NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0674n.06 No. 10-3305 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. ANTHO NY B AL TI MORE, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) O N A P P E A L F R O M T H E UNI TED STATES DI STRI CT COURT FOR THE SOUTHERN DI STRI CT OF OH I O

BEF ORE: BOG GS and GRI FF I N, Circuit J udg es; and B ARZ I L AY, Judge. * GRI FF I N, Circuit J udg e. After a leng thy trial, a jury found defe ndant Anthony Ba ltimore g uilty of con spiracy to distribute drug s, possession of a firea rm in rela tion to a drug -traf ficking off

en s e, conspirac y to launder money , and eng ag ing in a continuing criminal enter prise. On appea l, he challeng es two of the district court’s pre- trial order s, as well as the sufficie ncy o f the evidenc e on two of his convictions. He a lso challeng es his drug -conspira cy conviction on double-je opardy g rounds. We

vacate B altimore’s c onviction for drug conspirac y

and af firm in all other re spects. I

. The gove rnment i ndicted Baltimore in October 2007 on counts of conspiracy t o d i s t ri bute various drug s, in violation of 21 U.S.C. §§ 841(a) (1) and 846, money launder ing, in violation of 18

The Honora

ble J udith M. Ba

rzilay , Senior J udg e for the United States Court of I nterna tional * Trade , sitti ng by

desig nation.No. 10-3305

United States v. Baltimore

U.S.C. § 1956(a) (1)( B) (i), and possession of a firea rm during and i n rela tion to a drug- traff icking crime, in violation of 18 U.S.C. § 924(c)( 1)(A) (i) and ( 2). The g rand jury issued two superse ding indictments, adding counts for conspirac y to l au n d er money , in violation of 18 U.S.C. § 1956(a) (1)( B) (i) and (h), and eng ag ing in a continuing criminal enter prise, in violation of 21 U.S.C. § 848(a) , (b)( 1), and ( b)(2) (A). Ba ltimore moved to dismiss the indictment on g rounds that the g overnme nt waited too long
to indict him, but the district court denied his motion. He moved also for a separ ate trial on the
money -launde ring conspirac y , claiming he would suffe r prejudice at a trial i n volving all of the char g es, bu t t h e d istrict court denied that motion as well. After a five-w eek trial, a jury found Ba ltimore g uilty of all the char g es except money launder ing, a char g e based upon conduct separ ate from the c onduct at issue in the alleg ed conspira cy to launder mone y . The evidenc e offe red at trial showed that from 1996 until the time of indictment, Ba ltimore conspired with others to buy and sell heroin, marijuana , and coca ine in southern Ohio and northern Kentucky . During this period, Ba ltimore purcha sed drug s from suppliers ac ross the United States and distributed them to various individuals who would sell them on Ba ltimore’s beha lf. The evidenc e showed further that, during the conspirac y , Ba l t i m o re opera ted various businesses throug h which he launder ed drug proce eds. Two of these businesses wer e Prestige Auto I mports, L L C, a lux ury car d ea l er s h i p , and Ba ltimore Properties, L L C, a proper ty owner ship and
manag ement company . Although both companies had purportedly leg itimate aim s , n e it h e r p r oduced
enoug h income to support itself, so Ba ltimore used drug proce eds to keep them afloa t. I n addition,

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United States v. Baltimore

Ba ltimore involved himself in a mortg ag e-f raud scheme , wher eby his g randmother would, with his assistance , purcha se rea l proper ty using financ ing obtained from various lending instit utions based

on falsely inflated home appra isals. T he financ ing exceede d the proper ty ’s purcha se price , and Ba ltimore split the excess with others eng ag ed in the scheme

. He deposited some of his share of the
proce eds into bank ac counts associa ted with his businesses. The district cour

t e ntere d judgme nt on the jury ’s verdic t a nd sentenc ed Ba ltimore to life in prison and other

punishments. Baltimore timely appea led. I I

. Ba ltimore contends first that the district court err ed when it denied his motion under Fe dera l R u l e of Criminal Procedur e 14 for a separ ate trial on the charg e of conspirac y to launder m o n ey . Acc ording to Ba ltimore, “the g overnme nt showed at best only the most tenuous connec tion betwee n the extensive mortg ag e fra ud scheme outlined in Count 4 of the Indictment and the other Counts,” and he suf

fer ed pre judice at tria l on the drug and g un char g es due to the admission of “unre lated[] and highly inflammatory evidenc e” reg arding the money -launde ring conspirac y . The evidenc e offe red to prove the latter offe nse, he maintains, called to mind the rec ent sub-prime mortg ag e crisis and would not have been offe red and admitted in a trial that involved only the drug and g un char g es. The g overnme nt corr ectly responds that Ba ltimore has not prese rved th i s i s s u e for appea l beca use he fa iled to rene w his sever ance motion at the close of the e vidence

