U.S. v. Wells

• Decision Date: 17 October 2003
• Docket Number: No. 02-2233.,02-2233.
• Citation: 347 F.3d 280
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Damien WELLS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

347 F.3d 280

UNITED STATES of America, Plaintiff-Appellee, v. Damien WELLS, Defendant-Appellant.

No. 02-2233.

United States Court of Appeals, Eighth Circuit.

Submitted: January 14, 2003.

Filed: October 17, 2003.

Order Denying Petition for Rehearing and for Rehearing En Banc January 30, 2004.

The petitions for rehearing en banc are denied. The petitions for rehearing by the panel are also denied.

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Counsel who presented argument on behalf of the appellant was George B. Achola of Omaha, NE.

Counsel who presented argument on behalf of the appellee was Nancy A. Svoboda, AUSA, of Omaha, NE.

Before BOWMAN, RICHARD S. ARNOLD, and BYE, Circuit Judges.

BYE, Circuit Judge.

Damion¹ Wells appeals his conviction for possession of crack cocaine with intent to distribute in violation of 21 U.S.C. § 841. He does so making four arguments, none of which are compelling. We therefore affirm the decision of the district court.²

I

On February 16, 2001, the Bureau of Alcohol, Tobacco and Firearms (ATF) and the Omaha City Police Department undertook a joint investigation on a tip. A confidential informant revealed he had purchased crack cocaine from someone he knew as "Fat Boy," described as a portly African-American.

The informant explained that, to purchase crack cocaine, he contacted "Fat Boy" by calling a pager number. He would leave his phone number followed by the dollar amount of crack cocaine he wanted to purchase. For example, to buy one-half ounce, which sold for $500.00, the informant would leave his number followed by "500."

Law enforcement subpoenaed the subscriber information for "Fat Boy's" pager. The information revealed "Fat Boy" was Wells and listed 2022 North 40th Street in Omaha as his residence. Acting on this information, law enforcement officers reviewed Douglas County records and learned that Wells had a criminal history consisting of two felony convictions for crack possession and one for robbery and that Wells's registration of his Buick LeSabre listed the 40th Street address as his residence. Moreover, a photograph of Wells, found in the police file, was shown to the informant, who confirmed Wells was the man he knew as "Fat Boy."

On April 13, 2001, investigators met with the informant who, at their request, called Wells's pager and left his number and a coded order to purchase one-half ounce of crack cocaine. Wells called back from a residential phone line at 3643 Charles Street. The informant told Wells he wanted to meet in forty-five minutes. Wells responded the informant should call back when ready.

Surveillance teams were deployed to both 3643 Charles Street and 2022 North 40th Street. Wells left the former and drove his Buick LeSabre to and entered the latter. The informant then again paged Wells, and Wells called back. The two agreed upon a meeting time and place. Wells was then observed leaving his front door, disappearing into the back yard, and returning to the Buick. He was followed by investigators as he drove to the arranged meeting place.

There, Wells and the informant pulled their vehicles next to each other and then drove to a second location. Once at this location, the informant got into Wells's vehicle and allegedly purchased one-half ounce of crack cocaine from him. Wells then returned to the Charles Street residence.

On April 18, 2001, law enforcement again established surveillance on both residences. The informant, at the request of law enforcement, again paged Wells and left a coded request to purchase one ounce of crack cocaine. The sale was allegedly consummated in a similar manner as on the 13th. Wells was observed driving from the Charles Street address to the North 40th Street residence, where he again went behind the house and out of sight before driving to the meeting place to make the alleged delivery.

Law enforcement submitted an affidavit and applications for two search warrants on April 20, 2001. The first warrant requested permission to search 2022 North 40th Street, the Buick, and Wells himself. The second warrant requested permission to search the Charles Street residence. Both warrants were granted by a Douglas County judge.

Warrants in hand, law enforcement once more pressed the informant into service. The informant paged Wells and was directed to leave a coded request to purchase two ounces of crack cocaine, which sold for $1,600.00. Wells returned the call and apparently told the informant he would call back shortly. Wells, who was wearing a red ball cap and red shirt, was then observed leaving the Charles Street residence where he had taken the informant's call and driving to the North 40th Street residence where he was paged a second time by the informant. Wells answered this page and again told the informant he would call back, which he did after just a few minutes. The two arranged to meet in a certain Walgreens's parking lot, but first Wells returned to the Charles street address.

