U.S. v. Donnell

• Citation: 596 F.3d 913
• Decision Date: 04 March 2010
• Docket Number: No. 09-1580.,No. 08-2543.,No. 08-3539.,No. 08-3102.,08-2543.,08-3102.,08-3539.,09-1580.
• Parties: UNITED STATES of America, Appellee, v. Raphael L. DONNELL, Appellant. United States of America, Appellee, v. Dempsey Johnson, Appellant. United States of America, Appellee, v. Boun Rattanavong, Appellant. United States of America, Appellee, v. Dung A. Nguyen, also known as Johnny Tran, also known as Johnny Boy, also known as Johnny Playboy, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

596 F.3d 913

UNITED STATES of America, Appellee, v. Raphael L. DONNELL, Appellant.

United States of America, Appellee, v. Dempsey Johnson, Appellant.

United States of America, Appellee, v. Boun Rattanavong, Appellant.

United States of America, Appellee, v. Dung A. Nguyen, also known as Johnny Tran, also known as Johnny Boy, also known as Johnny Playboy, Appellant.

No. 08-2543.

No. 08-3102.

No. 08-3539.

No. 09-1580.

United States Court of Appeals, Eighth Circuit.

Submitted: November 17, 2009.

Filed: March 4, 2010.

Willie J. Epps Jr., Shook, Hardy & Bacon LLP, Kansas City, MO, argued, for appellee Raphael L. Donnell.

Raphael L. Donnell, Lewisburg, PA, pro se.

Willis L. Toney, Kansas City, MO, argued, for appellant Dempsey Johnson.

Susan M. Hunt, Kansas City, Mo, argued, for appellant Boun Rattanavong.

David L. Simpson, St. James, MO, argued, for appellant Dung A. Nguyen.

Dung A. Nguyen, Beaumont, TX, pro se.

David DeTar Newbert, Asst. U.S. Atty., Kansas City, MO, argued (Matt J. Whitworth, Acting U.S. Atty., on the brief), for appellee.

Before MELLOY, BEAM and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

This case arises out of an investigation into the distribution of methylenedioxymethamphetamine (ecstasy) and other illegal drugs in Kansas City, Missouri. A fourth superseding indictment charged twenty-eight defendants with conspiracy to distribute and distribution of ecstasy and other drugs. Twenty-three of the defendants pled guilty. Four defendants, Raphael Donnell, Dempsey Johnson, Dung Nguyen and Boun Rattanavong, went to trial on the conspiracy to distribute count, the sole charge against them.¹ A jury found each guilty of conspiracy, and the defendants now appeal. Each alleges different errors in the district court's² trial and post-trial rulings. Their appeals were consolidated, and for the following reasons, we affirm.

I. BACKGROUND

The investigation leading to this case began with a series of small, street-level purchases of ecstasy and crack cocaine by an undercover Kansas City police detective, Mark Corbin. Over the course of the investigation, law enforcement officers worked their way up the supply chain, identifying new individuals in the distribution conspiracy. Eventually, all twenty-eight individuals identified in the indictment were charged as members of a single conspiracy to distribute ecstasy, crack cocaine, phencyclidine (PCP) and cocaine. The indictment also included distribution charges against several defendants, along with a criminal forfeiture count against all defendants.

Derrick Seals headed the Kansas City drug operation. Street-level dealers obtained ecstasy and other drugs from Seals's "inner circle" of co-conspirators. Dempsey Johnson bought and sold ecstasy with members of Seals's inner circle and distributed it to street-level dealers. The Government identified Raphael Donnell as a low-level ecstasy dealer for Seals and as an enforcer in Seals's organization. Seals's supplier for the ecstasy he distributed in Kansas City was Vu Nguyen Huynh ("Vu"), who pled guilty and testified for the Government at trial. Vu identified Dung Nguyen and Boun Rattanavong, along with two others, as the suppliers of the ecstasy pills he sold to Seals and others. Thus, the supply chain led from Nguyen and Rattanavong, through Vu, to Seals, and then on to Seals's inner circle and street-level dealers, such as Johnson and Donnell, who eventually sold ecstasy to end users.

Over the course of the seven-day trial, the Government presented evidence about the overall structure of the conspiracy and more specific evidence describing each appellant's role in it. We summarize the evidence with respect to each appellant below.

Raphael Donnell: To link Donnell to the conspiracy, the Government offered evidence that Donnell was a low-level dealer of ecstasy pills and an enforcer for Seals. Jason Cross testified that he was part of Seals's inner circle and that he distributed ecstasy pills for Seals to lower-level dealers, including Donnell. Cross testified that he sold ecstasy pills to Donnell on seven occasions, usually selling between twenty and seventy pills on each occasion, but at times as many as 175 pills. Andre Brice, another co-conspirator who had pled guilty, similarly testified that he sold Donnell pills on several occasions, usually selling between twenty-five and fifty pills each time. The Government also introduced photographs of ecstasy pills recovered during a traffic stop of Donnell. Vu testified that these pills were the same flavors³ as the pills Vu sold to Seals.

