U.S. v. Samuels

Citation543 F.3d 1013
Decision Date09 October 2008
Docket NumberNo. 07-3675.,07-3675.
PartiesUNITED STATES of America, Appellee, v. Terry Terrell SAMUELS, also known as T.G., Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

John Broz, argued, Oakdale, IA, for appellant.

Patrick Reinert, AUSA, argued, Daniel C. Tvedt, AUSA, on the brief, Cedar Rapids, IA, for appellee.

Before SMITH, BOWMAN, and GRUENDER, Circuit Judges.

BOWMAN, Circuit Judge.

Terry Terrell Samuels was convicted after a jury trial on both counts of a two-count indictment charging him with distribution of cocaine base (crack cocaine) within 1000 feet of an elementary school, 21 U.S.C. §§ 841(a)(1), 860(a). The District Court1 sentenced him to a statutory life term of imprisonment, id. § 841(b)(1)(A). He appeals his convictions and his sentence. We affirm.

We relate the facts in the light most favorable to the jury's finding of guilt. United States v. Davis, 260 F.3d 965, 967 (8th Cir.2001), cert. denied, 534 U.S. 1107, 122 S.Ct. 909, 151 L.Ed.2d 876 (2002). In early 2006, Travis Rogers had been contacting Samuels, also known to Rogers as "T.G.," about three times a week to purchase crack cocaine. About seventy-five percent of the time, someone other than Samuels would show up to actually make the exchange of drugs for cash. In March of 2006, Rogers became a confidential informant (CI) and worked with law enforcement to set up controlled buys of cocaine base from Samuels. On March 24, 2006, Rogers purchased 20.24 grams of cocaine base from Samuels for $750. The transaction took place in the entryway of Rogers's apartment building in Dubuque, Iowa, which was within 1000 feet of Prescott Elementary School. Samuels arrived at Rogers's apartment building alone in a white Dodge Charger. On March 28, 2006, Samuels again drove to Rogers's apartment building in a white Charger, but sent an unidentified male into the building to exchange 19.35 grams of cocaine base for $750. On both occasions, Rogers wore a wire and law enforcement recorded the transactions. Shortly before each controlled buy, Rogers called Samuels at the same telephone number; those calls were recorded by law enforcement as well. And immediately before Samuels arrived for the March 28 transaction, Samuels called Rogers. The wire that Rogers was wearing recorded Rogers's side of the conversation but not Samuels's. Both of the controlled buys were also observed by law enforcement officers, although the officers could not see into the apartment building. These sales are the basis for Samuels's convictions on the two counts of distribution.

For his first issue on appeal, Samuels contends that the District Court erred in denying his pretrial ex parte request for authorization to pay a voice comparison expert more than the maximum allowed by statute. See 18 U.S.C. § 3006A(e). The expert would have compared Samuels's voice with the voice of the person who gave Rogers the cocaine base in exchange for cash on March 28 and then would have made a judgment as to whether it was in fact Samuels's voice on the recording made by law enforcement.2 After a hearing, the court determined that Samuels had not met his burden to show the court both that the expert's analysis was "necessary to an adequate defense" and that Samuels's trial would be unfair if the employment of his expert was not approved. United States v. Mentzos, 462 F.3d 830, 839 (8th Cir.2006), cert. denied, ___ U.S. ___, 127 S.Ct. 2079, 167 L.Ed.2d 799 (2007). The court said that the voice analysis was unnecessary because there were other methods available to Samuels to show that he was not the speaker on the tape, for example, the testimony of someone who knew him and his voice. See United States v. Thurmon, 413 F.3d 752, 756 (8th Cir.), cert. denied, 546 U.S. 1069, 126 S.Ct. 816, 163 L.Ed.2d 642 (2005). The court also doubted that a voice comparison analysis would result in admissible evidence. On appeal, we will reverse only if we decide that the court abused its discretion, and we can make such a determination only if Samuels shows that he was prejudiced by the denial of his request. See Mentzos, 462 F.3d at 840.

