United States v. Patterson

• Decision Date: 05 April 2013
• Docket Number: No. 11–3258.,11–3258.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Adrian PATTERSON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

713 F.3d 1237

UNITED STATES of America, Plaintiff–Appellee,

v.Adrian PATTERSON, Defendant–Appellant.

No. 11–3258.

United States Court of Appeals,Tenth Circuit.

April 5, 2013.

William H. Campbell, Oklahoma City, OK, on opening brief, and Kenneth Scott Williamson, Goodlettsville, TN, on supplemental opening brief and reply for Appellant.

Debra L. Barnett, Assistant United States Attorney, with Barry R. Grissom, United States Attorney, Wichita, KS, on brief for Appellee.

Before TYMKOVICH, EBEL, and HOLMES, Circuit Judges.

TYMKOVICH, Circuit Judge.

Adrian Patterson was convicted by jury trial of a number of drug charges, including conspiracy to possess with intent to distribute five kilograms or more of cocaine. On appeal, Patterson raises a number of challenges to his conviction and sentence. As we explain below, none of the pretrial, trial, and sentencing claims have merit. We hold, among other things, that the district court did not err in denying a competency hearing; declining to exclude evidence at trial on Fourth Amendment and hearsay grounds; conducting and instructing the jury; and sentencing Patterson.

Exercising jurisdiction under 28 U.S.C. § 1291, we accordingly AFFIRM.

I. Background

The events that gave rise to Patterson's indictment stem from a Drug Enforcement Administration (DEA) investigation into whether Bernard Redd was distributing cocaine in Wichita, Kansas. The DEA agents began to suspect Redd was involved in a cocaine distribution conspiracy after they linked him to Richard Smart, whom the agents believed to be a large-scale cocaine distributor in Dallas, Texas, and who was already the subject of DEA surveillance. The agents had placed wiretaps on phones used by Smart and overheard a series of calls made between Smart and Redd that the agents interpreted to involve illegal drug dealing. Based in part on these communications, the agents obtained a wiretap on Redd's phone.

The agents also connected Redd to Fredrick Bradley, whose home was searched by police after neighbors reported that it had been the site of a shooting. This search revealed that the home was filled with cocaine and implements to manufacture and distribute cocaine. Bradley was subsequently arrested in Louisiana after attempting to evade the authorities. Prior to his arrest, Bradley had a series of conversations with Redd. And after Bradley's arrest, DEA agents recorded wiretapped phone conversations in which Redd discussed whether Bradley would cooperate with police.

The DEA wiretap on Redd's phone also revealed that Redd was in communication with his cousin, Adrian Patterson. Based on their interpretation of the calls between Patterson and Redd, the DEA agents concluded that the cousins were discussing the possibility of selling cocaine.

The government ultimately indicted Patterson and a number of other individuals for their roles in a cocaine distribution operation that extended throughout Kansas, Oklahoma, and Texas.¹ As is relevant to this appeal, the government alleged Smart was a large-scale cocaine distributor who agreed to sell his product to Redd, who in turn agreed to sell it to Patterson. The government further alleged that Redd had previously sold cocaine to Bradley. Redd essentially functioned as a middleman connecting Smart to Patterson.

Redd and Patterson were initially tried together on the drug conspiracy charges. During the trial, however, Redd pleaded guilty, leaving Patterson as the sole defendant. Meanwhile, Smart and Bradley became cooperating witnesses and testified against Patterson and Redd at trial.

A substantial portion of the evidence presented against the co-conspirators was obtained through wiretaps of their telephone conversations. ² In these recorded conversations, the government argued that the co-conspirators spoke in coded language to arrange drug deals. For example, in analyzing one conversation between Redd and Patterson, the government suggested that when Patterson told Redd he was “light” or “like sevens” or “close to eight,” and then stated “they won't unloosen the screws, huh,” R., Vol. II, at 672, these were references to the fact that Patterson did not have enough money to purchase cocaine and wanted to purchase some quantity on credit. Similarly, the government argued that the co-conspirators, including Patterson, used specific code words for certain matters related to the conspiracy: for example, the government suggested that “Tanisha” was a code word for Smart or Smart's drug dealing, while a reference to the size in inches of certain tires at a used car lot run by Smart was in fact a reference to the price in thousands of dollars of a kilo of cocaine.