. See U nited States v. Allen , 160 F.3d 1096, 1106 (6th Cir. 1998) (“[F]ailure to rene w a motion to sever at t h e cl ose of evidenc e re sults in waiver of the motion.”)

. I n his reply brief, B altimore ac knowledg es the de fec t

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United States v. Baltimore

but seeks to rec ast his challeng e as one relating to misjoinder of t h e counts under Fede ral Rul e of Criminal Procedur e 8, a challeng e which need only be made befor e trial – which Ba ltimore say s he did – to prese rve for appea l. See United States v. Chavis , 296 F. 3 d 4 5 0 , 4 5 7-58 (6th Cir. 2002). Ba ltimore’s attempt to re- char acte rize his challeng e on appe al is not well-taken. Reg ardle ss of whether Ba ltimore is corr ect that his pre- trial motion in the distric t co u rt
proper ly raised challeng es under both Rule 14 and Ru l e 8 , cf. United States v. Hatcher , 680 F.2d 438, 441 (6th Cir. 1982) (g ener ous ly in te r p r e ti n g the defe ndant’s pre- trial motion for sever ance made under Rule 14 as one raising a challeng e u n d er Rule 8 as well); but see id. at 446 (Ke nnedy , J ., dissenting) (“Rule 8(b) issues are not inhere ntly befor e the trial court in Rule 14 motions.”), on appea l he raises his Rule 8 challeng e only in his reply brief, and we g ener ally decline to rea ch 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 argum en t s n o t raised in an opening brief a

re f orfe ited). I n his opening brief, contending that the di strict court abused i ts discretion in not order ing
separ ate trials, Ba ltimore focuse s entirely on the evide nce offered at trial and how he appar ently was p re j u diced by it, rathe r than on the corr ectne ss of joining the offe nses in the indictment

. T h i s 1

T o b e s ure, Ba ltimore does set out in his brief some law on Rule 8 and the appropri at e 1 standard of revie w. But that is insufficient by itself to trig g er our revie w. See United States v. Kelso , No. 09-6536, 2012 WL 934024, at *6 (6th Cir. Mar. 20, 2012) ( holding that the defe ndant waived a challeng e to the district court’s denial of his motion for a new trial based upon newly discovere d evidenc e whe re he “mer ely set out the standard of revie w and the e lements of the c laim,” but “did not argue or explain how that standard or those elements wer e satisfied in this case ”); Crozier , 259 F.3d at 517 (“We will n o t al l o w Burton to argue insufficient evidenc e as to the ‘possession of a - 4 -No. 10-3305

United States v. Baltimore

argument is clea

rly one under Rule 14, not Rule 8. Challeng es under the two rules are distinct, and

we cannot ignor e their differ ence s. See United States v. Lloyd , 10 F.3d 1197, 1214 (6th Cir. 1993) (“A lthough the reme dy for misjoi nder under Rule 8(b) and prejudicia l joinder under Rule 14 is the

same – sever ance and separ ate trials – the two rules are analy tically and proce durally distinct.”). For example, whether joinder of offe nses is proper under Rule 8 is deter mined by ref

ere nce solely to the alleg ations in the indictment, wher eas whether separ ate trials should be order ed (or should have been order ed) under Rule 14 for proper ly joined offe nses is deter m ined by what is likely to happen (or
actua lly does happen) at trial. Chavis , 296 F.3d at 456-57. That is why challeng es under Rule 14
must be rene wed at the close of the evidenc e (to see if the joinder prejudice d the defe ndant at trial), but challeng es under Rule 8 need not be rene wed. Id. at 457. Moreove r, a district court h as “no discretion on the question of sever ance ” when offe nses are misjoi ned, id. at 456, but whether to order
sep ar at e t ri als (or a new trial) for proper ly joined offe nses is entrusted to the court’s discretion, United St ates v. Atchley , 474 F.3d 840, 852 (6th Cir. 2007). See also Ll o yd , 1 0 F.3d at 1214-15. Be cause Ba ltimore raises the indictment’s alleg ed Rule 8 defe ct only in his reply brief, the challeng e is forfe ited. 2

