The opinion of the court was delivered by: ROY
The defendants, Michael E. Jones and Ralph M. Pfeister, were charged by indictment, along with twenty-one other individuals with various counts of drug offenses. The cases involving all of the defendants except Jones and Pfeister have been disposed of by the entering of guilty pleas by the defendants or dismissal by the Government. Defendants Jones and Pfeister were tried before the Court after the entry of jury waivers signed by the defendants. The Government orally advised the Court that it had no objection to the jury waivers. The Court approved the waiver and therefore, the requirements of Federal Rule of Criminal Procedure 23 were satisfied. The trial of the defendants was held before the Court on September 3, 1985 through September 9, 1985 and the Court has now received all of the post-trial briefs.
A. The defendant Michael E. Jones is charged in Count I with engaging in a continuing criminal enterprise by committing the offenses set forth in the Indictment and the Overt Acts in Count Two. 21 United States Code § 848.
B. The defendant Jones is charged in Count II with conspiring to possess with the intent to distribute methamphetamine, amphetamine, and cocaine.
It is alleged, as a part of the conspiracy, that Michael E. Jones would sell methamphetamine, amphetamine, and marijuana. The defendant Jones is mentioned in Overt Acts 1, 3, 4, 6, 7, 8, 9, 12, 13, 15, 17, 18, 20, 21, 24, 26, 27, 42, 44, 45 and 46. 21 United States Code § 846.
C. The defendant Jones is charged in Counts III, IV, V, VI, VII, IX and X with the knowing and willful distribution of amphetamine and methamphetamine. 21 United States Code § 841.
D. The defendant Jones is charged in Counts XXIII, XXIV and XXV with unlawful use of a communication facility in facilitating the commission of the conspiracy as alleged in Count II. 21 United States Code § 843(b).
II. Pfeister, Ralph M. (Pfeister was also charged in Count VIII, but during the course of the trial said Count was dismissed by the Government.)
A. The defendant Ralph M. Pfeister is charged in Count I with engaging in a continuing criminal enterprise by committing the offenses set forth in the Indictment and those specified in Count II Overt Acts. 21 United States Code § 848.
B. The defendant Pfeister is charged in Count II with conspiring to possess with the intent to distribute and to distribute methamphetamine, amphetamine, and cocaine. It is alleged, as a part of the conspiracy, that Pfeister would purchase and distribute marijuana, methamphetamine, and cocaine. The defendant Pfeister is mentioned in Overt Acts 6, 7, 13, 21, 26, 27, 29, 30, 31, 32, 33, 34, 35, 36, 37, 41, 43, 44, 45 and 46. 21 United States Code § 846.
C. The defendant Pfeister is charged in Counts XXIII, XXVI, XXVII and XXVIII with unlawful use of a communication facility in facilitating the commission of the conspiracy as alleged in Count II. 21 United States Code § 843(b).
The Government presented numerous witnesses who testified as to the relationship of Jones and Pfeister in various drug transactions, the methods they used in carrying out various drug transactions and the relationship of Jones and Pfeister to the people with whom they dealt.
One of the Government's principal witnesses was Jack Branch, who acted as a government informant. Branch testified in detail about the extensive drug operations of Jones, Pfeister and others associated with them. In 1984 Branch was arrested on a bank robbery charge and at that time Branch agreed with the state and United States authorities to cooperate and testify concerning drug investigations in Arkansas. He testified that he was paid expenses by the United States during the investigation.
Branch had numerous dealings with Michael Jones prior to the time he became a government informant. Both methamphetamine and marijuana were fronted to him by Jones on a consignment basis for an extended period of time. Branch had paid as much as $1,650.00 per ounce for amphetamine/methamphetamine, and received approximately one ounce per week from 1983 through March of 1984. Branch sold a total of ten to fifteen pounds of marijuana which he obtained from Jones. Jones was aware of the individuals to whom Branch sold, and Jones had others selling for him. Jones also directed Wally Kendrick and Branch to cease dealing with Ralph Pfeister when he learned they were obtaining methamphetamine directly from Pfeister.