The government presented much of the wiretap evidence through the testimony of DEA Special Agent Erik Smith, who provided his interpretation of a number of these conversations, based on his experience as a DEA agent and his surveillance of the members of the conspiracy. Agent Smith also provided context to the wiretapped conversations by showing how certain discussions between Redd and Patterson were linked to ones that Redd had with Smart. For example, Agent Smith interpreted a series of conversations between Patterson and Redd and then Redd and Smart, in which Agent Smith alleged that Patterson implored Redd to allow him to buy cocaine on credit, Redd tried to make this purchase with Smart on behalf of Patterson, and Smart did not accept the offer.

Finally, Smart and Bradley, as cooperating witnesses for the government, provided context to the coded conversations they had with Redd and confirmed that they were in fact using coded language to discuss drug dealing. For example, Bradley testified that he and Redd “really didn't use numbers on the phone, so we talk[ed] about it in person” and then would confirm the order over the phone with phrases such as “had he seen those hos, or were those hos in town, and [Redd] would say yay or nay [to confirm the order].” R., Vol. II, at 483–84. Similarly, Smart confirmed that when Redd asked to speak to “Tanisha,” it was a code that meant he wanted to buy drugs or negotiate a drug deal at Smart's mom's house, [ id. at 768–69], and when Smart told Redd about the size of tires for sale at his car lot, he was in fact suggesting the price for a kilo of cocaine.

Although both of the cooperating witnesses admitted they had never directly agreed to sell drugs to Patterson and had not had recent direct contact with Patterson, they did provide other evidence linking Patterson to the cocaine conspiracy. For example, Bradley identified Patterson in court and noted Redd had complained that Patterson was “short with money.” Id. at 494. From the context of this conversation, Bradley thought Redd was saying Patterson was not good at managing money related to his drug sales. Likewise, Smart provided no evidence of direct dealings with Patterson (and could not identify him in court) but referenced conversations he had with Redd in which Redd said that “his cousin,” a rapper, would buy cocaine supplied by Redd and was having troubles with money. Id. at 831. Patterson was in fact an aspiring rapper, and, as noted above, Redd and Patterson are cousins.

Finally, the government elicited testimony from a jailhouse informant. The informant and Patterson had been in custody together while both men were awaiting their trials on federal drug charges. The informant testified that Patterson made a number of incriminating statements to him while they were in jail together. As relevant to this appeal, the informant testified that Patterson had told him that he received cocaine from a cousin, who provided him with two to four kilos of cocaine. The informant also provided a letter to prosecutors in which he appears to have explained in greater detail what he had learned about the cocaine conspiracy. The letter itself does not appear to be part of the record on appeal but was introduced at trial.

Patterson was convicted after a five-day jury trial and sentenced to 160 months' imprisonment for the cocaine conspiracy charge. Patterson then timely filed this appeal challenging his conviction and sentence. We provide further factual and procedural background below as it becomes relevant to resolving each of Patterson's claims.

II. Analysis

Patterson challenges a wide range of the pretrial, trial, and sentencing decisions of the district court. He contends:

(1) the district court erred in denying his request for a pretrial hearing to determine his competency to stand trial;

(2) the evidence offered by the government was insufficient both to support his conviction and to provide a basis for the admission of testimony under the co-conspirator exception to the hearsay rule;

(3) his Sixth Amendment rights under the Confrontation Clause were violated when hearsay testimony linking him to the conspiracy was introduced at trial;

(4) the district court improperly instructed the jury;

(5) the district court's finding at sentencing that he was responsible for the distribution of fifteen kilos of cocaine is clearly erroneous;

(6) the indictment was insufficiently specific as to the counts charged against him; and

(7) the district court erred in failing to exclude evidence obtained in violation of his Fourth Amendment rights.

We address in turn the reasons we affirm the district court.

A. Pretrial Competency Hearing

Patterson's first challenge is to the district court's decision to deny him a hearing to determine whether he was competent to stand trial. We review the district court's decision for abuse of discretion. United States v. Martinez–Haro, 645 F.3d 1228, 1232 (10th Cir.2011). We will not reverse the district court if its decision falls within the bounds of permissible choice under the circumstances and is not arbitrary, capricious, or whimsical. United States v. Davis, 636 F.3d 1281, 1297 (10th Cir.2011).

A defendant's right to a competency hearing is governed in part by 18 U.S.C. § 4241(a), which requires a...