United States v. Irving

Citation86 Fed. R. Evid. Serv. 1647,665 F.3d 1184
Decision Date29 November 2011
Docket NumberNo. 10–7012.,10–7012.
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Ronald Keith IRVING, Defendant–Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

OPINION TEXT STARTS HERE

James Alexander Drummond of Jim Drummond Law Firm, PLC, Norman, OK, for DefendantAppellant.

Ryan Roberts, Assistant United States Attorney (Mark F. Green, United States Attorney; Linda A. Epperley, Assistant United States Attorney, with him on the brief), Office of the United States Attorney, Eastern District of Oklahoma, for PlaintiffAppellee.

Before MURPHY, HARTZ, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

Following a jury trial, DefendantAppellant Ronald Keith Irving was convicted of one count of witness tampering, in violation of 18 U.S.C. §§ 1512(a)(1)(A) and 2, for his part in a murder-for-hire scheme directed at killing a local law enforcement officer prior to that officer testifying against Mr. Irving.1 He also was convicted of one count of possession of crack cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii). Mr. Irving was sentenced to 360 months in prison, followed by eight years of supervised release. Mr. Irving now appeals his conviction, raising five claims: (1) the indictment failed to charge a crime; (2) the indictment was duplicitous; (3) there was insufficient evidence introduced at trial to support his convictions; (4) the district court abused its discretion in excluding the testimony of a defense witness who was present in the courtroom in violation of the Rule of Sequestration; and (5) the district court abused its discretion in admitting testimony from the target of the murder-for-hire scheme regarding his role in an earlier investigation and prosecution of Mr. Irving. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm Mr. Irving's convictions.

BACKGROUND2

Mr. Irving's charges relate to his association with Lt. Brian Stark. At all material times, Lt. Stark was head of the Special Investigations Unit (“SIU”) of the Muskogee Police Department (“MPD”).3 The SIU primarily handled narcotics investigations, and Lt. Stark was its “hands-on” supervisor. R., Vol. II, at 238 (Trial Tr., dated July 20–23, 2009). Under his leadership, the SIU “dramatic[ally] increase[d] the number of search warrants that it obtained and arrests that it completed. Id. at 239–40. The media developed an increased interest in the SIU's activities and Lt. Stark handled all media matters for the SIU, becoming “the face of the unit for the public.” Id. at 240–41.

On August 25, 2008, Lt. Stark was part of a five-person team conducting surveillance of a controlled buy of narcotics from Mr. Irving. Officer Casey Hix of the MPD set up the controlled drug buy, using a confidential informant named Terrence Banks. Mr. Banks had two telephone conversations with Mr. Irving in establishing the arrangements for the buy. Mr. Banks used an MPD-provided cell phone and the MPD recorded the calls. In both calls, Mr. Irving spoke in cryptic terms and appeared reluctant to discuss the details of the upcoming drug transaction.4

The MPD used standard controlled-buy procedures on August 25, 2008. Specifically, prior to the purchase, the MPD searched both Mr. Banks and the police-owned vehicle that he drove to the drug transaction. No drugs, money, or contraband were found during this search. Mr. Banks was given $300 to make the buy and equipped with an audio-visual recording device.

Mr. Banks and Mr. Irving met, per their arrangement, in a Blockbuster store parking lot. Mr. Irving, who had arrived before Mr. Banks, approached the latter's vehicle with a balled-up left hand. He stuck this hand inside the window of Mr. Banks's vehicle. Mr. Banks reported that Mr. Irving dropped a sack of crack cocaine and grabbed the money that was lying on his lap. 5 Immediately thereafter, Mr. Banks departed the Blockbuster parking lot and drove directly to a rendezvous point with local authorities. At no point during the entire controlled buy did Mr. Banks ever exit his vehicle, nor did anyone approach it or enter it except for Mr. Irving.

Upon reuniting with the police, Mr. Banks provided Officer Hix with the narcotics—10.48 grams of crack cocaine.6 At that time, Mr. Banks and the vehicle were searched for a second time, revealing no other drugs or money. Mr. Banks then gave a voluntary statement to the police declaring that the purchased drugs came from Mr. Irving.

As a result of this controlled buy, Mr. Irving was arrested in mid-February 2009 as part of a large narcotics round-up. On February 24, 2009, a Criminal Complaint was filed against Mr. Irving in the United States District Court for the Eastern District of Oklahoma. Accompanying the Criminal Complaint was a sworn affidavit by Lt. Stark, detailing the circumstances of the controlled buy of August 25, 2008.

