                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0674n.06
                                                                                         FILED
                                           No. 10-3305
                                                                                      Jun 26, 2012
                          UNITED STATES COURT OF APPEALS                      LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )
                                                         )
       Plaintiff-Appellee,                               )      ON APPEAL FROM THE
                                                         )      UNITED STATES DISTRICT
               v.                                        )      COURT FOR THE SOUTHERN
                                                         )      DISTRICT OF OHIO
ANTHONY BALTIMORE,                                       )
                                                         )
       Defendant-Appellant.                              )
                                                         )


BEFORE: BOGGS and GRIFFIN, Circuit Judges; and BARZILAY, Judge.*

       GRIFFIN, Circuit Judge.

       After a lengthy trial, a jury found defendant Anthony Baltimore guilty of conspiracy to

distribute drugs, possession of a firearm in relation to a drug-trafficking offense, conspiracy to

launder money, and engaging in a continuing criminal enterprise. On appeal, he challenges two of

the district court’s pre-trial orders, as well as the sufficiency of the evidence on two of his

convictions. He also challenges his drug-conspiracy conviction on double-jeopardy grounds. We

vacate Baltimore’s conviction for drug conspiracy and affirm in all other respects.

                                                I.

       The government indicted Baltimore in October 2007 on counts of conspiracy to distribute

various drugs, in violation of 21 U.S.C. §§ 841(a)(1) and 846, money laundering, in violation of 18

       *
        The Honorable Judith M. Barzilay, Senior Judge for the United States Court of International
Trade, sitting by designation.
No. 10-3305
United States v. Baltimore


U.S.C. § 1956(a)(1)(B)(i), and possession of a firearm during and in relation to a drug-trafficking

crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i) and (2). The grand jury issued two superseding

indictments, adding counts for conspiracy to launder money, in violation of 18 U.S.C. §

1956(a)(1)(B)(i) and (h), and engaging in a continuing criminal enterprise, in violation of 21 U.S.C.

§ 848(a), (b)(1), and (b)(2)(A).

       Baltimore moved to dismiss the indictment on grounds that the government waited too long

to indict him, but the district court denied his motion. He moved also for a separate trial on the

money-laundering conspiracy, claiming he would suffer prejudice at a trial involving all of the

charges, but the district court denied that motion as well. After a five-week trial, a jury found

Baltimore guilty of all the charges except money laundering, a charge based upon conduct separate

from the conduct at issue in the alleged conspiracy to launder money.

       The evidence offered at trial showed that from 1996 until the time of indictment, Baltimore

conspired with others to buy and sell heroin, marijuana, and cocaine in southern Ohio and northern

Kentucky. During this period, Baltimore purchased drugs from suppliers across the United States

and distributed them to various individuals who would sell them on Baltimore’s behalf.

       The evidence showed further that, during the conspiracy, Baltimore operated various

businesses through which he laundered drug proceeds. Two of these businesses were Prestige Auto

Imports, LLC, a luxury car dealership, and Baltimore Properties, LLC, a property ownership and

management company. Although both companies had purportedly legitimate aims, neither produced

enough income to support itself, so Baltimore used drug proceeds to keep them afloat. In addition,


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No. 10-3305
United States v. Baltimore


Baltimore involved himself in a mortgage-fraud scheme, whereby his grandmother would, with his

assistance, purchase real property using financing obtained from various lending institutions based

on falsely inflated home appraisals. The financing exceeded the property’s purchase price, and

Baltimore split the excess with others engaged in the scheme. He deposited some of his share of the

proceeds into bank accounts associated with his businesses.

       The district court entered judgment on the jury’s verdict and sentenced Baltimore to life in

prison and other punishments. Baltimore timely appealed.

                                                 II.

       Baltimore contends first that the district court erred when it denied his motion under Federal

Rule of Criminal Procedure 14 for a separate trial on the charge of conspiracy to launder money.

According to Baltimore, “the government showed at best only the most tenuous connection between

the extensive mortgage fraud scheme outlined in Count 4 of the Indictment and the other Counts,”

and he suffered prejudice at trial on the drug and gun charges due to the admission of “unrelated[]

and highly inflammatory evidence” regarding the money-laundering conspiracy. The evidence

offered to prove the latter offense, he maintains, called to mind the recent sub-prime mortgage crisis

and would not have been offered and admitted in a trial that involved only the drug and gun charges.

