                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-7-2005

USA v. Waters
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3636




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"USA v. Waters" (2005). 2005 Decisions. Paper 893.
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                                                NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT

                     ___________

                     No. 03-3636
                     ___________


           UNITED STATES OF AMERICA

                           v.


         KEITH WATERS, a/k/a Keith Moore,
                a/k/a Karate Keith,
                  a/k/a Mr. Keith


                                Keith Waters,
                                Appellant

                     ___________


     On Appeal from the United States District Court
         for the Eastern District of Pennsylvania
            (D.C. Criminal No. 01-cr-00457-2)
      District Judge: The Honorable James T. Giles

                     ___________

       Submitted Under Third Circuit LAR 34.1(a)
                    June 27, 2005


BEFORE: NYGAARD, SMITH, and FISHER, Circuit Judges.
                                   (Filed July 7, 2005)

                                      ___________

                               OPINION OF THE COURT
                                    ___________


NYGAARD, Circuit Judge.

      Appellant Keith Waters was found guilty by a jury of conspiracy to distribute more

than 50 grams of cocaine base crack within 1000 feet of a school zone, in violation of 21

U.S.C. § 846(b)(1), § 841(a)(1)(A), and § 860. He was sentenced to life imprisonment.

We will affirm his conviction, but vacate his sentence and remand for resentencing.

      Because we write only for the parties, we discuss only those facts relevant to the

issues on appeal. This case centers around a large scale drug organization in Philadelphia

known as “Do or Die” or “D.O.D.” run primarily by Daniel Coach. Waters played a

variety of roles in this organization including teaching Coach how to run a drug

trafficking organization, selling “cut” to Coach, helping Coach run a drug location when

he was incarcerated, and selling Coach cocaine and crack.

                                            I.

      At trial, and over Waters’ objection, the Government introduced audio tapes of

recorded telephone calls made by Waters after his arrest while he was housed at the

Federal Detention Center in Philadelphia.




                                            2
       Waters objects to the conversations between himself and individuals who were not

members of the conspiracy. Waters objects because the statements were made while he

was incarcerated and not involved with any conspiracy and because the individuals to

whom he was speaking were not members of the conspiracy. The statements, however,

are Waters’ own admissions and are admissible under Federal Evidence Rule

801(d)(2)(A) regardless of who was on the other end of the line or when they were made.

Thus, the District Court did not abuse its discretion in admitting the tapes.

                                             II.

       The Government also offered testimony by Clifton Junius, a witness who worked

for the D.O.D./Coach organization. Waters objects to the portion of Junius’ testimony

relating to transactions between Waters and Junius that took place in the summer of 2000.

Prior to his trial on the charges relating to the D.O.D./Coach conspiracy, Waters pleaded

guilty to an indictment relating to these transactions. Waters claims that his involvement

with Junius was completely distinct from the D.O.D./Coach organization, and therefore

testimony about those transactions was irrelevant and intended only to prejudice the jury

against him. Furthermore, Waters claims that because he was already convicted of

charges relating to the 2000 transactions, using that evidence against him in this case

constituted double jeopardy.

       At trial, Junius testified that he worked for the Coach organization almost from its

inception and played numerous roles in the organization. He testified that he interacted



                                              3
with Waters throughout the organization’s existence, and that beginning in 1998 he

worked directly for Waters in Coach’s absence. When Coach returned in 1999 he

continued to work with both Coach and Waters. Waters and Junius were both arrested on

July 20, 2000 after Junius had made several sales to a confidential informant. The drugs

had been obtained from Waters. Waters pleaded guilty to three counts of distribution of

crack within 1,000 feet of a school and was sentenced to 151 months’ imprisonment for

sales made in the summer of 2000.

       During Junius’ testimony at the trial for the present case, Waters objected when

Junius began to testify regarding the 2000 sales, claiming that those sales were part of a

separate conspiracy. The Government argued that the sales were part of the charged

conspiracy. In voir dire, outside the presence of the jury, Junius testified that he obtained

the crack in 2000 from Waters who was continuing to “cook” for Coach. Based on that

testimony, the District Court allowed the questioning and defense counsel did not renew

his objection.

       Given the voir dire conducted by the District Court, we cannot say that the Court

abused its discretion in determining that the evidence was relevant to the charged

conspiracy. Waters appears to argue on appeal that this evidence was improperly

admitted character evidence, but the record demonstrates that it was not admitted for the

purpose of establishing Waters’ character, but as direct evidence of his guilt.




                                              4
       Waters is also incorrect in his assertion that the admission of Junius’ testimony

violated the Double Jeopardy Clause. Waters was not previously convicted of a

conspiracy count with respect to the 2000 transactions, only the substantive crime of

distribution. Because a substantive crime and a conspiracy to commit that crime are not

the “same offense” for double jeopardy purposes, the District Court did not err in

admitting the testimony. See United States v. Felix, 503 U.S. 378, 389 (1992).

                                             III.

       Waters also claims that the evidence admitted at trial is insufficient to support his

conviction. “A claim for insufficiency of the evidence places a very heavy burden on an

appellant.” United States v. Gonzalez, 918 F.2d 1129, 1132 (3d Cir. 1990).

       Waters argues that because the Government’s case relied almost exclusively upon

cooperating witness testimony, it was insufficient. We have previously rejected this

rationale. Untied States v. Perez, 280 F.3d 318, 344 (3d Cir. 2002). Thus, Waters’ claim

that there is insufficient evidence to support his conviction is without merit.

                                             IV.

       Finally, Waters objects to the sentence imposed by the District Court. Since the

filing of this appeal, the United States Supreme Court has decided the case of United

States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005). Having determined that the

sentencing issues Waters raises are best determined by the District Court in the first

instance, we vacate the sentence and remand for resentencing in accordance with Booker.