Alan Koller became indebted to Branch and Branch in turn became indebted to Jones. Lonnie and Bobbie Staton were also buying from Koller and, when Jones discovered the Statons had also been buying from another individual, Jones informed Branch that he and Robert Crain had assaulted that individual.
When Branch became a government informant in 1984 he again made contact with Michael Jones and discussed getting back into the drug business with Jones.
Branch began making numerous purchases of drugs from Jones and was searched before and after each purchase. His clothing and his vehicle were searched thoroughly on each occasion by the appropriate government agents. He was also under surveillance each time he made a purchase from the Jones residence. Branch's purchases as an informant began in April, 1984 and continued through September of 1984. Branch purchased anywhere from one-eighth of an ounce to one ounce of amphetamine/methamphetamine from Jones on these numerous occasions.
Branch called Jones on April 12, 1984 to arrange payment for an April 10th purchase and at that time he inquired about going "up north" with Jones. Branch met with Jones on this date and Jones informed him that he was going to Harrison, Arkansas to dry out and pick up six ounces of amphetamine/methamphetamine and some marijuana. At one meeting with Branch, Jones discussed the fact that Alan Koller owed Jones for marijuana and amphetamines. Jones stated that he'd "fuck him up if I see him" and when Branch asked Jones what Koller had done, Jones stated: "Oh, I gave him a half pound the other day, here while back, week before last, and I told him 'Alan whatever you do, don't be late, this is your last chance. '" Jones also stated that he had informed Lonnie Ray Staton to stop dealing with Koller for "a while." Branch stated that his transactions always occurred in a part of Jones' house that Jones referred to as "the office."
At another meeting with Jones, Branch learned that one Robert Crain, aka Cowboy, and Jones were soon to be en route to Harrison, Arkansas to obtain more amphetamine/methamphetamine. During one of his visits to Jones' residence Branch saw Pfeister, Margaret Swanson and other individuals. On that occasion, Branch saw approximately eight ounces of a yellow-colored substance represented to him to be amphetamine/methamphetamine.
On May 2, 1984, Branch again saw the yellow substance at the Jones' residence. At this meeting Branch was wearing a body recording device. The recording reproduced a conversation between Jack Branch, Michael Edward Jones, Art Downs and Lloyd Chaney. In this conversation the participants discussed the sale of three firearms that were in the possession of Chaney, and Jones made a statement concerning a .41 caliber pistol that "this one's hot, this is the one Peg gave me." Jones confirmed that he had eight ounces of yellow substance and the parties discussed the sale and purchase of marijuana. Further, in this meeting Branch requested Jones' permission to purchase from Wally Kendrick and Jones stated "he wouldn't do him no good either . . . only place he can get it is from me."
Branch identified Government Exhibit #25, which is described as a .41 Ruger revolver, stating that it appeared to be similar to the gun which he observed on that date in Jones' residence. (John Spurgeon testified for the United States and identified the firearm as being seized from the residence of Robert Earl Crain. Charles Roark testified that the firearm had been stolen from his house sometime in February, 1982.)
Toward the end of May, 1984, Branch met at the Jones' residence with Jones, Robert Earl Crain and a number of other people. At this meeting Branch had a private conversation with Crain. Crain stated that Branch could obtain methamphetamine from Crain, but that Branch could not tell Jones about the sale. Branch had a private conversation with Jones on this same date and Jones informed him that Jones was on his way to Harrison to obtain more amphetamine/methamphetamine. On the following day, in late May of 1984, Branch accompanied Jones to northern Arkansas to meet with Heather McLaughlin (Pfeister's secretary). Branch observed Jones pay Heather McLaughlin approximately $3,000.00 which Jones stated at the time was for the purchase of drugs; Jones had promised Pfeister he would get the money to Pfeister.
After a June 4, 1984 payment to Jones, Branch's attentions were directed to Phillip Goyne and Robert Crain, and Branch made several purchases from Crain. On June 6, 1984, Branch had a discussion with Crain concerning Jones wherein Crain explained that the Longview connection now belonged to Crain and that the Harrison connection belonged to Jones. Crain stated that he could not go to Harrison as his source and that Jones could not go to Longview.