firea rm’ char g e in his reply brief, simply beca use he cited g ener ally to 18 U.S.C. § 922 in his initial brief.” ); see also McPhe rson v. Kelsey , 125 F.3d 989, 995-96 (6th Cir. 1997) (“[I ]ss ues adver ted to in a perfunctor

y manner , unacc ompanied by some eff ort at d ev el o p ed argumentation, are deeme d waived.” (citation and inter nal quotation marks omitted)). But even if Ba ltimore had proper ly raised his Rule 8 challeng e on appea l, w e would reje ct 2 it. Rule 8(a) permits a defe ndant to be char g ed in a single indictment w ith multiple offe nses if the offen s es “a re o f t he same or simil ar char acte r, or are based on the same act or transac tion, or are connec ted with or constitute parts of a common scheme or plan.” Fe d. R. Crim. P. 8(a)

. As stated - 5 -No. 10-3305

United States v. Baltimore

I I I

. Ba ltimore next contends that the district court err ed when it denied his motion to dismiss the indictment on acc ount of delay in indicting him. “[T] he applica b l e s t at u t e of limit ations

. . . is

. . . the primary g uara ntee ag ainst bring ing overly stale criminal char g es.” United States v. Marion , 404 U.S. 307, 322 (1971) (quoting United States v. Ewell , 383 U.S. 116, 122 (1966))

. I t is not, howeve r, the only g uara ntee. The Due Process C l au s e of the Fifth Amendment, too, “has a limit ed role to play in protec ting ag ainst oppressi v e delay .” United States v. Lovasco , 431 U.S. 783, 789 (1977). Where pre- indi ct m ent delay cause s substantial prejudice to a defe ndant’s rig ht to a fair trial, and the delay was intentionally cre ated by the g overnme nt to g ain a tactica l advanta g e, the Due Process C l au s e re quires dismiss al of the

above, “[w] hether joinder [ is] proper und er R u le 8(a) i s deter mined by the allega

tions on the face of the indictment.” Chavis , 296 F.3d at 456-57. Her e, the alleg ations demonstrate that the offe nse of conspiring to launder money was proper ly joined with the drug and g un offe nses beca use all the offe nses wer e alleg ed in the indictment to be connec ted with, or part of, a common scheme or plan. Count one char g ed a conspirac y to distrib u t e drug s. One of the many alleg ed objects of that conspirac y was to launder drug proce eds by conducting financ ial transac tions, operating business enter prises, buy ing proper

ty , and filing false tax returns to conce al and disguise the nature of the drug proce eds. Count four essential l y char g ed thi s conspirator ial object as a separate conspirac y . One o b j ec t of this conspirac y was to deposit cash derive d from drug dealing into bank acc ount s o f ostensibly leg itimate businesses in an attempt to make the funds appe ar le g itimate, and two of the overt acts alleg ed in count four involved prec isely that. I n sum, the indictment proper ly joined count four with counts one throug h three beca use all t h e counts constituted various parts of a common scheme or plan to sell drug s and launder the p ro ce ed s . I n his reply brief, Ba ltimore ignor es the indictment’s alleg ations and focuse s instead on the evidenc e offe red at trial, despite the irrele vance of considering trial evidenc e in a challeng e under Rule 8. See id. at 457 (“B eca use the propriety of a Rule 8 joinder is deter

mined solely by the initial alleg ations of the indictment, there is no need to assess what actua lly happene d in the trial.” (quoting United States v. Terry , 911 F.2d 272, 277 (9th Cir. 1990))). - 6 -No. 10-3305

United States v. Baltimore

indictment. Id. at 795 & n.17; Marion , 404 U.S. at 324; see also United States v. Gouve ia , 467 U.S. 180, 192 (1984). B eca

use a defenda

nt must m eet both par

ts of the test to warr ant dismissal of the indictment, we need only addre ss one part if the defe ndant’s showing on that part is not sufficie nt. See United States v. Gree ne , 737 F.2d 5 7 2 , 5 74-75 (6th Cir. 1984). A defe ndant bear s 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 standa

rd for pre- indictment delay

is nearly insurmountable”)