       The government correctly responds that Baltimore has not preserved this issue for appeal

because he failed to renew his severance motion at the close of the evidence. See United States v.

Allen, 160 F.3d 1096, 1106 (6th Cir. 1998) (“[F]ailure to renew a motion to sever at the close of

evidence results in waiver of the motion.”). In his reply brief, Baltimore acknowledges the defect


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United States v. Baltimore


but seeks to recast his challenge as one relating to misjoinder of the counts under Federal Rule of

Criminal Procedure 8, a challenge which need only be made before trial – which Baltimore says he

did – to preserve for appeal. See United States v. Chavis, 296 F.3d 450, 457-58 (6th Cir. 2002).

Baltimore’s attempt to re-characterize his challenge on appeal is not well-taken.

        Regardless of whether Baltimore is correct that his pre-trial motion in the district court

properly raised challenges under both Rule 14 and Rule 8, cf. United States v. Hatcher, 680 F.2d

438, 441 (6th Cir. 1982) (generously interpreting the defendant’s pre-trial motion for severance made

under Rule 14 as one raising a challenge under Rule 8 as well); but see id. at 446 (Kennedy, J.,

dissenting) (“Rule 8(b) issues are not inherently before the trial court in Rule 14 motions.”), on

appeal he raises his Rule 8 challenge only in his reply brief, and we generally decline to reach issues

raised only in reply briefs. See United States v. Crozier, 259 F.3d 503, 517 (6th Cir. 2001); see also

Golden v. Comm’r, 548 F.3d 487, 493 (6th Cir. 2008) (noting that arguments not raised in an

opening brief are forfeited).

        In his opening brief, contending that the district court abused its discretion in not ordering

separate trials, Baltimore focuses entirely on the evidence offered at trial and how he apparently was

prejudiced by it, rather than on the correctness of joining the offenses in the indictment.1 This


        1
        To be sure, Baltimore does set out in his brief some law on Rule 8 and the appropriate
standard of review. But that is insufficient by itself to trigger our review. See United States v. Kelso,
No. 09-6536, 2012 WL 934024, at *6 (6th Cir. Mar. 20, 2012) (holding that the defendant waived
a challenge to the district court’s denial of his motion for a new trial based upon newly discovered
evidence where he “merely set out the standard of review and the elements of the claim,” but “did
not argue or explain how that standard or those elements were satisfied in this case”); Crozier, 259
F.3d at 517 (“We will not allow Burton to argue insufficient evidence as to the ‘possession of a

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No. 10-3305
United States v. Baltimore


argument is clearly one under Rule 14, not Rule 8. Challenges under the two rules are distinct, and

we cannot ignore their differences. See United States v. Lloyd, 10 F.3d 1197, 1214 (6th Cir. 1993)

(“Although the remedy for misjoinder under Rule 8(b) and prejudicial joinder under Rule 14 is the

same – severance and separate trials – the two rules are analytically and procedurally distinct.”). For

example, whether joinder of offenses is proper under Rule 8 is determined by reference solely to the

allegations in the indictment, whereas whether separate trials should be ordered (or should have been

ordered) under Rule 14 for properly joined offenses is determined by what is likely to happen (or

actually does happen) at trial. Chavis, 296 F.3d at 456-57. That is why challenges under Rule 14

must be renewed at the close of the evidence (to see if the joinder prejudiced the defendant at trial),

but challenges under Rule 8 need not be renewed. Id. at 457. Moreover, a district court has “no

discretion on the question of severance” when offenses are misjoined, id. at 456, but whether to order

separate trials (or a new trial) for properly joined offenses is entrusted to the court’s discretion,

United States v. Atchley, 474 F.3d 840, 852 (6th Cir. 2007). See also Lloyd, 10 F.3d at 1214-15.

Because Baltimore raises the indictment’s alleged Rule 8 defect only in his reply brief, the challenge

is forfeited.2


firearm’ charge in his reply brief, simply because he cited generally to 18 U.S.C. § 922 in his initial
brief.”); see also McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997) (“[I]ssues adverted to
in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed
waived.” (citation and internal quotation marks omitted)).
        2
         But even if Baltimore had properly raised his Rule 8 challenge on appeal, we would reject
it. Rule 8(a) permits a defendant to be charged in a single indictment with multiple offenses if the
offenses “are of the same or similar character, or are based on the same act or transaction, or are
connected with or constitute parts of a common scheme or plan.” Fed. R. Crim. P. 8(a). As stated

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No. 10-3305
United States v. Baltimore


                                                  III.