Delesha Hughes, who also had pled guilty, corroborated Brice's testimony about his selling ecstasy to Donnell. Brice testified that Hughes was present during some of his sales to Donnell. Hughes testified that she indeed witnessed multiple occasions when Donnell bought ecstasy pills from Brice and that Donnell usually bought between fifteen and fifty pills each time. Hughes also observed Donnell sell ecstasy pills to others. Additionally, Hughes testified about a handwritten note she received from Donnell after they had been arrested, which the Government introduced into evidence. The note listed various conspirators and described their roles in the operation. With respect to Donnell, the note reads:

Raphael Donnell: a friend of Dee's [Derrick Seals], dee call him Big Bro at times, supposed to be a killer from Kansas .... dee said he would kill for dee cause dee would always help him on lawyers, bills. dee called him a small time hustler cause he didn't sell drugs[;] he stayed in ... and was into white collar crimes, but was always shooting somebody, dee would take him to club and take him with hi[m] cause a lot of people feared rags [Donnell] and dee felt more protected because of his rep.

The Government's theory was that this section of the note was Donnell's attempt to coach Hughes on what to say in order to exonerate him; that is, if Hughes stated that Donnell did not sell drugs, Donnell could escape the drug-distribution conspiracy charge.

The jury also heard recordings of several wiretapped phone calls between Donnell and Seals. Donnell and Seals discussed various firearms, and during one such conversation Donnell remarked that "[i]t is too serious" for them to be "out here naked." The recordings also captured Seals describing a missing firearm and his suspicion that his landlord had taken it. Seals said, "we going to put him to sleep" for taking the firearm, though Donnell suggested that perhaps the "Feds" took it.

Finally, the Government introduced Donnell's 2002 conviction for possession of marijuana under Federal Rule of Evidence 404(b). This conviction resulted from an incident where police found Donnell alone in a house where they also found crack cocaine, PCP, marijuana, and several loaded firearms.

Dempsey Johnson: The Government's evidence against Dempsey Johnson was similar to the evidence against Donnell. Jeffrey Morgan, a low-level dealer who made several crack cocaine and ecstasy sales to Detective Corbin and who had pled guilty, testified that he received those drugs from Johnson. Nicole Wyatt, who had also pled guilty, testified that she too bought crack cocaine from Johnson. Brice testified that he sold ecstasy pills to Johnson on several occasions, usually selling between 50 and 150 pills at a time.

The Government also introduced evidence concerning two prior arrests of Johnson. During an October 20, 1999 arrest, officers found what they described as crack cocaine in Johnson's possession. In 2000, Johnson was arrested for possession of marijuana and cocaine. Officers testified that the 2000 arrest occurred after they saw Johnson drop a package, the contents of which field-tested positive for cocaine. However, Johnson was neither charged nor convicted as a result of either arrest.

Dung Nguyen: Unlike the evidence against Donnell and Johnson, which focused on Derrick Seals's inner circle that was operating in Kansas City, the evidence against Nguyen focused on Vu's description of his ecstasy supply sources in Dallas, Texas. Vu, who supplied ecstasy pills to Seals, identified four main sources of these pills, including Nguyen. Vu testified that he met Nguyen on several occasions and bought between 2,000 and 20,000 ecstasy pills each time. Amr Elghussain, a friend of Vu's, confirmed that he had introduced Nguyen and Vu and that Nguyen was one of Vu's suppliers.

Boun Rattanavong: Vu testified that Rattanavong was another one of his Texas ecstasy suppliers. Vu said he initially purchased between 3,000 and 5,000 ecstasy pills at a time from Rattanavong. However, these quantities grew over time, to the point where Vu eventually was buying 30,000 pills at a time from Rattanavong. Vu identified particular flavors of pills recovered from Kansas City as the same flavors he bought from Rattanavong.

The Government also introduced evidence from a traffic stop of Rattanavong. During the stop, an officer discovered $40,400 in bundled currency, disguised as a wrapped gift. Rattanavong claimed he did not know where the money came from and disclaimed ownership of it. However, the next day he called the officer who made the stop to report that someone named "Kit" owned the money. Vu testified that "Kit" was one of Vu's smaller sources of ecstasy pills.

II. DISCUSSION

The appellants were charged with conspiracy to distribute ecstasy, cocaine, crack cocaine and PCP in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), (b)(1)(B), and (b)(1)(C). "To establish that a defendant conspired to distribute drugs ... the government must prove: (1) that there was a conspiracy, i.e., an agreement to distribute the drugs; (2) that the defendant knew of the conspiracy; and (3) that the defendant intentionally joined the conspiracy." United States v. Ojeda-Estrada, 577 F.3d 871, 875 (8th Cir.2009) (quoting United States v. Jiminez, 487 F.3d 1140, 1146 (8th Cir. 2007)), cert. denied, ___ U.S. ___, 130 S.Ct. 1112...