Replies

By late summer of 1992, members of Emmanuel Umegbolu's Bal-

timore drug organization were refusing to pay him for heroin he had

2 supplied on a contingent basis. More specifically, one member of the

drug organization by the name of Prince Ankrah had refused to pay

Umegbolu for 200 grams of heroin and owed Umegbolu $36,000. In

addition, Darrell Bond (a/k/a Pluck) had robbed Umegbolu of 100

grams of heroin during this same period of time. In September 1992,

Umegbolu ordered Ankrah and Pluck robbed and killed to send a message to other members of his drug organization.

On September 7, 1992, Umegbolu called Thomas Faulkner, a local

Baltimorean and dealer for Umegbolu. Umegbolu told Faulkner to

come to the Econolodge on Security Boulevard in Baltimore. At the

motel, Faulkner met the enforcers Steven Cox and individuals identi-

fied only as Terrence and Rob in addition to Umegbolu. Umegbolu

told Faulkner that he wanted him to help Cox find Pluck and Pluck's

accomplice, one Basil, to get Umegbolu's money back. Cox and

Faulkner unsuccessfully attempted to locate Pluck and Basil.

On September 8, 1992, the next day, Cox, Terrence, and Rob went

to Pluck's mother's house to find Pluck. They located the house but

did not go inside. The next day, Cox and Umegbolu visited Ankrah

and demanded payment. Ankrah refused to pay and called security;

Cox and Umegbolu were forced to leave. Later, Cox, Terrence, and

Rob visited Pluck's mother's house again, confronted Pluck's mother,

and threatened to kill her and everyone in the house if Pluck did not

return the heroin or money.

After an attempted robbery of a drug dealer on September 9, 1993,

Umegbolu and his enforcers left Baltimore and went to New York.

On September 14, 1992, Cox held a meeting at his record store in

the Bronx with Calvin Deair and Floyd Sinclair to plan another trip

to Baltimore. At the meeting Cox stated that an African, (obviously

Umegbolu), wanted individuals named Pluck and Prince killed in

exchange for a portion of any drugs or money recovered from the

intended victims. Cox decided to have the guns to be used for the kill-

ings transported separately. The next day, Deair and Sinclair gave

Bernard Christian two 9-mm. semiautomatic pistols to take to Balti- more.

Christian arrived in Baltimore by train on September 16, 1992.

Detective Gary Cover of the Baltimore City Police Department

3 stopped him. Christian consented to a search of the bag he was carry-

ing, and Cover found the two pistols Christian was transporting.

Christian then agreed to cooperate.

Later that evening, Christian was placed in Room 825 of the Days

Inn in downtown Baltimore under DEA supervision. The room was

wired with video and audio equipment. The two guns found in Chris-

tian's bag were rendered inoperable and also placed in the room.

Once in the room, Christian called Faulkner. They discussed killing

Pluck. Christian also requested that they bring Martinez.

Cox, Martinez, Deair, and Sinclair arrived in Baltimore during the

early morning hours of September 17, 1992. The four first went to

BWI Airport and changed to a white rental van. They then went to

the Days Inn. Cox and Martinez went up to Room 825 to meet with

Christian, and Deair later followed. Videotape from the room showed

Martinez looking at the two guns. Cox apparently had no physical

contact with the guns in Room 825.

Later in the morning, Cox, Martinez, Deair, and Sinclair left the

motel to meet Thomas Faulkner, who was supposed to point out

Ankrah and Pluck. Christian remained in the motel room with the

guns. According to Faulkner, the five of them drove by Pluck's moth-

er's house (Pluck was not there) and then drove by Ankrah's apart-

ment (Ankrah was not there either). The five next went to the

Welcome Inn on Security Boulevard where Faulkner registered a room in his name.

Martinez and Faulkner then returned to the Days Inn to pick up

Christian. Christian, Martinez, and Faulkner were arrested as they

attempted to leave the motel with Faulkner carrying the guns. Cox,

Sinclair, and Deair were later arrested at the Welcome Inn.

The defendants' trial began on September 13, 1993 and concluded

on November 8, 1993. The jury found Cox guilty of Counts III, IV,

V, VI, and VIII and found Martinez guilty of Counts VI and VIII. The

district court sentenced Cox to 60 months under Counts V and VIII,

which sentence was merged and made to run consecutively with 210

months under Counts III, IV, and VI, for a total sentence of 270

months. Martinez was sentenced to 60 months under Count VIII to

4 run consecutively with 120 months under Count VI, for a total sen- tence of 180 months.

The defendants now appeal. Martinez and Cox both challenge the

sufficiency of the evidence to support their convictions for a violation

of 18 U.S.C. § 924(c) as charged, respectively, in Count VIII and

Counts V and VIII of the indictment. In addition, Martinez contends

that a supplemental instruction given by the district court in response

to a question from the jury violated the due process clause. Both

defendants also argue that the district court erred in sentencing them

under 18 U.S.C. § 1959(a)(5), for attempting or conspiring to commit

murder, when the indictment generically charged them with conspir-

acy to commit a crime of violence. Martinez further objects to the dis-

trict court's use of U.S.S.G. § 2A1.5(a) in determining his base

offense level for sentencing. Finally, Cox asserts that the district court

erred in deferring to post-conviction collateral review the issue of

whether he was entitled to a downward departure on the basis of

incompetency of trial counsel.