U.S. v. Bradford

• Decision Date: 17 October 2000
• Docket Number: 99-3020,99-3019,Nos. 99-3018,99-3021,99-3975,s. 99-3018
• Citation: 246 F.3d 1107
• Parties: (8th Cir. 2001) UNITED STATES OF AMERICA, APPELLEE, v. DEVON JULIAN BRADFORD, ALSO KNOWN AS DEVO, APPELLANT. UNITED STATES OF AMERICA, APPELLEE, v. DANA E. BOSWELL, ALSO KNOWN AS BLUE, APPELLANT. UNITED STATES OF AMERICA, APPELLEE, v. HOWARD L. HARRISON, ALSO KNOWN AS BIG BULL, ALSO KNOWN AS BULL APPELLANT. UNITED STATES OF AMERICA, APPELLEE, v. PHILLIP D. BANKS, ALSO KNOWN AS DEBO, ALSO KNOWN AS PHILBO, APPELLANT. UNITED STATES OF AMERICA, APPELLEE, v. JOSEPH D. ANDREWS, ALSO KNOWN AS JO JO, APPELLANT. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1107

246 F.3d 1107 (8th Cir. 2001)

UNITED STATES OF AMERICA, APPELLEE, v. DEVON JULIAN BRADFORD, ALSO KNOWN AS DEVO, APPELLANT.

UNITED STATES OF AMERICA, APPELLEE, v. DANA E. BOSWELL, ALSO KNOWN AS BLUE, APPELLANT.

UNITED STATES OF AMERICA, APPELLEE, v. HOWARD L. HARRISON, ALSO KNOWN AS BIG BULL, ALSO KNOWN AS BULL APPELLANT.

UNITED STATES OF AMERICA, APPELLEE, v. PHILLIP D. BANKS, ALSO KNOWN AS DEBO, ALSO KNOWN AS PHILBO, APPELLANT.

UNITED STATES OF AMERICA, APPELLEE, v. JOSEPH D. ANDREWS, ALSO KNOWN AS JO JO, APPELLANT.

Nos. 99-3018, 99-3019, 99-3020, 99-3021, 99-3975

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: October 17, 2000

Filed: April 13, 2001

Appeals from the United States District Court for the District of South Dakota. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Beam, Heaney and Morris Sheppard Arnold, Circuit Judges.

Per Curiam.

Devon J. Bradford, Dana E. Boswell, Howard L. Harrison, Phillip D. Banks, and Joseph D. Andrews, appeal their convictions and sentences that stem from a conspiracy to distribute crack cocaine in Sioux Falls, South Dakota. The defendants raise a number of issues in this consolidated appeal, including the sufficiency of the evidence; whether the sentencing comported with Apprendi v. New Jersey, 120 S. Ct. 2348 (2000); whether one, or more than one, conspiracy was proven; whether the motions to sever should have been granted; various evidentiary rulings; and other claims. We affirm the convictions, but, in light of Apprendi, vacate and remand the cases of Andrews and Harrison for resentencing, and of Banks for reconsideration.

I. BACKGROUND

In 1996 and 1997, the defendants and their associates moved from Compton, California to Sioux Falls. Testimony at trial established that the defendants began using the back room of C.J. Stockman's bar in Sioux Falls to distribute crack cocaine. At one point, Harrison, Banks, Boswell, and Bradford lived together in a house they rented using the proceeds from their drug dealing. The defendants and their associates would travel to California to obtain drugs, and would use Western Union to wire money to California.

Controlled buys of crack cocaine were made from Andrews, Bradford, and Banks, at C.J. Stockman's bar or their residences. Agents searching Andrews' apartment pursuant to federal warrants found crack cocaine, travel documents, car rental receipts, drug packaging materials, and telephone numbers for Boswell, Bradford, and a supplier in Compton, California. A search of Bradford's apartment revealed a quantity of crack cocaine and $3,800 in cash.

The indictment charged twelve individuals with conspiracy, money laundering, and drug trafficking. Eight defendants pleaded guilty prior to trial. On April 6, 1999, trial commenced for defendants Banks, Boswell, Bradford, and Harrison. The defendants were found guilty on all counts except counts 3 and 4, which charged Banks with distribution of cocaine base. Andrews remained a fugitive until a later arrest in California. His trial began on July 27, 1999, and he was found guilty of drug trafficking charges.

II. SUFFICIENCY OF THE EVIDENCE

Both Banks and Harrison argue that there was insufficient evidence to support their convictions. In examining the sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict. See United States v. Maggard, 156 F.3d 843, 846 (8th Cir. 1998); United States v. Erdman, 953 F.2d 387, 389 (8th Cir. 1992). Having reviewed the evidence, we conclude that it is sufficient to uphold the convictions of Banks and Harrison.

A. Banks' Convictions

The evidence established that Banks, along with the other defendants, followed Duane Adams from Compton to Sioux Falls. Kimberly Van Noort testified that the group, including Banks, would gather at the house she shared with Adams once a week to meet and "hang out." Another witness, Tara Clayton, testified that Banks once gave her a large rock of crack cocaine to "hold" for him. Mark Washington, a confidential informant, made a controlled buy from Banks at the bar, as did another informant, Leonard Grajczyk. Gary Allen also testified that he purchased crack cocaine from Banks. At one time, Banks split the expenses associated with the house where many of the defendants lived. Taken as a whole, there was sufficient evidence to show that there was a conspiracy, that Banks knew of the conspiracy, that he knowingly joined the conspiracy, and that he was involved in the distribution of crack cocaine. Cf. United States v. Davidson, 195 F.3d 402, 406 (8th Cir. 1999), cert. denied, 120 S. Ct. 1218 (2000) (listing elements required to obtain conviction for conspiracy).