        Baltimore next contends that the district court erred when it denied his motion to dismiss the

indictment on account of delay in indicting him.

        “[T]he applicable statute of limitations . . . is . . . the primary guarantee against bringing

overly stale criminal charges.” United States v. Marion, 404 U.S. 307, 322 (1971) (quoting United

States v. Ewell, 383 U.S. 116, 122 (1966)). It is not, however, the only guarantee. The Due Process

Clause of the Fifth Amendment, too, “has a limited role to play in protecting against oppressive

delay.” United States v. Lovasco, 431 U.S. 783, 789 (1977). Where pre-indictment delay causes

substantial prejudice to a defendant’s right to a fair trial, and the delay was intentionally created by

the government to gain a tactical advantage, the Due Process Clause requires dismissal of the



above, “[w]hether joinder [is] proper under Rule 8(a) is determined by the allegations on the face
of the indictment.” Chavis, 296 F.3d at 456-57. Here, the allegations demonstrate that the offense
of conspiring to launder money was properly joined with the drug and gun offenses because all the
offenses were alleged in the indictment to be connected with, or part of, a common scheme or plan.
Count one charged a conspiracy to distribute drugs. One of the many alleged objects of that
conspiracy was to launder drug proceeds by conducting financial transactions, operating business
enterprises, buying property, and filing false tax returns to conceal and disguise the nature of the drug
proceeds. Count four essentially charged this conspiratorial object as a separate conspiracy. One
object of this conspiracy was to deposit cash derived from drug dealing into bank accounts of
ostensibly legitimate businesses in an attempt to make the funds appear legitimate, and two of the
overt acts alleged in count four involved precisely that. In sum, the indictment properly joined count
four with counts one through three because all the counts constituted various parts of a common
scheme or plan to sell drugs and launder the proceeds. In his reply brief, Baltimore ignores the
indictment’s allegations and focuses instead on the evidence offered at trial, despite the irrelevance
of considering trial evidence in a challenge under Rule 8. See id. at 457 (“Because the propriety of
a Rule 8 joinder is determined solely by the initial allegations of the indictment, there is no need to
assess what actually happened in the trial.” (quoting United States v. Terry, 911 F.2d 272, 277 (9th
Cir. 1990))).

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No. 10-3305
United States v. Baltimore


indictment. Id. at 795 & n.17; Marion, 404 U.S. at 324; see also United States v. Gouveia, 467 U.S.

180, 192 (1984). Because a defendant must meet both parts of the test to warrant dismissal of the

indictment, we need only address one part if the defendant’s showing on that part is not sufficient.

See United States v. Greene, 737 F.2d 572, 574-75 (6th Cir. 1984). A defendant bears a heavy

burden on such claims. See United States v. Rogers, 118 F.3d 466, 477 n.10 (6th Cir. 1997) (noting

that “[t]he standard for pre-indictment delay is nearly insurmountable”).

       We review the district court’s factual findings regarding the government’s intent and the

resulting prejudice to the defendant for clear error. The ultimate decision whether to dismiss the

indictment is reviewed for an abuse of discretion. United States v. Scott, 579 F.2d 1013, 1014 (6th

Cir. 1978); see also United States v. McDougle, 82 F. App’x 153, 158 (6th Cir. 2003).

       Here, there was indeed a lengthy delay by the government in charging Baltimore. As the

district court noted, much of the conduct alleged in the indictment occurred more than five years

before the initial indictment was returned, and other conduct occurred almost five years before

indictment.3 But the relevant question is not whether there was delay, but rather whether the

government intentionally delayed for the purpose of gaining a tactical advantage and whether

Baltimore suffered substantial prejudice as a result.




       3
        Each count in the indictment is subject to a five-year statute of limitations. See 18 U.S.C.
§ 3282. For conspiracy offenses, the period begins on “the date of the last overt act in furtherance
of the conspiracy alleged in the indictment.” United States v. Smith, 197 F.3d 225, 228 (6th Cir.
1999). Baltimore does not contend that any of the counts are time-barred.

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No. 10-3305
United States v. Baltimore


       The district court concluded that the delay in this case was caused by the continued

investigation of Baltimore, not in order to gain an advantage. According to the government, the

Drug Enforcement Agency continued to investigate Baltimore up to the time of indictment. Grand

jury proceedings continued until that time as well, as witnesses were located and their cooperation

secured. The district court was permitted to rely upon the government’s representations, see

Lovasco, 431 U.S. at 796; Rogers, 118 F.3d at 476-77, and we cannot say that its finding is clearly

erroneous. Delay caused by continued investigation cannot give rise to a deprivation of due process.