Investigators decided not to travel with the informant to the Walgreens until they received confirmation from the surveillance team that Wells was en route. The surveillance team at the Charles street address watched a blue-green Grand Am drive away from the residence, while the Buick remained in the driveway. Officers were dispatched to the area near the Walgreens and spotted the Grand Am. Suspecting Wells was within, they stopped it.

Wells was indeed in the vehicle. The officers arrested him, searched the vehicle's passenger compartment, and discovered two ounces of crack cocaine. Subsequently, the search warrants were executed on the two residences. A handgun was discovered at the Charles Street address. A storage unit behind the North 40th Street residence was unlocked with a key taken from Wells, and 1.5 ounces of crack cocaine were discovered.

Wells was charged with three counts of possession of cocaine base (crack) with intent to distribute in violation of 21 U.S.C. § 841 for his conduct on April 13, 18 and 20, respectively. Additionally, he was charged with one count of conspiracy to distribute cocaine base in violation of 21 U.S.C. § 846.

The matter went to trial, but the confidential informant refused to testify and was held in civil contempt. A jury acquitted Wells of the conspiracy charge and the two possession counts stemming from his conduct on April 13 and 18. The third possession charge, stemming from his conduct on April 20, resulted in a hung jury, and the district court ultimately declared a mistrial on that count.

At a second trial, Wells was convicted of possession of cocaine base with intent to distribute in violation of 21 U.S.C. § 841 for his conduct on April 20, and he was sentenced to a term of 240 months in prison. He appeals.

II

Because he was acquitted of the two possession counts stemming from his conduct on April 13 and 18, Wells contends the government violated the Double Jeopardy Clause at the second trial by introducing evidence regarding the events of those dates. Reviewing this claim de novo, United States v. Jones, 266 F.3d 804, 813 (8th Cir.2001), we disagree.

In Prince v. A.L. Lockhart, we explained:

The Double Jeopardy Clause incorporates the doctrine of collateral estoppel. The collateral estoppel doctrine provides that "when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." [Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970)]. A fact previously determined in a criminal case is not an "ultimate fact" unless it was necessarily determined by the jury against the government and, in the second prosecution, that same fact is required to be proved beyond a reasonable doubt in order to convict. See [Dowling v. United States, 493 U.S. 342, 349-52, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990)].

971 F.2d 118, 123 (8th Cir.1992).

Wells's prior acquittal did not determine an ultimate fact in the present case. Whether Wells possessed cocaine base with intent to distribute on April 13 and 18 need not be answered in the present case. The government was not required to show beyond a reasonable doubt that Wells possessed drugs on either of those dates in order to convict him of possession of cocaine base with the intent to distribute on April 20. Therefore, the government's introduction of testimony regarding April 13 and 18 was not collaterally estopped due to the Double Jeopardy Clause.

III

In the alternative, Wells argues that, if this testimony was admissible pursuant to Federal Rule of Evidence 404(b), then the district court should have instructed the jury that he had been acquitted of the prior two counts stemming from the conduct testified to. We disagree.

Wells moved for a limiting jury instruction, and the district court denied the motion. We therefore review the district court's decision for abuse of discretion. Jones, 266 F.3d at 814.

As we explained in Prince v. A.L. Lockhart:

The general rule is that although a judgment of acquittal is relevant with respect to the issues of double jeopardy and collateral estoppel, "once it is determined that these pleas in bar have been rejected, a judgment of acquittal is not usually admissible to rebut inferences that may be drawn from the evidence that was admitted."

971 F.2d at 122 (quoting United States v. Kerley, 643 F.2d 299, 300 (5th Cir.1981)).

There are two primary reasons why a judgment of acquittal is not generally admissible to rebut inferences that may be drawn from evidence that was the basis of a previous trial. First, judgments of acquittal are hearsay. Second, judgments of acquittal are not generally relevant, because they do not prove innocence; they simply show that the government did not meet its burden of proving guilt beyond a reasonable doubt.

Id. (citations omitted).

The fact the government was unable to prove Wells possessed crack with the intent to distribute on April...