We do not address the admissibility of any evidence that may have resulted from the proposed expert's analysis because we conclude that the District Court did not err in determining that Samuels failed to show that a voice analysis of the March 28 wire recording of the controlled buy was necessary for his defense. As the court noted, there were other methods to show that Samuels's was not the voice on the recording. Moreover, the recordings of both transactions were played for the jurors during trial, and they could judge for themselves if the voices were the same. In any event, with the benefit of hindsight, we can say with confidence that Samuels was not prejudiced by the absence of an expert's voice-comparison opinion. When Rogers was called as a witness at trial, he apparently changed his expected testimony and said that although he had spoken to Samuels twice by telephone just before the March 28 sale, Samuels sent another individual into Rogers's apartment building to turn over the crack and collect the cash (as he had in the past, before Rogers became a CI). Rogers—the only eyewitness to the actual exchange of money for drugs as it was being recorded (besides the person who took the cash and gave Rogers the crack)—testified that the voice on the March 28 recording of the controlled buy did not belong to Samuels. Given that testimony, "the facts do not reasonably suggest" that it was Samuels's voice on the wire recording, so the jury did not need the opinion of an expert that it was not Samuels's voice. Thurmon, 413 F.3d at 756. Samuels makes much of the fact that Rogers's exculpatory trial testimony on this point had changed from Rogers's previous inculpatory sworn statements (that Samuels himself had handed Rogers the crack cocaine on March 28), but that does not make an expert opinion that the voice was not Samuels's necessary to his defense. We hold that the District Court did not abuse its discretion in denying Samuels's request to authorize funds to pay an expert more than the maximum allowed by statute.

Samuels next argues that the District Court abused its discretion when it denied portions of his motion in limine. See United States v. Benitez, 531 F.3d 711, 716 (8th Cir.2008) (standard of review). The court granted the motion in part but denied it as to the testimony of two cooperating witnesses, Rogers and Donald Harris, and as to evidence of the fact of Samuels's 1998 Illinois state-court conviction for delivery of marijuana. Samuels argues that allowing this evidence at trial violated the dictates of Rules 403 and 404(b) of the Federal Rules of Evidence. Under Rule 403, relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." Likewise, evidence of other crimes or acts will not be admissible under Rule 404(b) "to prove the character of a person in order to show action in conformity therewith." But "Rule 404(b) is a rule of inclusion rather than exclusion, rendering admissible evidence of other crimes relevant to any issue at trial other than an accused's criminal disposition." Benitez, 531 F.3d at 716. The Rule allows the admission of evidence of other crimes or acts to prove intent, knowledge, and identity, all of which are relevant here, where Samuels denied that he was the person who sold Rogers the cocaine base.

As for the testimony of the cooperating witnesses, Samuels contends that the "sheer volume" of drug deals testified to by Rogers and Harris "invited" the jury to use that testimony to determine that Samuels was guilty of the similar conduct with which he was actually charged. Br. of Appellant at 28. But as the District Court pointed out, Rogers was the CI for the charges for which Samuels was on trial, and his testimony about the crack cocaine deals he had done with Samuels in the weeks leading up to March 2006 was highly relevant to show Samuels's intent, knowledge, and identity and was not unfairly prejudicial. And Harris testified to conducting crack deals with Samuels that followed the pattern Rogers described in his testimony. In early 2006, before the controlled buys with Rogers, Samuels delivered crack cocaine to Harris's residence, occasionally sending someone else to make the actual cash-for-crack exchange. This was relevant and highly probative evidence, again of Samuels's intent, knowledge, and identity, and was not unfairly prejudicial. While both Rogers and Harris testified to a number of drug deals with Samuels, all of the deals occurred during a limited time frame close in time to the controlled buys, and both witnesses described transactions that took place in a manner strikingly similar to that of the crimes charged.

Samuels also argues that evidence of his state-court marijuana conviction should not have been admitted. According to Samuels, the January 1998 conviction for delivery of marijuana in December 1996 was so remote in time from the March 2006 charged conduct that it was not relevant, lacked probative value, and constituted excludable other-crimes evidence. Although the 1998 delivery conviction was for a crime that occurred over nine years before the conduct charged in the indictment, that crime was functionally similar to the charged conduct and was relevant to show Samuels's intent, knowledge, and identity for the two counts of conviction. Cf. United States v. Cook, 454 F.3d 938, 941 (8th Cir.2006). The illegal substance was not the same, but that is of no consequence. See id.; see also Benitez, 531 F.3d at 716. Moreover, the government proposed to prove only the fact of conviction, either by confronting Samuels, if he testified, or by offering a certified copy of the conviction.3 Both of these are straightforward methods of proof that are less prejudicial than, for example, police reports (which...

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