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United States v. Haire

June 22, 2004

UNITED STATES OF AMERICA, APPELLEE
v.
JOHN HAIRE, APPELLANT



Appeal from the United States District Court for the District of Columbia (No. 00cr00426-01)

Before: Sentelle, Henderson and Garland, Circuit Judges.

The opinion of the court was delivered by: Sentelle, Circuit Judge

Argued November 20, 2003

John Haire appeals from a judgment of conviction entered upon a jury verdict of guilty of two counts of drug conspiracy in violation of 21 U.S.C. §§ 846 and 963. He assigns errors relating to venue, discovery, and admission of evidence. Upon review, we conclude that the district court committed no error and affirm its judgment for the reasons more fully set out below.

I. BACKGROUND

Appellant stood trial under an indictment charging him with one count of conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 846 and one count of conspiracy to import five kilograms or more of cocaine in violation of 21 U.S.C. § 963. The evidence at trial disclosed that the investigation leading to appellant's indictment began with the arrest of Herbert Leininger in November of 1999 for offenses involving multiple kilograms of cocaine. Leininger subsequently pleaded guilty and cooperated with law enforcement, principally giving evidence against his source, Kevin Cleary, evidence which ultimately led to the conviction of Kevin Cleary, his brother Michael Cleary, and Kevin Cleary's source Terry Colligan. Leininger had never met appellant Haire and did not know his name, but did give information to authorities that he knew that one of Colligan's drivers (apparently Haire) was in Tampa, Florida.

The brothers Cleary thereafter followed Leininger's path and pleaded guilty under agreements to cooperate with investigators. Kevin Cleary admitted buying cocaine from Colligan over a six-year period from 1993 to 1999 and selling it to Leininger, who transported it to the District of Columbia. Cleary identified appellant as Colligan's partner in at least the first two years of the operation, and described appellant as the person who drove the cocaine from Mexico into the United States. As part of his cooperation, Kevin Cleary set up a meeting with Colligan at Cleary's home. The meeting was audio- and video-taped and involved discussion of importing more cocaine from Mexico and Belize. Colligan was subsequently arrested and, following the by then well-established precedent, pleaded guilty and agreed to cooperate.

As part of his cooperation, Colligan provided evidence against appellant and testified for the government at his trial. According to Colligan's testimony, he met appellant in the early 1990s in Florida. In 1993, appellant visited Colligan in Cancun, Mexico, where Colligan lived, and purchased a kilo of cocaine through a source introduced by Colligan. Thereafter, Colligan and appellant packaged the cocaine. Appellant flew with it to Nuevo Laredo, Mexico, and from there transported it by car across the border into the United States and back to Tampa, Florida. This transaction was the beginning of extensive dealing in cocaine by appellant, Colligan, and others. Colligan's cooperation with authorities after his own guilty plea included tape-recording telephone conversations with appellant. The conversations addressed cocaine smuggling and eventually resulted in appellant setting up a meeting in April, 2001, between himself and an undercover detective in Florida. After that meeting, appellant was arrested and admitted to extensive drug-related criminal activity.

At trial, in addition to the cooperating defendants discussed above, the prosecution offered substantial corroborating evidence. The only evidence connecting the conspiracy with Washington, D.C. was the evidence relating to the obtaining, possession, and distribution of several kilograms of cocaine in the District by Herbert Leininger. After presentation of evidence by the defense, the district court submitted the case to the jury. The jury found defendant guilty of both counts. The district court entered concurrent sentences of 240 months incarceration followed by five years of supervised release on the two counts. Appellant brought the present appeal.

II. ANALYSIS

Appellant alleges a plethora of errors by the district judge, lumping them under three headings: venue; discovery and cross-examination rights; and, "inadmissible other wrongs, irrelevant and prejudicial evidence." While we have reviewed all of appellant's allegations of error, and find none of them to warrant relief, most do not require separate discussion. As to those that do, none of the assignments states a reversible error, if, indeed, any of them state error at all.

A. Venue

Defendant first contends that venue in the District of Columbia was improper. He separately claims that there was insufficient evidence that the alleged crimes occurred in the District of Columbia. Stripped of rhetoric, these two claims are indistinguishable. On the record, they are also meritless. We note at the outset that "the government bears the burden of establishing by a preponderance of the evidence that venue is proper with respect to each count charged against the defendant." United States v. Lam Kwong-Wah, 924 F.2d 298, 301 (D.C. Cir. 1991). Therefore, we review the sufficiency of the evidence, doing so "in the light most favorable to the government," id., as with any other sufficiency question on appeal. Appellant's argument, as we understand it, is that the government proved not one but several conspiracies; if appellant was involved in any conspiracy, it was with Colligan's roommate and had no nexus to the District of Columbia. The government counters that there is one continuing conspiracy linking the co-conspirators from their Mexico purchases to their Washington, D.C., sales and possession for sale. As to whether the evidence proved a single conspiracy or multiple conspiracies, we have held that issue "is primarily a question of fact for the jury." United States v. Childress, 58 F.3d 693, 709 (D.C. Cir. 1995) (internal quotation marks and citations omitted). Appellate review is "limited to whether there is sufficient evidence -- when viewed in the light most favorable to the government -- to support a jury finding of a single conspiracy agreed to by the individual appellants." Id.

The evidence at trial, taken in the light most favorable to the prosecution, supported a jury finding of what is ...


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