Lovasco, 431 U.S. at 796.

       Resisting this result, Baltimore asks us to conclude that the government’s offered reason for

its delay – continued investigation of the offenses – is a pretext for its deliberate decision to delay

indicting him until his grandmother, whose testimony Baltimore contends was material to his

defense to conspiracy to launder money, had died.4 He points to a complaint the government filed

against him in a related civil forfeiture action forty-seven months before he was indicted. That

complaint was supported by a case agent’s affidavit of probable cause that contained allegations

Baltimore contends were materially similar to those contained in the indictment. But even assuming

a similarity between the statements in the affidavit and the allegations in the indictment, the

government was not constitutionally required to indict Baltimore once it had what it believed was


       4
        Baltimore states that his grandmother would have testified that she purchased real estate on
her own volition and was not “used” by Baltimore for the purpose of laundering money. It is unclear
how this testimony would have supported a defense on the charge, especially because the
government’s theory on this charge involved primarily Baltimore’s bank deposits of kickbacks and
drug proceeds, not the home purchases themselves.

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No. 10-3305
United States v. Baltimore


enough evidence to succeed in the civil action. The Supreme Court in Lovasco expressly rejected

the claim that the government must indict once it “has assembled sufficient evidence to prove guilt

beyond a reasonable doubt,” 431 U.S. at 792, a standard of proof well more demanding than the

preponderance-of-the-evidence standard the government must meet in forfeiture proceedings, see

18 U.S.C. § 983(c)(1). If the government is not constitutionally required to indict once it has

sufficient evidence to prove its case beyond a reasonable doubt, it certainly is not required to do so

once it has evidence to prove its case by a preponderance of the evidence.

       Baltimore has offered nothing to rebut the government’s assertion – and the district court’s

finding – that the government continued to investigate and build its case until indictment. Because

he cannot show that the government delayed indicting him to gain a tactical advantage, we reject his

due process claim.

                                                 IV.

       Finally, Baltimore contends that insufficient evidence supports his convictions for conspiracy

to launder money and engaging in a continuing criminal enterprise. When reviewing the sufficiency

of the evidence in support of a jury verdict, we view the evidence in the light most favorable to the

government and determine whether any rational trier of fact could have found the elements of the

crime beyond a reasonable doubt. United States v. Abboud, 438 F.3d 554, 589 (6th Cir. 2006). We

do not “reweigh the evidence, reevaluate the credibility of witnesses, or substitute our judgment for

that of the jury.” United States v. Deitz, 577 F.3d 672, 677 (6th Cir. 2009) (citation and internal

quotation marks omitted).


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No. 10-3305
United States v. Baltimore


                                                  A.

         Baltimore first challenges his conviction for conspiracy to launder money. To convict on this

charge, the government had to prove that Baltimore “agreed with another person to violate the

substantive provisions of the money-laundering statute during the period alleged in the indictment.”

See United States v. Hynes, 467 F.3d 951, 964 (6th Cir. 2006). The elements of concealment money

laundering are: (1) use of funds that are proceeds of unlawful activity; (2) knowledge that the funds

are proceeds of unlawful activity; and (3) conducting or attempting to conduct a financial transaction,

knowing that the transaction is designed in whole or in part to disguise the nature, location, source,

ownership, or control of the proceeds. United States v. Prince, 214 F.3d 740, 747 (6th Cir. 2000);

18 U.S.C. § 1956(a)(1)(B)(i); see also United States v. Warshak, 631 F.3d 266, 319-20 (6th Cir.

2010).

         Baltimore does not challenge the agreement aspect of the conspiracy conviction. Rather, he

contends that there was insufficient evidence on the first and third elements of the money-laundering

offense he allegedly conspired to commit. As he sees it, “the government’s proof on money

laundering failed since its own proof established that Baltimore put up none of his own money to

acquire the properties outlined in Count 4, thus the government failed to establish that Baltimore

used any funds that are the proceeds of unlawful activity.” Furthermore, Baltimore maintains, the

evidence also established that the purchases were made in Baltimore’s grandmother’s name not to

disguise the nature of the illegal proceeds, but because she had the highest credit score and could

secure the most financing. Baltimore is correct regarding a lack of evidence that he used any of his


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No. 10-3305
United States v. Baltimore


own money to purchase real estate. He is also correct regarding the reason the property was

purchased in his grandmother’s name. But Baltimore’s argument is somewhat of a red herring, for

using drug proceeds to purchase real property was but one aspect of the multi-faceted conspiracy

alleged in the indictment. Baltimore has ignored on appeal the other aspects of the conspiracy that

are supported by sufficient evidence.