On June 8, 1984 Branch made arrangements for a second purchase from Crain and at that time he had a conversation with Crain concerning the quality of Jones' amphetamine/methamphetamine. At this meeting, Branch was informed by Crain that Crain had observed the yellow amphetamine/methamphetamine that had been in the possession of Jones and that Crain had four ounces of that same substance in his possession at that time.
During this time period he met with Phillip Randall Goyne and Robert Crain and allowed Crain to borrow his car to go to Longview, Texas to obtain methamphetamine. Crain returned his car and told Branch that Crain did not want Jones knowing that Crain was doing drug business with him.
Several days later Branch was called by Judy Delaney and instructed to come to the Jones' residence. When he arrived at Jones' residence Branch met with Jones and Paul Delaney. Jones informed Branch that he had beaten David Briscoe over some money and a gun and that during the beating the gun "went off." Branch had known David Briscoe for approximately seven years and had known through Briscoe that Briscoe was purchasing methamphetamine from Jones through Wally Kendrick. Jones directed Branch to go see Briscoe in the hospital and determine whether Briscoe was going to press charges, and if Briscoe intended to press charges, to threaten him in order to keep him from doing so. Branch was unable to see Briscoe at this point, but he did contact Lonnie and Bobbie Staton as directed by Jones. The following day Branch returned to the University of Arkansas Medical Center and was able to see Briscoe. Briscoe told Branch that he did intend to press charges as soon as he could get out of the hospital and get to a safe place. Branch then met with Jones but told Jones that Briscoe would not press charges.
At a taped meeting on June 26, 1984 Branch informed Jones of Briscoe's condition and that Briscoe wouldn't be testifying. Branch also informed Jones that he had called Lonnie Ray Staton as requested by Jones and that Staton would talk to Alan Koller. The transcript of the recorded meeting indicates that Branch asked if "they" had come back from out-of-town. Branch said this was a reference to the fact that Gary Wiggs and Robert Crain had made a trip to Longview, Texas to obtain amphetamine/methamphetamine.
Branch next talked to Jones in a recorded telephone conversation on June 29, 1984 wherein Jones stated that the beating of David Briscoe was just an "object lesson." Branch met again with Jones the following day, June 30, 1984, and attempted to purchase one-half ounce of methamphetamine for $1100.00; however, he was unable to make the purchase. On July 1, 1984, Branch returned and made a purchase of approximately six grams of methamphetamine.
On July 2 Branch returned, wearing a body recording device. In this conversation Branch and Jones discussed the fact that Branch did, in fact, deal with Jones in 1983 and that the price was $550.00 a quarter." Jones stated that he was trying to keep something rolling and was four or five thousand dollars in the hole and that nobody had come up with his money. Jones informed Branch that he suspected that some persons had been going out to Crain's and obtaining controlled substances and not obtaining the substances from him, specifically mentioning Staton. Jones stated that that would be straightened up shortly and that he had a surprise for him. During this conversation Jones also stated that he was now carrying a .45 caliber pistol and that if he shot anybody again it would be on purpose and that he would empty the gun into him.
During this conversation Branch told Jones that he was grateful for Jones' trust. At this point Jones stated that "I told you a long time ago, that if you work with me and not try to work against me everything will work out." Jones also said that Koller owed him money and that he was going to hurt Koller when he saw him.
About this same time Branch met with Ralph Pfeister in Little Rock, Arkansas at a local motorcycle shop. He discussed supply and quality of methamphetamine and told Pfeister that he wanted to buy direct from him. Pfeister stated that he would be able to sell directly to Branch but that Pfeister would provide a percentage of the sale to Jones because Branch was a Jones customer. Pfeister also told Branch he took vehicles in trade for methamphetamine, specifically mentioning Kevin McDougal. Jones admitted on cross-examination that he fronted drugs to McDougal. Testimony from Branch confirmed that Pfeister had a serious drug habit and was employing drugs for personal use on almost every occasion that Branch saw him.
In a conversation with Jones before Jones left on a motorcycle run to Sturgis, Jones told Branch that he had ten pounds of marijuana which he would sell for $750.00. Jones further stated that he was showing a $2700.00 debt and that he had a lot more money than that out. At this time Branch saw a closed circuit T.V. system at the Jones' residence which allowed Jones to view the exterior of his residence from the area known as his office.