. We revie w the district court’s fac tual finding s rega rd i n g t h e g overnme nt’s intent and the resulting prejudice to the defe ndant for clea r err or. The ultimate decision whether to dismiss the indictment is revie wed for an abuse of discretion. United States v. Scott , 579 F.2d 1013, 1014 (6th Cir. 1978); see also United States v . McD ougle , 82 F. App’ x 153, 158 (6th Cir. 2003). Her e, there was indee d a l en gt h y delay by the g overnme nt in char g ing Ba ltimore. As the district court noted, much of the conduct alleg ed in the indictment occur red m o re than five y ear s befor e the initial in d i ct m en t wa s returne d, and other conduct occur red almost five y ear s befor e indictment. But the re l ev an t q uestion is not whether there was delay , but rathe r whether the

3
go v ernment intentionally delay ed for the purpose of g aining a tactica l advanta g e and wh et h er Ba ltimore suffer ed substantial pre judice as a

result.

Eac h count in the indictment is subjec t to a five-y ear statute of limit ations. See 18 U.S.C. 3 § 3282. For conspirac y offe nses, the period beg ins on “the date of the last overt act in fur thera nce of the conspirac y alleg ed in the indictment.” United States v. Smi t h , 197 F.3d 225, 228 (6th Cir. 1999). B altimore does not conte nd that any of the c ounts are time- barr ed. - 7 -No. 10-3305

United States v. Baltimore

The district court conclude d that the delay in this case was cause d b y t he continued investigation of Ba ltimore, not in order to g ain an advanta g e. Ac co rd i n g t o the g overnme nt, the Drug Enforc ement Ag ency continued to investigate Ba ltimore up to the time of indictment. Gra nd jury proce eding s continued until that time a s well, as witnesses wer e located and their cooper ation

s ecured. The district court was permitted to rely upon the g overnme nt’s repr esenta tions, s ee Lovasco , 431 U.S. at 796; Rogers , 118 F.3d at 476-77, and we cannot say that its finding is clea rly

err oneous. Delay cause d by continued investigation cannot g ive rise to a depriva tion of due proce ss. Lovasco , 431 U.S. at 796. Resisting this result, Ba ltimore asks us to conclude that the g overnme nt’s offe red rea son for its delay – continued investig ation of the off enses – is a pr etext for its deliberate decision to delay indicting him u n t i l h is g randmother , whose testimony Ba ltimore contends was materia l to his defe nse to c onspiracy to la under money , had died. He points to a complaint the g overnme nt f iled 4
ag ainst him in a rela t ed ci v i l fo rfe iture action forty -seve n months befor e he was indicted. That complaint was sup ported by a case ag ent’s aff idavit of probable cause that contained alleg ations Ba ltimore contends wer e materia lly simil ar to those contained in the indictment. But even assuming

a simil arity betwee n the statements in the aff idavit and the alleg ations in the indictment, the
g overnme nt was not constitutionally require d to indict Baltimore onc e it had what it believed was

Ba ltimore states that his g randmother would have testified that she purcha sed rea l estate on 4 her own volition and was not “used” by Ba ltimore for the purpose of launder ing money . I t is unclea r how this testimony would have sup p o rt ed a defe nse on the char g e, espec ially beca use the g overnme nt’s theory on this char g e involved primarily Ba ltimore’s bank deposits of kickbac ks and drug proce eds, not the home purc hases themse lves. - 8 -No. 10-3305

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enoug h evidenc e to succ eed in the c ivil action. T he Supreme Court in Lovasco expressly reje cted the claim that the g overnme nt must indict once it “has assembled sufficie nt evidenc e to prove g uilt bey ond a rea sonable doubt,” 431 U.S. at 792, a standard of proof well more demandin g t h an the preponde ranc e-of-the-e vidence standard the g overnme nt must meet in forf eiture proce eding s, see 18 U.S

