United States v. Kalb

• Decision Date: 08 May 2014
• Docket Number: No. 13–1954.,13–1954.
• Citation: 750 F.3d 1001
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Marlene KALB, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

750 F.3d 1001

UNITED STATES of America, Plaintiff–Appellee

v.Marlene KALB, Defendant–Appellant.

No. 13–1954.

United States Court of Appeals,

Eighth Circuit.

Submitted: March 12, 2014.

Filed: May 8, 2014.

John Wesley Hall, Jr., argued, Little Rock, AR, for appellant.

Cameron C. McCree, AUSA, argued, Little Rock, AR (Julie Peters, AUSA, on the brief), for appellee.

Before WOLLMAN, MURPHY, and GRUENDER, Circuit Judges.

MURPHY, Circuit Judge.

Marlene Kalb, a lieutenant in the Helena–West Helena, Arkansas police department, was convicted by a jury of two counts of attempted extortion under color of official right, in violation of 18 U.S.C. § 1951(a), and two counts of attempted possession with intent to distribute cocaine, in violation of 21 U.S.C. § 846. The district court ¹ sentenced Kalb to a total of 30 months imprisonment and three years supervised release. She appeals on the grounds that there was insufficient evidence to support her convictions. We affirm.

The government presented the following evidence through testimony and audio recordings at Kalb's trial. As part of a joint federal and state investigation into police corruption known as Operation Delta Blues, a drug trafficker from Helena–West Helena known as “CC” was recruited to help carry out stings against official targets. CC went to the Helena–West Helena police department on September 1, 2011 to talk with an officer he intended to pay to provide him with a police escort while he transported illegal drugs through town. Corrupt officers in Helena–West Helena had been providing drug traffickers like CC with police escorts to protect them from being stopped by either legitimate law enforcement officers or other corrupt officers who would seize the drugs to sell or use themselves.

When he checked in at the front desk, CC was told he had an outstanding warrant for a suspended license. Worried that an arrest would alert local police to his cooperation with the FBI, he discarded the wire he was wearing in a bathroom where it was picked up by a state trooper working for the Bureau. CC saw Marlene Kalb, a close family friend who attended Sunday dinners at his mother's house, as he left the bathroom. Kalb knew about CC's drug dealing and had once arrested him for possession of marijuana. CC asked Kalb to get rid of the warrant, and she agreed, following CC to the parking lot so he could pay her. At some point, CC called an FBI agent and left the line open so the agent could listen in on his conversation with Kalb. When they arrived in the parking lot, CC gave Kalb the $500 he had received to give to a targeted officer. Although she warned CC about surveillance cameras covering the parking lot, Kalb took the money. She then escorted CC to his mother's house so that other police officers would not stop him and execute the warrant. Later on, while in an agent's presence, CC called Kalb to thank her for taking the money and letting him out of the warrant.

A week later, on September 9, CC called Kalb and asked her to “trail him out.” By that he meant that she should follow him in her police car as he drove drugs across town so he would not stopped by other officers. CC informed her he would be “loaded down,” which he testified was code for carrying drugs. He explained he did not want to get harassed by police officers while he drove through town because the people supplying him with drugs “pay me too much money.” Kalb said she would help him. On that day CC drove from Mississippi across the bridge over the Mississippi River to the Arkansas side where Kalb was waiting in uniform for him in her marked police car. Kalb followed CC as he drove about ten miles through Helena–West Helena to a gas station on the western edge of town. There, CC again wearing a wire, thanked her for helping him and emphasized that “this truck is loaded with ... drugs.” Kalb told him not to say anything more about it. At the end of the conversation, CC gave Kalb $500 for providing the escort.

CC called Kalb again on September 21 to set up a second escort for September 26, this time from the gas station on the western edge of Helena–West Helena to the Mississippi River bridge. Warning CC to watch out for a particular officer known for seizing drugs and money for personal gain, Kalb agreed to protect him. On September 26, CC called Kalb and told her “I got a shitload of cocaine with me today.” He then drove to the gas station with a $500 roll of cash provided to him by the Bureau. Kalb was waiting for him in her marked police car and fell in behind him when he drove past her. They spoke on the phone for about twenty minutes as they drove to the bridge and Kalb instructed CC to drive within the speed limit at least one time. When CC gave Kalb the $500 at the end of the drive, she told him, “I love you too CC. You be careful. Thank you.” She then called him a short while later to thank him and make sure he was okay.

In a statement she made following her arrest and after her waiver of Miranda rights, Kalb said she had known CC was a drug dealer and that he paid officers to protect his drug shipments. She also said CC had told her he would be carrying cocaine through town and wanted her protection, and she admitted to following CC in her police car two times for $500 each.

At trial Kalb testified that she thought CC was asking her to help him transport motorcycle parts through town and to keep him from getting arrested for driving on a suspended license. She said she told him she would “lock him up” if he had drugs in his truck and thought he was joking when he said he was carrying cocaine. She also claimed she could not hear him talking about the drugs during their drive because her windows were rolled down, her phone's speakers were not working properly, the cell phone coverage was spotty, and her hearing is bad. She also testified that she searched CC's truck at the end of the escort and that CC threw the money into her vehicle as she drove away in response to a call.

A jury convicted Kalb on December 14, 2012 of two counts of attempted extortion under color of official right, in violation of 18 U.S.C. § 1951(a), and two counts of attempted possession with intent to distribute cocaine, in violation of 21 U.S.C. § 846. She was acquitted of the money laundering charges. The district court sentenced her to 30 months in prison and 3 years supervised release. Kalb appeals her convictions, arguing there was insufficient evidence to show either that she induced CC to part with his money or that she was in constructive possession of the nonexistent cocaine which CC had purportedly carried in his vehicle.

We review de novo the sufficiency of evidence to support a conviction and “will uphold the verdict if there is any interpretation of the evidence that could lead a reasonable-minded jury to find the defendant guilty...