conspiracy to distribute cocaine under 21 U.S.C. Secs. 841, 846. Arthur and Deborah Green pled guilty to the conspiracy charge, followed by John Landingham and Marvin Landingham. Ferguson, Sheffey, Thompson, and Shackelford went to trial on June 24, where the jury pool comprised only three black jurors, and the government used a peremptory challenge against one, resulting in an all-white jury.

After an eight-day trial, Ferguson, Thompson, and Shackelford were convicted on all charges, while Sheffey was acquitted of conspiracy but found guilty on other counts. Sentences were handed down: Ferguson received 135 months, Shackelford 121 months, and Thompson 78 months, each followed by four years of supervised release. An appeal was filed shortly thereafter.

Ferguson, Shackelford, and Thompson argue that the evidence presented at trial was inadequate to support their conspiracy convictions. The court emphasizes that it does not evaluate evidence or witness credibility but assesses whether a rational jury could find the crime's elements proven beyond a reasonable doubt when viewing the evidence favorably for the prosecution. Circumstantial evidence alone can be sufficient for a conviction, and does not need to eliminate every reasonable hypothesis of innocence.

To secure a conviction under 21 U.S.C. § 846, the government must demonstrate an agreement among conspirators to violate drug laws and establish that each conspirator knew of, intended to join, and participated in the conspiracy. Formal agreement is not necessary, but sufficient evidence must link each defendant to the conspiracy beyond a reasonable doubt—all three defendants assert that the government did not meet this burden.

Ferguson's conviction challenge fails as testimony from Adam Noble indicates that Ferguson controlled the drug trade in Lawnview, had arrangements with co-defendants, provided contacts for cocaine sources, and participated in sales, leading a reasonable jury to conclude his involvement in the conspiracy.

Thompson's challenge is also unpersuasive. He sold crack cocaine to Noble on two occasions, with the first sale facilitated by Ferguson. He introduced Noble to Shackelford and used Shackelford’s pager for setting up sales. This evidence, viewed in favor of the prosecution, sufficiently supports Thompson's conspiracy conviction.

Shackelford's sufficiency of evidence claim was rejected based on testimonies from Noble and Officer Smith, who stated they contacted Shackelford regarding cocaine purchases. A pager belonging to Shackelford was recovered at his arrest, and additional evidence linked Shackelford to the purchase orders for Thompson's pager. Noble identified Shackelford as a drug supplier and testified that he arrived in Painesville to sell drugs on January 4, supporting the jury's conclusion that Shackelford was aware of and participated in the conspiracy.

Ferguson, Shackelford, and Thompson challenged the prosecution's peremptory strike against a black juror, asserting a violation of their equal protection rights under Batson v. Kentucky. To establish a prima facie case of discrimination, they needed to demonstrate their racial identity, the prosecution's use of strikes against their race, and circumstances suggesting intentional discrimination. While they met the first two criteria, it was unclear if they sufficiently inferred discrimination due to missing details about the jury selection process after the court reporter's death. The district court denied the motion for a mistrial.

Even if a prima facie case was established, the prosecution argued it had a neutral reason for striking juror Spencer, citing his past negative experience with police. The court could not determine if this explanation was pretextual, given the lack of comprehensive record details. Deference was given to the district court’s findings, leading to the affirmation of the denial of the Batson challenge.

Ferguson and Shackelford contest the district court's finding that they were accountable for over thirty-five grams of cocaine base, asserting that the government did not provide adequate evidence linking them to the total distribution of the conspiracy. The appellate court generally accepts a district court's factual findings unless they are clearly erroneous. The district court is advised to exercise caution in determining accountability, ensuring a defendant is likely responsible for the amount attributed to them. It cannot simply estimate the highest possible quantity without explicitly citing supporting evidence and making specific findings based on a preponderance of the evidence.

Shackelford and Ferguson argue that they were not aware of the full scope of the conspiracy and that Shackelford joined only after January 15, when he first negotiated with another co-conspirator. The district court did not provide specific findings on the duration of their involvement or the scope of their agreed criminal activity, incorrectly presuming accountability for the total amount of drugs solely based on their conspiracy conviction. The appellate court highlights the necessity for differentiation among co-conspirators and emphasizes that a sentencing judge cannot simply impose sentences based on the total narcotics involved in the conspiracy without proper findings. Due to the district court's failure to make these necessary factual determinations, the sentences for Shackelford and Ferguson are vacated.

Shackelford contests the inclusion of negotiated but undelivered cocaine amounts in calculating his base offense level. The court clarified that a sentencing court is not required to include uncompleted transaction weights automatically. Instead, it must assess the defendant's intent and capability to produce the negotiated amount under Application Note One to Guideline Section 2D1.4. Specifically, if the court concludes the defendant did not intend to produce or could not reasonably produce the drugs, those amounts should be excluded. The district court did not make such findings, necessitating a remand for resentencing.

Ferguson argues against his sentence enhancement under Section 3B1.1(b) for being a manager or supervisor of five or more participants. This section allows for a three-level increase if the defendant managed or supervised criminal activities involving five or more participants. The court assesses factors such as decision-making authority and control over others. Testimony indicated Ferguson managed twenty to thirty "foot soldiers," sourced cocaine for distribution, and facilitated sales, confirming that the criminal activity involved at least five participants. Thus, the district court's enhancement was justified.

The convictions of Dwight Ferguson, Dexter Thompson, and Robert L. Shackelford are affirmed, but the sentences for Ferguson and Shackelford are reversed and remanded for resentencing. Additionally, due to the court reporter's death, the parties prepared a recount of the jury selection proceedings without the required district court approval, violating Federal Rule of Appellate Procedure 10(c).