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UNITED STATES OF AMERICA, Plaintiff-Appellee/Cross-Appellant, v. GREGORY A. DRIVER, Defendant-Appellant/Cross-Appellee. |
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Appeal from the United States District Court
for the Northern District of Ohio at Toledo.
No. 03-00739—David A. Katz, District Judge.
Argued: April 24, 2008
Decided and Filed: August 1, 2008
Before: DAUGHTREY, GILMAN, and ROGERS, Circuit Judges.
ROGERS, Circuit Judge. This case is part of a consolidated appeal involving thirteen defendants who were members of the Outlaw Motorcycle Club (“OMC”), an international motorcycle club with chapters across the country and around the world. In 1997, the Federal Bureau of Investigation and state law enforcement agencies began an investigation into the Green region of the OMC, which consists of chapters in Dayton, Ohio; Fort Wayne, Indiana; Louisville, Kentucky; Indianapolis, Indiana; and Oklahoma City, Oklahoma. As a result of the investigation, a grand jury in the Northern District of Ohio returned a 40-count indictment in 2003 charging the defendants with various federal offenses, including Racketeer Influenced and Corrupt Organizations Act (“RICO”), drug trafficking, and firearms offenses. The defendants were tried together before an anonymous jury.
Defendant Gregory A. Driver was a member of the Green region of the OMC. Following trial, Driver was convicted of one count of substantive RICO, in violation of 18 U.S.C. § 1962(c), one count of RICO conspiracy, in violation of 18 U.S.C. § 1962(d), and one count of conspiracy to possess with intent to distribute narcotics, in violation of 21 U.S.C. § 846. On October 18, 2004, Driver was sentenced to 168 months’ imprisonment on all counts, to run concurrently.
Driver raises four issues on appeal: (1) that the district court erred in failing to sever his trial; (2) that his confrontation rights were violated by the admission at trial of out-of-court statements made by one of his co-defendants; (3) that the evidence at trial was not sufficient to convict him on all counts; and (4) that the district court committed various sentencing errors. In addition, the government argues correctly on cross-appeal that the district court erred in failing to consider the imposition of a firearm enhancement with respect to Driver’s sentence. We agree that the evidence was not sufficient to convict Driver of the substantive RICO and RICO conspiracy offenses, but Driver’s other contentions lack merit. For the reasons set forth below, we reverse the two RICO convictions, affirm Driver’s drug conspiracy conviction, vacate Driver’s sentence, and remand the case to the district court for resentencing consistent with this opinion.
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UNITED STATES OF AMERICA, Plaintiff-Appellee/Cross-Appellant, v. JASON GREGORY FOWLER, Defendant-Appellant/Cross-Appellee. |
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Appeal from the United States District Court
for the Northern District of Ohio at Toledo.
No. 03-00739—David A. Katz, District Judge.
Argued: April 24, 2008
Decided and Filed: August 1, 2008
Before: DAUGHTREY, GILMAN, and ROGERS, Circuit Judges.
ROGERS, Circuit Judge. This case is part of a consolidated appeal involving thirteen defendants who were members of the Outlaw Motorcycle Club (“OMC”), an international motorcycle club with chapters across the country and around the world. In 1997, the Federal Bureau of Investigation and state law enforcement agencies began an investigation into the Green region of the OMC, which consists of chapters in Dayton, Ohio; Fort Wayne, Indiana; Louisville, Kentucky; Indianapolis, Indiana; and Oklahoma City, Oklahoma. As a result of the investigation, a grand jury in the Northern District of Ohio returned a 40-count indictment in 2003 charging the defendants with various offenses, including Racketeer Influenced and Corrupt Organizations Act (“RICO”), drug trafficking, and firearms offenses. The defendants were tried before an anonymous jury.
Defendant Jason Gregory Fowler, a member of the Louisville Chapter of the OMC, was convicted on four counts: (1) a substantive RICO offense, in violation of 18 U.S.C. §§ 1962(c), 1963(a); (2) RICO conspiracy, in violation of 18 U.S.C. § 1962(d); (3) conspiracy to distribute a controlled substance, in violation of 21 U.S.C. § 846; and (4) conspiracy to use or carry a firearm during the commission of a drug trafficking crime, in violation of 18 U.S.C. § 924(o). The district court thereafter sentenced Fowler to a total of 396 months in prison.
On appeal, Fowler argues that: (1) the evidence obtained from the search of his home was acquired in violation of his Fourth Amendment rights and therefore should have been suppressed; (2) the district court erred by admitting statements that had been elicited in violation of his Fifth and Sixth Amendment rights; (3) he was entitled to a directed verdict on the RICO and RICO conspiracy charges; (4) the district court made reversible evidentiary errors with respect to Rule 404(b) evidence; (5) the district court erroneously failed to instruct the jury as to lesser-included offenses; (6) the district court erroneously calculated the Guidelines range; and (7) the district court erroneously imposed a consecutive sentence of 10 years under 18 U.S.C. § 924(c). The Government argues in its cross-appeal that Fowler’s sentence should be vacated and remanded because the district court misapplied the Sentencing Guidelines by departing from the recommended life sentence without adequate justification on the record.