Shortly after Mr. Irving's arrest, local authorities received a handwritten note from a prisoner at the Muskogee County Jail indicating that someone was trying to have Lt. Stark killed. The prisoner who sent the note, Durrell Collins, was interviewed, at which time he told the authorities that he had been contacted by Mr. Irving about potentially arranging a “hit” on Lt. Stark. R., Vol. II, at 290–92. According to Mr. Collins, Mr. Irving first hatched this murder-for-hire plot in 2006, when he told a group of people at a party that he would pay $50,000 to anyone who would kill Lt. Stark. The impetus behind Mr. Irving's desire to eliminate Lt. Stark in 2006 apparently was Lt. Stark's involvement in a prior drug-related investigation and prosecution of Mr. Irving, which was based on a 2005 controlled buy of crack cocaine in which Mr. Irving took part. Another government witness, Nathan Simmons, also testified at trial that Mr. Irving had announced at a 2006 house party in Eufala, Oklahoma, that he was willing to pay between $25,000 and $50,000 to have a cop (presumably Lt. Stark) killed. At that time, Mr. Collins, who was present at the party, told Mr. Irving that he knew someone—i.e., Deandre Washington, whose nickname was “Monster”—who might be willing to do the “hit.” Id. at 290, 293–94. Nothing immediately materialized following their 2006 conversation. However, while they were both in jail in February 2009, Mr. Irving sent a note to Mr. Collins suggesting that they move forward with the plan.

Mr. Collins then spoke directly to Mr. Irving regarding the plan through cell phones that had been smuggled into the jail. The cell phones were in the possession of Milton Warrior and Sean Warrior, cousin inmates who also were housed in the Muskogee County Jail. Sean Warrior was Mr. Irving's cell mate, and Milton Warrior was housed near Mr. Collins. As a follow-up regarding Mr. Irving's note, Milton Warrior called Sean Warrior on his cell phone and got Ronald Irving on the phone, and then Milton Warrior asked Mr. Collins to come into his jail cell so that [Mr. Collins could] talk[ ] to Ron Irving.” Id. at 298. According to Mr. Collins, Mr. Irving asked him if he was “still cool on—you know what I'm talking about on Stark[ ]?” Id. When Mr. Collins responded that he was on board, Mr. Irving “asked [him] what [he] needed to do to bond out [of jail].” Id. at 298–99.7 As Mr. Collins later explained, Mr. Irving wanted to “get [him] out [of jail] quicker to get the job done.” Id. at 299. Then, as noted above, Mr. Collins contacted law enforcement through a handwritten note.

At the behest of federal investigators, Mr. Collins pretended to go along with Mr. Irving's plan. Mr. Collins discussed his bond with Mr. Irving and Mr. Irving assured him that he would arrange for someone to bring Mr. Collins's girlfriend the bond money to get him out of jail. And he did so. 8

Once out, Mr. Collins contacted Mr. Washington, who agreed to do the hit. The two ultimately agreed to travel down to Muskogee on March 11, 2009. The plan was for Mr. Washington to shoot Lt. Stark to death in Muskogee on that same day. At no point during Mr. Collins's interactions with Mr. Washington did he identify Mr. Irving as the person purchasing Mr. Washington's services. Mr. Washington did know that payment for the killing would be made in two installments (as instructed by Mr. Irving): $25,000 up front, with another $25,000 following the successful completion of the hit.

During this time, Mr. Collins also remained in contact with Mr. Irving via a contraband cell phone that was smuggled into the jail for Mr. Irving.9 On March 5, 2009, Mr. Collins called Mr. Irving to inform him that [m]e [sic] and [Mr. Washington] are on our way down there [i.e., Muskogee].” Id. at 322. At that time, Mr. Collins further confirmed that half of the payment would be made up front. The next day, the two spoke again, and Mr. Irving encouraged Mr. Collins to move forward with the plan, saying: “Shit, come on!” Aplee. Add. of Exs., Ex. 34 (Audio Recording of Mar. 6, 2009, Call). When the two spoke again on March 8, 2009, Mr. Collins told Mr. Irving that [m]e [sic] and [Mr. Washington] [will] be down there tomorrow” to “take care of that.” In response, Mr. Irving requested that Mr. Collins [h]oller at [him],” (i.e., contact him later), and concluded by saying [i]t's on my nig.” Aplee. Add. of Exs., Ex. 35 (Audio Recording of Mar. 8, 2009, Call). The two spoke again on March 11, the day of the planned killing. After speaking with Mr. Irving, Mr. Collins understood that he needed to get the gun for the hit on Lt. Stark and he ostensibly planned to pick one up in Muskogee on March 11.

Mr. Washington was arrested in transit to Muskogee on March 11, 2009. He was subsequently indicted, along with Mr. Irving, on one count of tampering with a witness, in violation of 18 U.S.C. §§ 1512(a)(1)(A) and 2.10 Specifically, the indictment charged that the two men “did attempt to kill Lieutenant Br[i]an Stark by conspiring to shoot him with the intent to prevent the attendance or testimony...

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