On the weekend following a July 19 purchase Branch accompanied Jones to Harrison and before leaving he assisted Jones in loading approximately ten pounds of marijuana into the trunk of the car to return to Pfeister. While at the Pfeister residence Branch observed Jones and Pfeister use a vacuum pump, which appeared to be a compressor out of a refrigerator, to pull excess moisture out of the amphetamine. He also saw Pfeister and Jones take an ounce of pure amphetamine, cut the ounce in a blender with a substance known as manitol, and produce two ounces of amphetamine. The amphetamine was weighed out into one-ounce packages and one ounce was distributed by Pfeister to Jones. After that, Pfeister and Jones weighed and transferred the marijuana.
Branch subsequently called Pfeister on August 6, 1984 requesting a "part" from Pfeister. Pfeister agreed and a price of $1700.00 was set for the "part." Pfeister said that he would pay Jones a percentage because he (Pfeister) was selling to Branch directly. Branch went to Harrison; he was wearing a body recording device at the time. He met Pfeister at Midway Cycle and purchased one ounce of amphetamine. In the recording on August 6, 1984, Branch and Pfeister made a reference to a stash can which Branch explained was a WD-40 brand spray oil can that had been altered to hide or secrete items inside. On this occasion Branch also saw Kevin McDougal at Midway Cycle and in a private conversation with him, McDougal stated that he was there for the same reason Branch was -- to pick up some drugs.
On August 9, 1984, Branch met with Pfeister, paid $1700.00 and purchased approximately one ounce of amphetamine.
On August 16, 1984, Branch met with Pfeister and paid Pfeister $1700.00 for the purchase of one ounce of amphetamine. It was on this occasion that Branch was surprised to find Jones at the cycle shop in Harrison, Arkansas. Pfeister requested Branch to provide him with $1700.00 so that Pfeister could put it with other money that he had so he could purchase one-half pound of amphetamine. Branch provided Pfeister with the money and agreed to meet him later at the residence.
Pfeister stated to Branch at this time that Jones had made a lot of money while he was gone from the percentage Pfeister was paying him on Jones' Little Rock customers. While en route to the Pfeister residence, Jones and Branch had a private conversation wherein Jones stated that Pfeister had paid him some $1500.00 on Pfeister's sales to Jones' customers. It should be noted that Branch had made only two purchases from Pfeister at this time at $1700.00 per ounce.
In late August, 1984 the undercover operation was moved to Harrison. Branch met with Pfeister at Midway Cycle and discovered that Pfeister had obtained information that federal authorities might be looking into drug operations in that area. Branch's wife, Rose, had been seen talking to task force officers and was questioned by Pfeister concerning the incident.
In September of 1984 Branch made another purchase of amphetamine from Pfeister and during that meeting Pfeister directed Branch to contact Jones to pick up cash, and to contact Wally Kendrick and tell Kendrick to see Pfeister. Branch traveled to Little Rock, met with Kendrick and Jones, and returned to Pfeister's residence the following day. During a recorded conversation on September 19, 1984 Pfeister informed Branch that he was cutting his amphetamine/methamphetamine by fifty percent, and further informed Branch that he had two ounces of cocaine coming and $10,000.00 coming in marijuana. Pfeister told Branch that an individual by the name of "Butch" would soon be bringing in the cocaine. Branch later met "Butch" at Midway Cycle along with Sammy Spurlock. Branch identified "Butch" as Charles Suttinger. On the same day he met Suttinger and Spurlock and learned that they had arrived from South Carolina, he observed a quarter pound of cocaine at the Pfeister residence.
On the following day he had a conversation with Pfeister and Pfeister said that the cocaine would sell for $2,500.00 an ounce uncut or $2,000.00 an ounce if it were cut. It was on this occasion that Branch used cocaine in a situation in which he felt it was necessary to protect his undercover status.
On September 28, 1984, at Midway Cycle Shop, Branch purchased approximately one-quarter ounce of cocaine from Pfeister at a price of $600.00. During the time period that he was in Harrison, Branch had seen Ron and Laura Watson at the motorcycle shop, and in mid-October he learned from Pfeister that Pfeister had obtained some amounts of amphetamine/methamphetamine from Ron Watson.