Fowler’s arguments with respect to his convictions have no merit, but he correctly argues that the district court erroneously sentenced him to a consecutive 10-year sentence under § 924(c). Because of the influence that this error had on Fowler’s overall sentence, his sentence must be vacated in its entirety. Therefore, his convictions are affirmed, and his sentence is vacated.
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UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ALLEN CHESTER LAWSON, Defendant-Appellant. |
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Appeal from the United States District Court
for the Northern District of Ohio at Toledo.
No. 03-00739—David A. Katz, District Judge.
Argued: April 24, 2008
Decided and Filed: August 1, 2008
Before: DAUGHTREY, GILMAN, and ROGERS, Circuit Judges.
ROGERS, Circuit Judge. This case is part of a consolidated appeal involving thirteen defendants who were members of the Outlaw Motorcycle Club (“OMC”), an international motorcycle club with chapters across the country and around the world. In 1997, the Federal Bureau of Investigation and state law enforcement agencies began an investigation into the Green region of the OMC, which consists of chapters in Dayton, Ohio; Fort Wayne, Indiana; Louisville, Kentucky; Indianapolis, Indiana; and Oklahoma City, Oklahoma. As a result of the investigation, a grand jury in the Northern District of Ohio returned a 40-count indictment in 2003 charging the defendants with various offenses, including Racketeer Influenced and Corrupt Organizations Act (“RICO”), drug trafficking, and firearms offenses. The defendants were tried before an anonymous jury.
Defendant Allen C. Lawson, a member of the OMC chapter in Dayton, Ohio, was charged with four offenses: (1) substantive RICO in violation of 18 U.S.C. § 1962(c); (2) RICO conspiracy in violation of 18 U.S.C. § 1962(d); (3) conspiracy to distribute controlled substances in violation of 21 U.S.C. § 846; and (4) distribution and possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1). In support of the RICO charge, the indictment alleged four RICO predicate acts against Lawson: (1) conspiracy to distribute controlled substances; (2) distribution of marijuana; (3) distribution of valium; and (4) the 2001 murder of Eric Coulter at a Dayton, Ohio, strip club named Spanky’s Dollhouse.
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For the foregoing reasons, Lawson’s convictions and sentence are AFFIRMED.
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UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JAMES L. WHEELER, Defendant-Appellant. |
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Appeal from the United States District Court
for the Northern District of Ohio at Toledo.
No. 03-00739—David A. Katz, District Judge.
Argued: April 24, 2008
Decided and Filed: August 1, 2008
Before: DAUGHTREY, GILMAN, and ROGERS, Circuit Judges.
ROGERS, Circuit Judge. This case is part of a consolidated appeal involving thirteen defendants who were members of the Outlaw Motorcycle Club (“OMC”), an international motorcycle club with chapters across the country and around the world. In 1997, the Federal Bureau of Investigation and state law enforcement agencies began an investigation into the Green region of the OMC, which consists of chapters in Dayton, Ohio; Fort Wayne, Indiana; Louisville, Kentucky; Indianapolis, Indiana; and Oklahoma City, Oklahoma. As a result of the investigation, a grand jury in the Northern District of Ohio returned a 40-count indictment in 2003 charging the defendants with various federal offenses, including Racketeer Influenced and Corrupt Organizations Act (“RICO”), drug trafficking, and firearms offenses. The defendants were tried together before an anonymous jury.
Defendant James “Frank” Wheeler was formerly the head of the Indianapolis chapter and Green region of the OMC. Wheeler later served as president of the entire international OMC organization. Following trial, Wheeler was convicted on one count of substantive RICO, in violation of 18 U.S.C. § 1962(c), one count of RICO conspiracy, in violation of 18 U.S.C. § 1962(d), and one count of conspiracy to possess with intent to distribute narcotics, in violation of 21 U.S.C. § 846. On January 5, 2005, Wheeler was sentenced to life imprisonment on the substantive RICO and drug conspiracy counts, to run concurrently, and to 20 years’ imprisonment on the RICO conspiracy count, to run consecutively.
Wheeler raises two issues on appeal: (1) that his indictment for the substantive RICO, RICO conspiracy, and drug conspiracy offenses violated the Double Jeopardy Clause because of an earlier prosecution; and (2) that his sentence was improperly imposed for various reasons.1 Because Wheeler’s indictment for the substantive RICO and RICO conspiracy offenses violated the Double Jeopardy Clause, we reverse those convictions and sentences. We affirm, however, Wheeler’s conviction and sentence for the drug conspiracy.