U.S. v. Hawkins

• Decision Date: 04 December 2008
• Docket Number: No. 08-1310.,08-1310.
• Parties: UNITED STATES of America, Appellee, v. Cedric Jarreau HAWKINS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

548 F.3d 1143

UNITED STATES of America, Appellee, v. Cedric Jarreau HAWKINS, Appellant.

No. 08-1310.

United States Court of Appeals, Eighth Circuit.

Submitted: September 22, 2008.

Filed: December 4, 2008.

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

Daniel C. Tvedt, AUSA, argued, Cedar Rapids, IA, for appellee.

Before RILEY, HANSEN, and MELLOY, Circuit Judges.

HANSEN, Circuit Judge.

Cedric Jarreau Hawkins was convicted on one count of distribution of cocaine base (crack cocaine) within 1000 feet of a school after having been previously convicted of two felony drug offenses. He appeals his conviction and the mandatory life sentence imposed by the district court.¹ We affirm.

I.

At trial, the evidence showed that on August 10, 2006, a government cooperating witness, Tammy Seltrecht, telephoned Themous Hawkins (Themous) to buy crack cocaine from him. Themous, unable himself to meet her that day, suggested that she buy the crack from his cousin, Cedric Hawkins (Hawkins), the defendant. Themous told Hawkins to expect a call from Seltrecht. She called Hawkins as instructed, and he agreed to meet her outside an apartment building at 910 33rd Avenue in Marion, Iowa. Prior to the arranged meeting, a law enforcement search of Seltrecht and her vehicle produced no controlled substances. The officers then provided her with $350 for the purchase, placed a recording device in her purse, and kept her within their surveillance until she returned.

Seltrecht picked up Hawkins at the prearranged location. After he entered the car, she turned off of 33rd Avenue and drove south four blocks on 9th Street. She turned left on 29th Avenue for one block, turned left again, and headed back on 10th Street past the Linn-Mar High School. Again at 33rd Avenue, she returned Hawkins to the apartment building. Seltrecht testified that during this short drive, she handed Hawkins the money, he handed her the crack cocaine, and he received a telephone call from Themous on Seltrecht's cell phone. The recording of Seltrecht's meeting with Hawkins reveals that neither of them made reference to the crack transaction that occurred. Officers followed Seltrecht back to their office where she provided them with 5.4 grams of crack cocaine that she testified Hawkins had handed her in exchange for the money. A final search of Seltrecht and her vehicle produced no other controlled substances or money.

Hawkins was charged with one count of distributing cocaine base within 1000 feet of a school,² in violation of 21 U.S.C. §§ 841(a)(1), 84 1(b)(1)(B), and 860, after having been convicted of two or more felony drug offenses, 21 U.S.C. § 851. At trial, Hawkins' attorney attacked the credibility of the cooperating witness and objected to the Government's admission of two prior felony drug distribution convictions on his record. He further objected to the prosecutor's closing argument on grounds that the Government was arguing facts that were not in evidence. The district court overruled his objections, denied his motions for acquittal and for a new trial, and imposed a mandatory life sentence. Hawkins appeals.

II.

A. Rule 404(b) Evidence

We review the admission of Rule 404(b) evidence for an abuse of discretion. United States v. Anthony, 537 F.3d 863, 865 (8th Cir.), petition for cert. denied, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___, 2008 WL 4888498 (U.S. Nov. 6, 2008) (No. 08-7205). We construe Rule 404(b) broadly as a rule of inclusion, "and we will reverse only when such evidence clearly had no bearing on the case and was introduced solely to prove the defendant's propensity to commit criminal acts." Id. (internal marks omitted). Evidence of prior bad acts is admissible under Rule 404(b) to show proof of intent, knowledge, or motive, among other things, when the bad acts are relevant, "similar in kind and not overly remote in time" to the charged crime, sufficiently supported by evidence, and the potential prejudice of the bad acts evidence does not substantially outweigh its probative value. United States v. Gaddy, 532 F.3d 783, 789 (8th Cir.) (internal marks omitted), cert. denied, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___, 2008 WL 4580035 (U.S. Nov. 10, 2008) (No. 08-6755). Prior felony drug convictions are relevant to show intent and knowledge in a drug prosecution when a defendant makes a general denial defense, which necessarily places the defendant's state of mind at issue. Anthony, 537 F.3d at 865-66.