During late October Branch and the undercover investigation returned to the Little Rock area. Branch reestablished contact with Robert Earl Crain for the purpose of making controlled purchases.
On January 18, 1985 Branch wore a body recording device and met with Crain. Crain was selling to Lonnie Staton and Staton was selling to Alan Koller. In his conversation, Crain related to Branch that Jones told Crain that the next time Lonnie Staton comes out to get dope from you (Crain) tell him (Staton) to come and see me instead. Crain related that he told Jones that the next time Staton came out for dope he would send him Abe's way. In this conversation, Crain also stated that he beat Alan Koller due to Koller's drug debt to Lonnie and Bobbie Staton. Crain stated that he told Koller that "you owe my brother Abe some money and when he finds out how I collected this he's liable to want me to come back with him, and if he does, I will." Crain also informed Branch that Phillip Randal Goyne aka Moe had traded property to Pfeister for drugs. Crain reiterated that Branch should keep his drug business with Crain secret from Jones.
Testimony of Sanders and Burks
Sargent Don Sanders of the Arkansas State Police testified that on each occasion, Branch was searched before and after purchasing drugs or delivering money to Jones, Pfeister and the other subjects of the investigation. Sanders also testified to the foundation, editing, and preparation of transcripts for the Government's exhibits which were referred to and relied upon above. Sanders also testified as to the authenticity of the amounts and substance of amphetamines and methamphetamines which were purchased from Jones and Pfeister at different times.
Testimony of Allen and Chaney
Richard Allen and Lloyd Chaney were originally defendants in this case and the United States agreed that charges against them would be dismissed if they would testify truthfully.
Allen and Chaney began purchasing from Jones in March of 1984. They purchased marijuana from him ten to fifteen times at the price of $250.00 for one-quarter pound. At first they paid cash but Jones later began to sell to them on a consignment basis. They sold to four or five individuals. They also bought amphetamine/methamphetamine from Jones ten to fifteen times, purchasing approximately one to four grams at a time at a price of $80.00 to $100.00 per gram. They did not use the methamphetamine, but sold it and, according to both Allen and Chaney, Jones knew they were selling it.
All of the Allen/Chaney sales took place in the office of Jones' residence on Maple Street, and on several occasions they would have to wait in line in order to see Jones. Allen and Chaney used the telephone to call Jones concerning drugs and utilized the term "hot rod parts" in reference to the purchase of methamphetamine. Allen continued purchasing from Jones until August of 1984. Allen paid approximately $5,000.00 or more to Jones for the purchase of controlled substances.
Both Allen and Chaney testified they had observed a yellow substance purported to be methamphetamine in the possession of Jones.
Alan Koller was originally a defendant in this action and made an agreement with the United States that charges against him would be dismissed if he testified truthfully.
Koller had known Jones since the summer of 1983 when he met Jones as a bartender at the Playpen beer joint. Koller purchased amphetamine/methamphetamine from Jack Branch and sold it to Lonnie and Bobbie Staton. After Branch was injured in an altercation, Jones brought one-quarter ounce of amphetamine/methamphetamine for Koller to sell and pay him back a week later. Koller was to take over Branch's distribution while Branch was in the hospital. Koller used some of the one-quarter ounce and sold the rest to the Statons, and didn't have enough money to pay Jones. Koller then gave Jones a gun to settle the debt. Koller continued to buy amphetamine for the Statons and then introduced Lonnie Staton to Jones. He also bought marijuana from Jones during the time period of the conspiracy.
Jones would only front small amounts to Koller after he got behind on his debt. After Koller began purchasing from Lonnie and Bobbie Staton on a consignment basis, he was contacted by Jones and informed that the Statons had turned over his debt to Jones. On one occasion Jones called Koller's wife, and on a second occasion (in November of 1984) Jones visited Koller's house and informed Koller that "it was almost too late."
During the time period he was purchasing from Branch and reselling to the Statons (spring of 1983), the Statons began to purchase their methamphetamine from an individual by the name of Mickey and stopped purchasing from Koller. Koller related this information to Branch, who was to tell it to Jones. Koller was later told by Jones that Jones had assaulted Mickey with a pistol and that the problem had been solved. After Jones ...