B. Harrison's Convictions

Numerous witnesses testified that they saw Harrison at C.J. Stockman's bar selling crack cocaine. Harrison arranged for two co-defendants, Corissa Murray and Jennifer Sarutzki, to rent the house where members of the conspiracy were to live. In fact, several witnesses described Harrison as being the leader of the group; he was the "boss" and enforced the rules regarding whose turn it was to sell cocaine at the bar. Harrison told Autrie Kimble, whom he had previously supplied with drugs, that only "Palmer Block" could sell from the bar. Harrison, Bradford, and Boswell later told Kimble to slow down his drug sales because it was cutting into their business; Harrison did "most of the talking" at that confrontation.

In his appellate brief, Harrison disputes the credibility of the witnesses who testified at trial. Determining the credibility of the witnesses, however, is a function of the jury. See United States v. Harris, 193 F.3d 957, 958 (8th Cir. 1999). There was ample evidence presented to sustain Harrison's conspiracy conviction.

As to his money laundering conviction under 18 U.S.C. 1956(a)(1)(A)(i), Harrison argues that a wire transfer of $900 he received from Larry Williams in December 1997 had no relation to drug dealing or drug profits. That argument is belied by the evidence. Both Williams and Harrison were active participants in the drug conspiracy. Further, the government presented evidence that neither Williams nor Harrison had any legitimate source of income. "In proving that drug proceeds were used to promote illegal drug activity, the government need not trace the proceeds to a particular drug sale" and may instead rely on defendant's lack of any legitimate income source and involvement in drug trafficking to raise "the inference that the money wired . . . represented proceeds from drug distribution." See United States v. Eastman, 149 F.3d 802, 804 (8th Cir. 1998) (quoting United States v. Blackman, 904 F.2d 1250, 1257 (8th Cir. 1990)). Although Harrison argues that the wire transfer represented money for funeral expenses and not the proceeds of drug dealing, the only mention of funeral expenses at trial was that a separate transfer occurred in November 1997, arranged by Andrews and Van Noort on Harrison's behalf.

III. SENTENCING AND APPRENDI

Defendants argue that they are entitled to resentencing under Apprendi, in that both the indictment and the jury's verdict failed to specify any drug quantities. ¹ In Apprendi, the Supreme Court held that any fact, other than a prior conviction, that "increases the penalty for a crime beyond the prescribed statutory maximum" must be included in the indictment and proven to the jury beyond a reasonable doubt. 120 S. Ct. at 2362-63.

This principle governs penalties for drug offenses listed in 21 U.S.C. 841(a). United States v. Aguayo-Delgado, 220 F.3d 926, 930, 934 (8th Cir.), cert. denied, 121 S. Ct. 600 (2000). If an indictment or jury verdict fails to specify the quantity of drugs involved, sentencing is limited by 21 U.S.C. 841(b)(1)(C), which provides a statutory maximum penalty of twenty years or, if the defendant has a prior felony drug conviction, thirty years. Id. at 930. Nevertheless, the sentence imposed in Aguayo- Delgado did not exceed the statutorily authorized range and, therefore, did not violate Apprendi. Id.

In the present case, the indictments failed to specify any drug quantity, nor did the jury find the defendants responsible for any particular quantity. Consequently, we must apply section 841(b)(1)(C) to determine whether any defendant's sentence exceeded the applicable statutory maximum. Id.; United States v. Nicholson, 231 F.3d 445, 453 (8th Cir. 2000).

We easily dispense with the Apprendi challenges of defendants Bradford and Boswell. As both had prior felony drug convictions, their sentences of twenty-eight and thirty years, respectively, fall within the statutory maximum. Therefore, neither sentence warrants redetermination. Aguayo-Delgado, 220 F.3d at 934.

In contrast, the sentences imposed on defendants Harrison and Andrews exceeded the statutory maximum. The district court imposed sentences of thirty-two years on Harrison and thirty-three years on Andrews. The record is unclear as to whether either had a prior felony drug conviction, and at this stage we will presume they did not-a presumption that may be rectified on resentencing if incorrect. Given the current state of the record, the statutory maximum for each sentence is twenty years. ² 21 U.S.C. 841(b)(1)(C); Nicholson, 231 F.3d at 453.

The government argues that the sentences of Harrison and Andrews are proper because they were, or could have been, imposed according to the "career offender" provision of the Sentencing Guidelines. U.S. Sentencing Guidelines Manual [hereinafter U.S.S.G.] 4B1.1 (2000). However, career offender sentences depend not only on the defendants' criminal histories, but also on the calculation of drug quantities. Compare id. (basing career offender offense level on comparison to relevant statutory maximum) with U.S.S.G. 2D1.1(3) (establishing offense level based on drug quantity), 21 U.S.C. 841(b)(1)(A) (setting statutory penalty when specific drug quantity involved), and 21 U.S.C....