       Specifically, one object of the conspiracy alleged in the indictment was to deposit cash

derived from drug trafficking and wire fraud into the bank accounts of Baltimore’s ostensibly

legitimate businesses in an attempt to make the proceeds appear legitimate. Several of the overt acts

involved large and frequent deposits of cash into bank accounts Baltimore maintained for his

businesses. He opened one in the name of Baltimore Properties, LLC, and another in the name of

Prestige Auto Imports, LLC. Neither business generated enough income to cover operating costs,

however. When funds got low and bills needed to be paid, Baltimore’s spouse and business partner,

Olivia Baltimore, would ask Baltimore for money to cover company or personal expenses, and he

would give her cash for deposit into the company accounts. She was specifically told never to

deposit more than $10,000 at a time, presumably to avoid mandatory IRS reporting requirements

implemented to help law enforcement discover money laundering. Olivia testified that the cash for

deposit came from the wire-fraud mortgage scheme; she also suspected that some of it came from

drug trafficking. Baltimore himself testified that the money received on the home purchases was

used to help open the car dealership. In addition, one of Baltimore’s cocaine distributors, Lucien




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No. 10-3305
United States v. Baltimore


Kidd, testified that Baltimore told him the purpose of the businesses was to “be legit,” meaning they

were created “to wash money through [them].”

       Based upon this evidence, the jury could have reasonably found that the cash deposited in

the company accounts constituted proceeds from illegal activity involving wire fraud and drug

trafficking and was intended at least in part to disguise the source of the proceeds. The evidence was

sufficient to support Baltimore’s conviction for conspiracy to launder money.

                                                 B.

       Baltimore next challenges his conviction for engaging in a continuing criminal enterprise.

The elements of the offense are: (1) the defendant committed a felony violation of federal narcotics

laws; (2) the violation was part of a continuing series of three or more drug offenses committed by

the defendant; (3) the defendant committed the series of offenses in concert with five or more

persons; (4) the defendant acted as an organizer, supervisor, or manager with regard to these five or

more persons; and (5) the defendant obtained substantial income or resources from this series of

violations. United States v. Burns, 298 F.3d 523, 535 (6th Cir. 2002); 21 U.S.C. 848(c).

       Baltimore challenges only the fourth element of the offense. He contends that “the vast

majority of the government’s evidence showed [only that he] engaged in individual drug sales to

other individuals” who did not operate at his direction or control. He concedes that he organized,

supervised, or managed two individuals – Tremine Norman and Fred Conner – both of whom he

recruited to provide personal protection or to punish other drug dealers. Therefore, for the




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United States v. Baltimore


conviction to stand, the evidence must demonstrate that Baltimore organized, supervised, or

managed at least three others.

       We have stated before that the § 848(c) relationship requirement is flexible. “The

defendant’s relationship with the five other individuals need not exist at the same moment in time.

There can exist separate, individual relations with the five persons. And, the five individuals need

not act at the same time.” United States v. Sinito, 723 F.2d 1250, 1261 (6th Cir. 1983) (internal

citation omitted). But simply buying drugs from an “organizer” does not meet the relationship

requirement. United States v. English, 925 F.2d 154, 157 (6th Cir. 1991); see also United States v.

Jones, 801 F.2d 304, 308 (8th Cir. 1986) (noting that merely “fronting” drugs, or selling them on

credit, is not sufficient to establish organizer, supervisor, or manager status). A buyer-seller

relationship must be coupled with some type of formal or informal authority of the seller over the

buyer to establish the relationship necessary under the statute. English, 925 F.2d at 157. Evidence

of authority can include instructing buyers regarding the language they may use to refer to drugs on

the phone; setting drug resale prices; dictating the manner of sale to others – whether cash or credit

– and to whom drugs may be sold; monitoring when buyers get paid by downstream purchasers; and

dictating the quality and permissible dilution ratio of the drugs sold. Id. Moreover, apart from a

buyer-seller relationship, a defendant organizes, supervises, or manages another if he is able to store

drugs in the person’s house or recruits the person to transport drugs on his behalf. See United States

v. Chalkias, 971 F.2d 1206, 1214 (6th Cir. 1992) (per curiam); see also United States v. Ward, 37

F.3d 243, 247 (6th Cir. 1994).