. C

. § 9 8 3 (c) (1). I f the g overnme nt is not constitutionally require d to indict once it has sufficie nt evidenc e to prove its case bey ond a rea sonable doubt, it cer tainly is not require d to do so once it has e vidence to prove its case by a pre pondera

nce of the evidenc e. Ba ltimore has offe red nothing to rebut the g overnme nt’s asser tion – and the district court’s finding – that the g overnme nt continued to investigate and build its case until indictment. Be cause he cannot show that the g overnme nt delay ed indicting him to g ain a tactica l advanta g e, we reje ct his due proc ess claim. I V. F in a ll y , Ba ltimore contends that insufficient evidenc e supports his c o nv ic ti o n s f o r c o n s p ir a c y to launder money and eng ag ing in a continuing criminal enter prise. When revie wing the sufficie ncy of the evidenc e in support of a jury verdic t, we view the evidenc e in the light most favor able to the
g overnme n t and determine whether any rational trier of fact could have found the elements of t he crime bey ond a rea sonable doubt. United States v. Abboud , 438 F.3d 554, 589 (6th Cir. 2006). We do not “re weig h the evidenc e, ree valuate the cre dibilit y of witnesses, or substitut e our judgme nt for
t h at o f t h e jury .” United States v. Deitz , 577 F.3d 672, 677 (6th Cir. 2009) (citation and intern al quotation marks omitted).

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United States v. Baltimore

A. Ba ltimore first challeng es his conviction for conspirac y to launder money . To convict on this char g e, the g overnme nt had to prove that Ba ltimore “ag ree d with another person to v iolate the substantive provisions of the money -launde ring statute during the period alleg ed in the indictment.” See United States v. Hyne s , 467 F.3d 951, 964 (6th Cir. 2006). The elements of conce alment money launder ing are : (1) use of funds that are proce eds of unlawful activity ; (2) knowledg e that the funds

are proce eds of unlawful activity ; and (3) conducting or attempting to cond u c t a f in a n c ial transac tion, knowing that the transac tion is desig ned in whole or in part to disguise the nature , location, source ,
owner ship, or control of the proce eds. 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. W arshak , 631 F.3d 2 6 6 , 3 1 9 -20 (6th Cir. 2010). Ba ltimore does not challeng e the ag ree ment aspec t of the conspirac y conviction. Rather, he contends that there was insufficient evidenc e on the first and third elements of the money -launde ring offe nse he alleg edly conspired to commit. As h e sees it, “the g overnme nt’s proof on money launder ing failed since its own proof established that Ba ltim o re p u t up none of his own m oney to

ac q u i re t h e proper

ties outlined in Count 4, thus the g overnme nt failed to establish that Ba ltim o re used any funds that ar e the pr ocee ds of unlawf ul a ctivity .” Fur

thermore , Ba ltimore maintains, the evidenc e also established that the purcha ses wer e made in B altimore’s g randmother ’s name not to disguise the nature of the illega l proce eds, but beca use s h e had the highe st cre dit score and could

secur e the most financ ing. Ba ltimore is corr ect reg arding a lack of evidenc e that he used any of his

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United States v. Baltimore

o wn m o n ey to purcha se rea l estate. He is also corr ect reg arding the rea son the proper ty was purcha sed in his g randmother ’s name. But Ba ltimore’s argument is somewhat of a red herr ing, for using drug pro ce ed s t o p urcha se rea l proper ty was but one aspec t of the multi-face ted conspirac y alleg ed in the indictment. Ba ltimore has ignor ed on appea l the other aspec ts of the conspirac y that

are supported by

sufficie nt evidence

. Specifica lly , one object o f t h e co nspiracy alleg ed in the indictment was to deposit cash deri ved from drug traff

icking and wire fra

ud into the bank acc ounts of Ba ltimore’s ostensibly leg itimate businesses in an attempt to make the proce eds appea r leg itimate. Severa l of the overt acts involved larg e and fre quent deposits of cash into b an k acc ounts Ba ltimore maintained for his businesses. He ope ned one in the na me of B altimore Proper

ties, L L C, and another

in the name of Prestige Auto I mports, L L C. Neither business g ener ated e noug h income to cove r oper ating costs, howeve r. When funds g ot low and bills neede d to be paid, Ba ltimore’s spouse and business partne r, Olivia Ba ltimore, would ask Baltimore for money to cover company or per sonal expenses, and he would g ive her cash for d ep o s i t into the company acc ounts. She was specific ally told never to deposit more than $10,000 at a t i m e, p re s u mably to avoid mandatory I RS repor ting require ments implemented to help law enfor ceme nt discover money launder ing. Olivia testified that the cash for deposit came from the wir e-f raud mortga g e scheme; she also suspec ted that some of it came from d ru g traff icking