At trial, the Government was permitted, after a hearing, to introduce two prior felony drug distribution convictions. Both convictions were entered on July 12, 2000. Hawkins argues that these convictions were neither similar nor close in time to the crime charged because the convictions were entered over six years prior to the charged offense, and the one conviction involved a different drug, heroin. First, we note that "[a] prior offense need not involve the same illegal drug as the charged offense" in order to be relevant and similar. United States v. Cook, 454 F.3d 938, 941 (8th Cir.2006). Thus, it is of no consequence to this analysis that one of Hawkins' prior distribution convictions involved heroin rather than crack cocaine.

Second, Hawkins' prior convictions are not so remote as to be inadmissible. Hawkins cites Cook, a distribution prosecution in which we found no abuse of discretion in the exclusion of a six-year-old prior possession conviction. Id. We noted, however, that the possession conviction was not only six years remote but also "functionally dissimilar to the charged distribution offense." Id. In contrast, Hawkins' prior convictions, while six years remote, involved crimes of distribution similar to the current charge. We in fact confirmed in Cook that even an eight-year-old prior conviction can be relevant and not overly remote if it is similar to the crime charged. Id. at 942; see also Gaddy, 532 F.3d at 789 (holding prior convictions of four, ten and eleven years old were not so remote as to be inadmissible). We conclude that the probative value of Hawkins' prior six-year-old distribution convictions was not outweighed by a risk of unfair prejudice, see Gaddy, 532 F.3d at 789, and thus, the district court did not abuse its abundant discretion by admitting Hawkins' prior felony drug distribution convictions pursuant to Rule 404(b).

B. Prosecutor's Closing Argument

Hawkins argues that the district court erred by overruling his objection to the prosecutor's reference to evidence outside the record during the closing argument. "Prosecutorial remarks during closing argument can be grounds for reversing a defendant's conviction if they were improper and prejudicially affected the defendant's substantial rights so as to deprive [him] of a fair trial." United States v. Boesen, 541 F.3d 838, 845 (8th Cir.2008) (internal marks omitted). "A prosecutor must limit the closing argument to the evidence and the reasonable inferences that may be drawn from it." United States v. Eagle, 515 F.3d 794, 805 (8th Cir.2008). We evaluate comments in the context of the entire closing argument and the evidence introduced at trial. United States v. Gardner, 396 F.3d 987, 989 (8th Cir.), cert. denied, 546 U.S. 866, 126 S.Ct. 153, 163 L.Ed.2d 153 (2005).

Hawkins argues that it was prosecutorial misconduct for the prosecutor to refer to "Craig," the prosecutor's barber, during closing argument because this "evidence" was not in the record. In the closing argument, when the prosecutor was discussing the issue of credibility, he referenced his barber as a great guy someone who was hardworking and as "honest as the day is long." (Closing Arg. Tr. at 13.) He explained that while the Government would prefer to present a witness like Craig, citizens like Craig are not the type of people who have knowledge of drug trafficking activities. This reference was not improper. The key issue in the trial was whether the jury should believe the Government's cooperating witness. The defense had vigorously attacked her credibility by exposing her drug use and criminal background, and a special agent had acknowledged on cross-examination that the government utilizes people who have been involved in illegal activity.

The prosecutor's closing-argument reference to Craig was not an attempt to present evidence outside the record. Craig, the barber, merely represented the quintessential credible witness whom the prosecutor contrasted with the type of person who most often has knowledge of drug trafficking crimes. The prosecutor used Craig to illustrate why the jurors should not expect a witness involved in drug deals to have an impeccable background, and this illustration helped to shape the permissible inference that the cooperating witness in this case could be credible. The reference was neither inflammatory nor misleading, and we see no error in overruling this objection. See, e.g., United States v. Mullins, 446 F.3d 750, 759 (8th Cir.) (noting that comments likely to inflame bias are improper but that colorful language is permitted as long as it does not stray from the evidence and reasonable inferences from it), cert. denied, 549 U.S. 923, 127 S.Ct. 284, 166 L.Ed.2d 217 (2006); United States v. Walker, 613 F.2d 1349, 1355 (5th Cir.) (permitting the government to "illustrate[ ] graphically a permissible inference the jury could make from the testimony in evidence"), cert. denied, 446 U.S. 944, 100 S.Ct. 2172, 64 L.Ed.2d 800 (1980).

C. Motion for Judgment of Acquittal or New Trial

Hawkins argues that he was entitled to a judgment of acquittal or a new trial on the ground that the evidence as a whole was insufficient to sustain the verdict. We review the denial of a motion for judgment of acquittal de novo, viewing the evidence in the light most favorable to the verdict. United States v. Samuels, 543 F.3d 1013, 1019 (8th Cir.2008). The Government relied heavily on Seltrecht's testimony concerning the drug transaction. Hawkins argues that the evidence...