U.S. v. Smith

• Decision Date: 11 January 1995
• Docket Number: 94-1623 and 94-1751,93-4007,Nos. 93-3610,93-4006,94-1621,s. 93-3610
• Citation: 49 F.3d 362
• Parties: UNITED STATES of America, Appellee, v. Edward Jerico SMITH, also known as Rico Smith, Appellant. UNITED STATES of America, Appellee, v. Harold McMILLAN, Appellant. UNITED STATES of America, Appellee, v. Cassell Ali BOBO, also known as Louis Taylor, Appellant. UNITED STATES of America, Appellee, v. Courtney Bernard GARDNER, Appellant. UNITED STATES of America, Appellee, v. Donald Cornelius GARDNER, Appellant. UNITED STATES of America, Appellee, v. Dexter Darron CARR, also known as Darron Dexter Carr, also known as Dex, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 362

49 F.3d 362

UNITED STATES of America, Appellee, v. Edward Jerico SMITH, also known as Rico Smith, Appellant.

UNITED STATES of America, Appellee, v. Harold McMILLAN, Appellant.

UNITED STATES of America, Appellee, v. Cassell Ali BOBO, also known as Louis Taylor, Appellant.

UNITED STATES of America, Appellee, v. Courtney Bernard GARDNER, Appellant.

UNITED STATES of America, Appellee, v. Donald Cornelius GARDNER, Appellant.

UNITED STATES of America, Appellee, v. Dexter Darron CARR, also known as Darron Dexter Carr, also

known as Dex, Appellant.

Nos. 93-3610, 93-4006, 93-4007, 94-1621, 94-1623 and 94-1751.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 12, 1994.

Decided Jan. 11, 1995.

Barry Voss, Minneapolis, MN, argued for appellant Edward Jerico Smith in No. 93-3610MN.

Michael William McNabb, Burnsville, MN, argued for appellant Harold McMillan in No. 93-4006MN.

Carol Grant, Minneapolis, MN, argued (Marc G. Kurzman, on the brief), for appellant Cassell Ali Bobo in No. 93-4007MN.

John G. Dillon, Minneapolis, MN, argued for appellant Courtney Bernard Gardner in No. 94-1621MN.

Joel C. Golden, Minneapolis, MN, argued for appellant Donald Cornelius Gardner in No. 94-1623MN.

Faison T. Sessoms, Minneapolis, MN, argued for appellant Dexter Darron Carr in No. 94-1751MN.

Denise Ducharme Reilly, Asst. U.S. Atty., Minneapolis, MN, argued for appellee.

Before WOLLMAN, Circuit Judge, HEANEY, Senior Circuit Judge, and HANSEN, Circuit Judge.

WOLLMAN, Circuit Judge.

Defendants appeal from their various drug, money laundering and drug conspiracy, and firearm convictions, asserting numerous errors. We affirm as to all defendants except Cassell Bobo and Harold McMillan, with respect to whom we reverse and remand for resentencing in accordance with this opinion.

I.

In June 1992 a federal grand jury returned an indictment charging Cassell Bobo with three counts of drug distribution and one count of conspiracy to distribute drugs. On August 20, 1992, the grand jury returned a superseding indictment alleging 22 counts of drug related offenses, implicating eighteen defendants, including Bobo. The six defendants who now appeal were tried jointly and were found guilty on February 19, 1993.

All the defendants were convicted of conspiracy to distribute and to possess with intent to distribute cocaine and cocaine base in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(A) and 21 U.S.C. Sec. 846. Three of the defendants were found guilty of additional charges related to the conspiracy. Dexter Darron Carr was found guilty of being a felon in possession of a firearm in violation of 18 U.S.C. Secs. 922(g)(1) and 924(a)(2), and one count each of knowing and intentional distribution of cocaine and cocaine base in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(B). McMillan was convicted of aiding and abetting the distribution of cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. Bobo was convicted of conspiracy to launder money in violation of 18 U.S.C. Secs. 1956(a)(1)(B)(i), 1956(a)(1)(A), and 371; one count each of aiding and abetting the distribution of cocaine and cocaine base in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2; and two counts of distribution of cocaine base in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(B).

The following facts were established at trial. In the mid-1980s, while a number of the defendants were still in high school and junior high school, Morris Botiz ¹ began selling cocaine in Minnesota with the aid of numerous drug couriers. McMillan helped Botiz and Derrick Edmund rent an apartment and get established in Minnesota and was involved throughout the duration of the conspiracy. The remainder of the defendants in this proceeding began dealing with the Botiz faction sometime in the late 1980s or early 1990s. Bobo and Travis Granger operated a store on Lake Street in Minneapolis called Today's Fashion & Music. Wiretap and video surveillance evidence and drug notes discovered during garbage searches at Today's Fashion & Music revealed that much of the drug related activity was coordinated from this store. Searches of the various defendants' apartments also yielded numerous triple-beam scales that are used for weighing out drugs, drug notes, pagers and cellular phone bills, and photographs showing the defendants' association with one another. Defendants Donald Cornelius Gardner, Courtney Bernard Gardner, and Carr were involved in the trafficking and distribution of cocaine and cocaine base throughout 1992 when Bobo's store was wiretapped. Defendant Edward Jerico Smith's involvement in the conspiracy with Bobo ran through much of 1991. We address each defendant's asserted errors in turn.