. Ba ltimore himself testified that the money rec eived on the home purcha ses was used t o help open the car dealership. I n addition, one o f Ba l t i m o re ’s coca ine di stributors, Lucien

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Kidd, testified that Ba ltimore told him the purpose of the businesses was to “be leg it,” meaning they

wer e cr eate d “to wash mone y throug h [t hem].” Ba s ed upon this evidenc e, the jury could have rea sonably found t hat t he cash deposited i n the company acc ounts constituted proce ed s from illega l activity involving wire fra ud and drug traff icking and was intended at least in part to disguise the source of the proce eds. The evidenc e was sufficie nt to support Baltimore’ s conviction for c onspiracy to launder mone y . B. Ba ltimore next cha lleng es his conviction for eng ag ing in a continuing criminal enter prise. The elements of the offe nse are : (1) the defe ndant committed a felony violation of fede ral narc otics laws; (2) the violation was part of a continuing series of three or more drug offe nses committed by the defe ndant; (3) the defe ndant committed the series of offe nses i n conce rt with five or more persons; (4) the defe ndant acte d as an org anizer, supervisor, or manag er with reg ard to these five or

more persons; and (5) the defe ndant obtained substantial income or res o u rc es from this series of violations. United States v. Burns , 298 F.3d 523, 535 ( 6th Cir. 2002); 21 U.S.C. 848(c). Ba ltimore challeng es only the fourth el em ent of the offe nse. He contends that “the vast majority of the g overnme nt’s evidenc e showed [onl y that he] eng age d in individual drug sales to other individuals” who did not operate at his direc tion or control. He c oncede s that he org anized, supervised, or manag ed two individuals – Tremine Norman and Fr ed Conner – both of whom he

rec ruited to provide persona l protec tion or t o p u n i s h o t h er drug deale rs. There fore , for the

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conviction to stand, t h e ev idence must demonstrate that Ba ltimore org anized, supervised, or manag ed at lea st three other s. We have stated befor e that the § 848(c) rela tionship require ment is flexibl e. “The defe ndant’s rela tionship with the five other individuals need not exis t at the same moment in time. There can exis t separ ate, individual rela tions 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 ) (i n t er nal citation omitted). But simply buy ing drug s from an “org anizer” does not meet the rela tionship require ment. 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 t h at m er el y “fr onting” drug s, or selli ng them on

cre dit, is not sufficie nt to establish org anizer, supervisor, or manag er status). A buy er- s ell er rela tionship must be coupled with some ty pe of formal or infor

mal authority

of t he seller over the buy er to establish the rela tionship nece ssary under the statute. English , 925 F.2d at 157. Evidence of authority can include instructing buy ers reg arding the lang uag e they may use to ref er to drug s on the phone; setting drug resa le price s; dictating the manner of sale to others – whether cash or cre dit

– and to whom drug s may be sold; monitoring when buy ers g et paid by downstream purcha sers; and d i ctating the quality and permissible dilution ratio of the drug s sold. Id. Moreove r, ap ar t fr o m a buy er- seller rela tionship, a defe ndant org anizes, supervises, or manag es another if he is able to store drug s in the person’ s house or rec ruits the person to transport drug s on his behalf

. See United States v. C halkias , 971 F.2d 1206, 1214 ( 6th Cir. 1992) (per curiam); see also United States v. W ard , 37 F.3d 243, 247 ( 6th Cir. 1994).

