103 F.3d 1402 (8th Cir. 1997), 95-4216, United States v. Wilson

Docket Nº:95-4216, 95-4217.
Citation:103 F.3d 1402
Party Name:UNITED STATES of America, Appellee, v. Barry Keith WILSON, Appellant. UNITED STATES of America, Appellee, v. Frederick Fernando McGEE, Appellant.
Case Date:January 02, 1997
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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103 F.3d 1402 (8th Cir. 1997)

UNITED STATES of America, Appellee,

v.

Barry Keith WILSON, Appellant.

UNITED STATES of America, Appellee,

v.

Frederick Fernando McGEE, Appellant.

Nos. 95-4216, 95-4217.

United States Court of Appeals, Eighth Circuit.

January 2, 1997

Submitted May 14, 1996.

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Patrick Fitzgerald, argued, Alton, IL (Henry B. Robertson, St. Louis, MO, on the brief), for Appellant Frederick McGee.

Edward J. Rodgers, Asst. U.S. Atty., St. Louis, MO, argued, for Appellee.

Before MORRIS SHEPPARD ARNOLD, Circuit Judge, and HEANEY and HENLEY, Senior Circuit Judges.

HENLEY, Senior Circuit Judge.

Barry Keith Wilson and Frederick Fernando McGee were convicted of conspiracy to possess cocaine base with intent to distribute in violation of 21 U.S.C. § 846. McGee was also convicted of assault on a federal officer with a deadly weapon under 18 U.S.C. § 111. Wilson and McGee have filed separate briefs on appeal and raise several separate issues. After consideration of each claim raised, we affirm the judgment of the district court as to each defendant. 1

BACKGROUND

On March 8, 1995, two DEA agents on drug interdiction patrol at St. Louis' Lambert Airport observed two persons later identified as Wilson and McGee standing in line at an airport ticket counter. The two men appeared nervous and were looking around. The agents noticed that McGee had braided

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hair and a gold tooth. The agents saw Wilson count out cash and hand it to the ticket agent and also saw McGee write something on a piece of paper and hand it to the ticket agent.

After McGee and Wilson left the ticket counter, the DEA agents questioned the ticket agent and learned that Wilson and McGee had paid in cash for a round trip ticket for the next day from Phoenix to St. Louis in the name of Laura Dugan. The piece of paper McGee handed to the ticket agent gave the name Freddie Lakes as the name of the purchaser of the ticket.

Because they were suspicious that in the circumstances this cash purchase of a plane ticket suggested a drug transaction, the next day drug task force agents waited at the gate where Dugan's plane was to arrive. They observed her as she deplaned and walked to the baggage area. They noted that she was looking around and appeared nervous.

As she left the terminal, one of the agents approached Dugan and identified himself. He questioned her and then asked if she would agree to be searched. Dugan agreed and a search of her person revealed a package containing approximately half a kilogram of cocaine taped to her waist under her clothing. Dugan agreed to cooperate and gave a statement about her trip to St. Louis.

She stated that her real name was not Laura Dugan but Kirsten Mactas and that she was delivering the drugs for a man named Big John. Later it was learned that her real name was not Kirsten Mactas but Tara Deatsch-Wright. Deatsch-Wright stated that she was to deliver the cocaine to a man she didn't know but whose name was Fred and who would have his hair in braids and a gold tooth. She was to meet Fred at the Hampton Inn Hotel near the airport.

Deatsch-Wright agreed to assist the officers by making a controlled delivery of the cocaine at the hotel. Officers on stakeout at the hotel observed Wilson and McGee arrive in a van. They then saw Wilson take the suitcase containing the cocaine. As the officers moved in both McGee and Wilson attempted to flee but Wilson was apprehended. McGee, however, drove off in the van, running over the foot of a DEA agent in the process. McGee was apprehended some days later.

Wilson was convicted and sentenced to 151 months in prison for conspiracy to possess crack cocaine with intent to distribute. McGee was convicted of that charge and also of assault on a federal officer with a deadly weapon (for running over the officer's foot with the van in his attempt to flee) and was sentenced to 276 months in prison.

BARRY WILSON

Wilson's defense theory at trial was that he was merely a friend and companion of McGee who happened to be in the wrong place at the wrong time. He contended that he knew McGee primarily from their performances together in a rap music group. Wilson argued that he had loaned money to various people before and that he had agreed to loan McGee the money necessary to buy a plane ticket for a woman McGee described as his girlfriend.

