101 F.3d 1263 (8th Cir. 1996), 96-1758, United States v. Jones

Docket Nº:96-1758, 96-1760.
Citation:101 F.3d 1263
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Wendell JONES, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Lane BARNES, Defendant-Appellant.
Case Date:December 02, 1996
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 1263

101 F.3d 1263 (8th Cir. 1996)

UNITED STATES of America, Plaintiff-Appellee,

v.

Kenneth Wendell JONES, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Jeffrey Lane BARNES, Defendant-Appellant.

Nos. 96-1758, 96-1760.

United States Court of Appeals, Eighth Circuit.

December 2, 1996

Submitted Oct. 21, 1996.

Rehearing and Suggestion for Rehearing

En Banc Denied Dec. 31, 1996.

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[Copyrighted Material Omitted]

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Heidi Crissey, Stillwater, MN, argued, for Kenneth Wendell Jones.

Douglas Peine, St. Paul, MN, argued, for Jeffrey Lane Barnes.

Jeffrey Paulsen, Assistant U.S. Attorney, Minneapolis, MN, argued, for U.S.

Before WOLLMAN, LAY, and BRIGHT, Circuit Judges.

LAY, Circuit Judge.

In an alley in St. Paul, Minnesota, at three o'clock in the morning on June 24, 1990, witnesses discovered the burning, dead body of twenty-six-year-old Duon Walker. Duon was a cocaine dealer from Los Angeles who was temporarily staying with Kenneth Wendell Jones in Jones' St. Paul condominium. The cause of Duon's death was three gunshots to the head at close range with a .22 caliber handgun. His body had been wrapped in plastic, doused with gasoline, and set ablaze within two miles of Jones' condominium. Shortly before Duon's murder, Jones and Duon executed a drug deal in Jones' condominium in which Jones paid Duon $90,000 cash.

Just prior to June 24, Jeffrey Lane Barnes had also come to Minnesota from his home in Los Angeles. The day after witnesses discovered Duon's burning body, airport police stopped Barnes at the Minneapolis Airport for reasons not directly related to this case while Barnes prepared to board a return flight to Los Angeles under an assumed name. Police seized a loaded .22 caliber revolver and $13,900 cash from Barnes' checked baggage following a search.

Over two years passed, but law enforcement authorities failed to solve Duon's murder. Barnes moved to Minnesota, and in late 1993, FBI agents obtained authorization to wiretap Jones' and Barnes' residences, and recorded discussions regarding cocaine dealing and murder. Taped discussions between Jones and Barnes led authorities to others involved in drug distribution. The subsequent investigation revealed that Jones headed a substantial drug distribution operation responsible for importing at least fifty pounds of cocaine into Minnesota for resale.

Authorities learned that Barnes told three different individuals, including Barnes' nephew, a fellow inmate, and a pastor, that he and Jones had killed Duon Walker after Duon attempted to cheat them in a drug deal. Irene Schuck, Jones' girlfriend, helped Jones launder drug money through real estate deals, and she had told witnesses that at Jones' direction she cleaned up a large quantity of blood from Jones' bathroom within two days of Duon's murder. Authorities disassembled

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the tile floor in Jones' bathroom and discovered that blood had seeped through the grout lines and tile base and settled in the wooden subflooring. A ballistics expert established that the .22 caliber handgun airport police found in Barnes' baggage was the gun used to kill Duon. Authorities also intercepted a telephone discussion between Barnes and a government informant regarding how the two might kill a specific drug dealer.

A federal grand jury indicted Jones for intentionally engaging in a continuing criminal enterprise (CCE) in violation of 21 U.S.C. § 848(a). It indicted both Jones and Barnes for: intentionally killing Duon in the furtherance of a continuing criminal enterprise (CCE-murder) in violation of 21 U.S.C. § 848(e)(1); conspiring to distribute over five kilograms of cocaine, including over 50 grams of crack, in violation of 21 U.S.C. § 846; and intentionally killing Duon while engaging in a conspiracy to distribute drugs in violation of 21 U.S.C. § 848(e)(1).