II.

A. Donald Cornelius Gardner

Donald Gardner was sentenced to a term of 128 months for his role in the conspiracy. He asserts on appeal that the district court violated his Sixth Amendment right to confrontation by unduly restricting the scope of his cross-examination of government witness James Page. Donald Gardner also contends that the evidence was insufficient to support his conviction and that the district court erred in its determination of the amount of drugs attributable to him.

Although it is true that counsel cannot expect a co-defendant's attorney to protect his client's rights, the district court did not abuse its discretion in disallowing duplicative cross-examination by Donald Gardner's attorney. See United States v. Wilson, 787 F.2d 375, 386-87 (8th Cir.) (abuse of discretion determined by "focus[ing] on the nexus between the information sought and the purpose of the cross-examination, the relevancy of the information, and the availability of other opportunities to elicit the information"), cert. denied, 479 U.S. 857, 107 S.Ct. 197, 93 L.Ed.2d 129, and cert. denied, 479 U.S. 865, 107 S.Ct. 223, 93 L.Ed.2d 151 (1986). Having reviewed the transcript, we find that Donald Gardner's right to confrontation was adequately protected by the testimony elicited. The court allowed the attorneys for Donald and Courtney Gardner to pose numerous questions about Page's status as a career offender, the penalties he faced and his plea agreement, his possible further reduction in sentence based on his testimony, and his desire to get out of jail as soon as possible. The district court's refusal to allow more of the same did not deny defense counsel the opportunity to expose facts from which the jury "could appropriately draw inferences relating to the reliability of the witness." Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347 (1974); see United States v. Campbell, 845 F.2d 782, 787-88 (8th Cir.), cert. denied, 488 U.S. 965, 109 S.Ct. 490, 102 L.Ed.2d 527 (1988).

"When considering a sufficiency-of-the-evidence claim, we view the evidence in the light most favorable to the government, giving it the benefit of all favorable inferences." United States v. Maxwell, 25 F.3d 1389, 1395 (8th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 610, 130 L.Ed.2d 519 (1994); see United States v. Karam, 37 F.3d 1280, 1287 (8th Cir.1994); United States v. Lucht, 18 F.3d 541, 552 (8th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 363, 130 L.Ed.2d 316 (1994). "Once a conspiracy is established, even slight evidence connecting a defendant to the conspiracy may be sufficient to prove the defendant's involvement." United States v. Ivey, 915 F.2d 380, 384 (8th Cir.1990). Reversal is appropriate only if "we conclude that a reasonable fact finder could not have found the defendant[ ] guilty beyond a reasonable doubt." United States v. Quintanilla, 25 F.3d 694, 699 (8th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 457, 130 L.Ed.2d 365 (1994).

Having reviewed the record, we conclude that a reasonable jury could have found beyond a reasonable doubt that a conspiracy existed and that Donald Gardner "knowingly became a part of the conspiracy." United States v. Rogers, 982 F.2d 1241, 1244 (8th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 3017, 125 L.Ed.2d 706 (1993). Page's testimony, the substantial wiretap evidence of Donald Gardner's drug-related conversations with Bobo and others, and the conversations of others implicating Donald Gardner show that Donald Gardner was undoubtedly aware of and involved in the drug conspiracy.

A district court's determination of drug quantity is reviewed for clear error. Karam, 37 F.3d at 1286; Maxwell, 25 F.3d at 1397; United States v. Cassidy, 6 F.3d 554, 557 (8th Cir.1993). We find no such error in the district court's attributing Donald Gardner with the sale of two ounces of crack to Page, despite Gardner's assertion that "the crack was given to Page by another individual," because Page testified that Gardner located the source and was present at the time of the transaction. See U.S.S.G. Sec. 1B1.3(a)(1)(A) (relevant conduct includes aiding and abetting). Nor did the district court clearly err in attributing a kilogram of cocaine powder to Donald Gardner based on money the evidence showed he transferred to Bobo and on Carr's testimony at the evidentiary hearing. The district court properly held Donald Gardner responsible for the drug amounts involved in the conspiracy that were either known to him or reasonably foreseeable by him. U.S.S.G. Sec. 1B1.3(a)(1)(B); Karam, 37 F.3d at 1289.

B. Dexter Darron Carr

Carr was convicted of conspiracy to distribute and to possess with intent to distribute more than five kilograms of cocaine and cocaine base, distribution of cocaine and cocaine base, and of being a felon in possession of a firearm. He was sentenced to a term of 145 months. He assigns as error the district court's determination that he was responsible for more than five kilograms of powder cocaine. Carr contends that the evidence shows his responsibility for only 12.07 grams of crack, which would give him a base offense level of 26, rather than the level 32 assigned by the district court.

The evidence...