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No. 10-3305
United States v. Baltimore


       The evidence shows that Baltimore organized, supervised, or managed at least three other

persons in addition to Tremine Norman and Fred Conner. First, there is Anthony Johnson. At

Baltimore’s request, Johnson introduced Baltimore to the cocaine market in Lexington, Kentucky,

and Baltimore began selling cocaine there with Johnson’s help. Roughly once per week for two

years the two would drive to Lexington to sell three to five kilograms of cocaine to customers that

Johnson had developed for Baltimore. Johnson also introduced Baltimore to a friend who allowed

Baltimore to store cocaine in her home regularly. Johnson also helped Baltimore transport cocaine

to Covington, Kentucky. On one occasion, at Baltimore’s instruction, Johnson distributed some of

Baltimore’s cocaine to another customer, Antonio Collins. Another time, Baltimore asked Johnson

to cook cocaine into crack cocaine for another customer to appease the customer.

       Next, there is Carlos Young. Young sold cocaine he bought from Baltimore on credit. But

in order to be able to purchase cocaine from Baltimore, Young was required to travel to Lexington

to pick up drugs from Baltimore’s stash house and transport them to Cincinnati. Baltimore

organized the scheme for transporting the drugs. The two would drive to Lexington in different cars

to pick up Baltimore’s drugs from his stash house. On the drive back, Baltimore would follow

Young, who would carry the drugs. That way, if law enforcement attempted to pull over either car,

Baltimore would distract them with a high-speed chase while Young safely transported the drugs

back to Cincinnati. Baltimore supplied Young with a car from his lot for the trips.

       Lucien Kidd also sold cocaine for Baltimore. Baltimore fronted Kidd drugs, and Kidd would

sell them and repay Baltimore. In the beginning of their relationship, Baltimore told Kidd to find


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No. 10-3305
United States v. Baltimore


an address to which Baltimore could ship cocaine from California. Kidd offered his aunt’s address

in Cincinnati, and Baltimore mailed the cocaine to that address. Baltimore organized the cocaine

supply. In 2001, Baltimore began buying cocaine from a man named Armando Soto. Kidd was

responsible for picking up the drugs each month from Soto. Kidd sometimes helped transport the

cocaine to Baltimore’s distributors in Lexington, even though he never sold drugs there himself.

During the relationship, Kidd would follow Baltimore’s instructions with respect to sales and

distributions of cocaine. Once, Baltimore instructed Kidd to meet with Baltimore’s lawyer at a hotel

and give him $50,000 on Baltimore’s behalf. Another time, Baltimore instructed Kidd to travel to

the Kentucky Derby in Louisville to meet Baltimore and his attorney and drop off $10,000. After

dropping off the money, Kidd drove straight back to Cincinnati.

       Viewing the evidence in the light most favorable to the government, a jury could conclude

that Baltimore was an organizer, supervisor, or manager with respect to five individuals he acted in

concert with to sell drugs: Tremine Norman, Fred Conner, Anthony Johnson, Carlos Young, and

Lucien Kidd.5 The evidence was sufficient to support Baltimore’s conviction for engaging in a

continuing criminal enterprise.

                                                V.

       The government concedes that the drug conspiracy charged in count one is a lesser included

offense of the continuing criminal enterprise charged in count five. See Rutledge v. United States,


       5
        Having identified five individuals with whom Baltimore had the necessary relationship for
purposes of § 848(c), we need not address whether his relationships with the numerous other
individuals identified in the government’s brief satisfy the statute.

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No. 10-3305
United States v. Baltimore


517 U.S. 292, 307 (1996). Therefore, because we affirm Baltimore’s conviction for engaging in a

continuing criminal enterprise, we must vacate his drug-conspiracy conviction to avoid violating his

rights under the Fifth Amendment’s Double Jeopardy Clause. See United States v. Avery, 128 F.3d

966, 972 (6th Cir. 1997). Vacating Baltimore’s drug-conspiracy conviction does not affect the

mandatory life sentence imposed on his continuing-criminal-enterprise conviction. Accordingly, we

need not remand for resentencing.

                                                VI.

        For these reasons, we vacate Baltimore’s drug-conspiracy conviction (count one) and affirm

in all other respects.




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