The government argued at trial that Barnes was the hit man Jones summoned from Los Angeles to kill Duon for $20,000 because Duon cheated Jones in a cocaine transaction, and that the two killed Duon in Jones' bathroom and later disposed of the body by setting it afire in the alley. In the joint trial, over Jones' objections, the district court admitted the hearsay testimony of Barnes' redacted confessions to Jeffrey Barnes' nephew, Russell Barnes, and to a pastor, Marc Looney. The confessions originally included admissions that Barnes and Jones murdered Duon. However, neither Russell nor Looney referred to Jones by name when testifying about Barnes' confessions.

The jury convicted Jones on all counts charged. The district court entered judgment and sentenced Jones to concurrent life sentences for each of the four counts against him. The jury convicted Barnes of CCE-murder and of conspiring to distribute cocaine. It deadlocked as to whether Barnes intentionally killed Walker while engaging in a conspiracy to distribute drugs. The court declared a mistrial as to the deadlocked count and sentenced Barnes to two concurrent life sentences. Both defendants appeal.

DISCUSSION

Barnes and Jones each raise several grounds of error. We deal with their contentions seriatim.

Barnes

CCE-Murder

Barnes argues that his conviction of CCE-murder under 21 U.S.C. § 848(e)(1) cannot stand because the statute imposes liability solely on the CCE "kingpin." Because Barnes did not raise this issue below we review only for plain error. Fed.R.Crim.P. 52(b); United States v. Olano, 507 U.S. 725, 734-35, 113 S.Ct. 1770, 1777-78, 123 L.Ed.2d 508 (1993).

Barnes' reliance on the general CCE principle that the kingpin is the primary focus is misplaced as it relates to his conviction of CCE-murder. The murder subsection of the statute imposes liability not just on a person "engaging in" the CCE, but alternatively on a person "working in furtherance of" the CCE, where he or she also either intentionally kills a person or "counsels, commands, induces, procures, or causes the intentional killing." 21 U.S.C. § 848(e)(1)(A). The Seventh Circuit in United States v. Cooper distinguished persons "engaged in" a CCE from persons "working in furtherance of" a CCE, and concluded that one need not be the CCE kingpin (i.e., "engaged in" a CCE) to work to further the CCE. 19 F.3d 1154, 1164-65 (7th Cir.1994). Reasoning that the phrase "working in furtherance of" would be superfluous if it referred only to kingpins, the Cooper court affirmed the conviction of a CCE supervisee who killed at the behest of the CCE kingpin. Id.; see also United States v. McCullah, 76 F.3d 1087, 1103 (10th Cir.1996) ("[T]he reach of section 848(e) extends to hired henchmen ... who commit murder to further a drug enterprise in which they may not otherwise be intimately involved.").

Following the Seventh Circuit's reasoning in Cooper, we hold that a person does not avoid prosecution for CCE-murder under § 848(e)(1)(A) simply based upon his supervisee status in the CCE. Accordingly, when

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Barnes shot and killed Duon as a result of Duon's attempt to cheat Jones' CCE out of drugs or drug money, he did so in the "furtherance of" Jones' CCE within the meaning of § 848(e)(1)(A). We hold the district court did not err in submitting this issue to the jury.

Sufficiency of Evidence: CCE-Murder and Drug Distribution Conspiracy

Barnes challenges the sufficiency of the evidence as it relates to his convictions of CCE-murder and conspiracy to distribute cocaine. We review sufficiency of the evidence by considering the evidence in the light most favorable to the jury's verdicts. United States v. Malone, 49 F.3d 393, 397 (8th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 208, 133 L.Ed.2d 141 (1995).

Barnes contests the ballistics evidence offered by ATF agent John O'Neill and O'Neill's conclusion that the firearm in Barnes' luggage was the weapon used to kill Duon. Barnes also...

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