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The evidence shows that Ba ltimore org anized, supervised, or manag ed at least t h re e o t her
persons in addition to Tremine Norman and Fr ed Conner. Fi rs t , t h ere is Anthony J ohnson. At Ba ltimore’s reque st, J ohnson introduced Ba ltimore to the coca ine marke t in L exington, Kentucky , and Ba ltimore beg an selling coca ine ther e wi t h J ohnson’s help. Roughly once per wee k for two
y ear s the two would drive to L exington to se ll thre e to f ive kilogr ams of coca ine to c ustomers that J ohnson had develope d for Ba ltimore. J ohnson also introduced Ba ltimore to a friend who allowed Ba ltimore to store coca ine in her home regularly

. J ohnson also helped Ba ltimore transport coca ine
to Covington, Kentucky

. On one occa sion, at Ba ltimore’s instruction, J ohnson distributed some of Ba ltimore’s coca ine to another customer, Antonio Colli ns. Another time, Ba ltimore asked J ohnson to cook coc aine into cr ack c ocaine for a nother c ustomer to appea se the c ustomer. Next, there is Carlos Young

. Young sold coca ine he boug ht from Ba ltimore on cre dit. But in order to be able to purcha se coca ine from Ba ltimore, Young was require d to trave l to L exington
t o pick up drug s from Ba ltimore’s stash house and transport them to Cincinnati. Ba l t i m o re org anized the scheme for transporting the drug s. The two would drive to L exington in differ ent car s
to pick up Ba ltimore’s drug s fro m h is stash house. On the drive back, Ba ltimore would follow Young , who would car

ry the drug s. That way , if law enfor ceme nt attempted to pull over either car , Ba ltimore would distract them with a high- speed chase while Young safe ly t ra n s ported the drug s back to Cincinnati. B altimore supplied Young with a ca r fr om his lot for the tr ips. Lucien Kidd also sold coca ine for Ba ltimore. Ba ltimore fronted Kidd drug s, and Kidd would sell them and repay Ba ltimore. I n the beginning of t heir relationship, Ba ltimore told Kidd to find

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United States v. Baltimore

an addre ss to which Ba ltimore could ship coca ine from California. Kidd offe red his aunt’s addre ss in Cincinnati, and Baltimore mailed the cocain e t o that addre ss. Ba ltimore org anized the cocaine

s u p p l y . I n 2001, Ba ltimore beg an buy ing coca ine from a man named Armando Soto. Kidd wa s responsible for

picking up the drug s eac h month from Soto. Kidd som etimes helped tra nsport the

coca ine to Ba ltimore’s distributors in L exington, even though he never sol d d ru gs there himself. During the rela tionship, Kidd would follow Ba l t i m o re’s instructions with respe ct to sales and distributions of coca ine. Once , Ba ltimore instructed Kidd to meet with Ba ltimore’s lawy er at a hotel and g ive him $50,000 on Ba ltimore’s behalf

. Another time, B altimore instructed Kidd to trave l to the Kentuc ky

Der by in L ouisvill e to meet Baltimore and his attorney and drop of

f $10,000. Afte r dropping off the mone y , Kidd drove stra ight ba ck to Cincinnati. Viewing the evidenc e in the lig ht most favorable to the g overnme nt, a jury could conclude that Ba ltimore was an org anizer, supervisor, or manag er with respe ct to five individuals he acte d in

conce rt with to sell drug s: Tremine Norman, Fred Conner, Anthony J ohnson , C ar los Young , and Lucien Kidd. The evide n ce wa s sufficie nt to support Ba ltimore’s conviction for eng ag ing in a

5 continuing c riminal enterpr ise. V. The g overnme nt conce des that the drug conspirac y char g ed in count one is a lesser included offe nse of the continuing criminal enter prise char g ed in c ount f

ive. See Rutledge v. United States , Having identified five individuals with whom Ba ltimore had the nece ssary rela tionship for 5 purposes of § 848(c) , we need not addre ss whether his rela tionships with the numerous other individuals identified in the gove rnment’s brie f satisfy the statute. - 15 -No. 10-3305

United States v. Baltimore

517 U.S. 292, 307 (1996). The ref ore, be cause we aff

irm Ba ltimore’s conviction for eng ag ing in a continuing criminal enter

prise, we must vacate his drug -conspira cy conviction to avoid violating his rig hts under the Fifth Amendment’s Double J eopar dy Clause. See United States v. Ave ry , 128 F.3d 966, 972 (6th C i r. 1997). Vac ating Ba ltimore’s drug -conspira cy conviction does not aff ect the mandatory life sentenc e imposed on his continuin g - c r im inal-ente rprise conviction. Acc ording ly , we need not r emand f

or re sentenc ing. VI

. For these rea sons, we vacate Ba ltimore’s drug -conspira cy conviction (count one) and aff irm in all other re spects.

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