Wilson attempted to show that he accompanied McGee on the trip to the airport to purchase the ticket because he wanted to make sure the loan actually went toward the plane ticket. Wilson also contended that he accompanied McGee to the Hampton Inn Hotel because McGee invited him to go along to pick up his girlfriend.

Wilson insisted that he knew nothing of any involvement by McGee in drug trafficking and that he had no idea that the woman described as McGee's girlfriend was actually delivering drugs. Thus, he argued that his presence at the airport and the hotel was purely innocent. He also argued that he had no knowledge that the suitcase brought to the hotel by Deatsch-Wright contained drugs and that he had no intent to possess or distribute any drugs.

Despite the testimony elicited by Wilson in support of this theory of the case, the jury found him guilty of conspiracy to possess cocaine base with intent to distribute.

Wilson raises three issues on appeal. First, he argues that the trial court erred in refusing to allow him to call a defense witness who he alleges would have corroborated a portion of his defense. Second, he contends

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that the evidence was insufficient as a matter of law to establish a conspiracy. Third, Wilson contends that the trial court erred in sentencing him under the enhanced penalties applicable to cocaine base (crack cocaine). He argues that the evidence was insufficient to establish that the cocaine seized was cocaine base.

Trial Court Ruling on Admissibility of Proffered Defense Testimony.

At trial Wilson did not testify and put on no witnesses in his own defense. Wilson's attorney did, however, examine eight witnesses produced by co-defendant McGee. All of these witnesses offered testimony in support of Wilson's reputation and character; for example, that they had no knowledge that Wilson was ever involved in any illegal drug activity. This and other testimony from these witnesses could be viewed as supporting Wilson's defense theory.

On the last day of testimony in the week long trial, Wilson moved to introduce in support of his defense the testimony of one Al Jones. Wilson's attorney stated in a proffer of proof that Jones would testify that "Barry [Wilson] told him ... that Barry was going to be heading out to the airport to pick up somebody's girlfriend." Wilson contended that this testimony by Jones would have tended to corroborate his version of events, i.e., that he was making the trip to pick up a person he believed was McGee's girlfriend, not accompanying McGee to accept delivery of illegal drugs.

The government raised two objections to this proposed testimony. First, the government contended that the introduction of testimony from Jones would violate an order requiring sequestration of all witnesses which was entered at the beginning of the trial. Both sides had agreed--and the court had ordered--that witnesses should be sequestered, i.e., no witness could attend sessions of court and listen to the testimony of other witnesses. Because counsel for Wilson had not intended to call Jones he had not been barred from the courtroom and had, in fact, attended unspecified portions of the proceedings during the first three days of the trial. The government argued that it would violate this order and unfairly advantage the defendant to call as a last minute witness a person who had sat through the proceedings and listened to the testimony of other witnesses for the government and defense.

The government also objected that this proposed testimony was inadmissible as hearsay, i.e., Jones would testify about something he had heard Wilson say outside the courtroom. The government noted that Wilson's counsel had stated in his opening argument that Wilson would testify in his own behalf and had outlined the nature of that testimony. However, the government said, it appeared that Wilson had later decided not to testify but to use Jones as a means of testifying indirectly without subjecting himself to cross-examination.

Counsel for Wilson contended: (1) he had no intent to subvert the sequestration order and had just learned late the night before that Jones might have relevant information; and (2) the proposed testimony of Jones should be admitted under the exception to the hearsay rule for statements of the declarant's then existing state of mind.

The trial court considered at some length on the record the arguments of counsel on the proposed testimony of Jones and then ruled that the testimony was inadmissible both because Jones had not been sequestered and because his testimony would be inadmissible hearsay. The trial court also noted that to the extent Jones would be asked to testify about Wilson's reputation for good character and lack of involvement in drug activities such testimony would be merely cumulative to the testimony elicited from other witnesses by Wilson's counsel.

Wilson now contends that the exclusion of Jones' testimony was reversible error. He argues again that Jones' testimony was admissible under the exception to the hearsay rule for evidence of the declarant's then existing state of mind. He also argues that Jones' testimony would not have violated the intent behind the sequestration order because counsel simply hadn't known that Jones had relevant evidence to offer. Wilson further contends that he was prejudiced by the trial court's ruling because Jones was the only witness who could have...

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