U.S. v. Cook

• Decision Date: 23 February 1996
• Docket Number: 95-5160,Nos. 94-5827,s. 94-5827
• Citation: 76 F.3d 596
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bobby Carrol COOK, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Bobby Carrol COOK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 596

76 F.3d 596

UNITED STATES of America, Plaintiff-Appellee, v. Bobby Carrol COOK, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Bobby Carrol COOK, Defendant-Appellant.

Nos. 94-5827, 95-5160.

United States Court of Appeals Fourth Circuit.

Argued Dec. 8, 1995.

Decided Feb. 23, 1996.

ARGUED: Matthew Hall Fair, Elkins, West Virginia, for Appellant. Thomas Oliver Mucklow, Assistant United States Attorney, Wheeling, West Virginia, for Appellee. ON BRIEF: William D. Wilmoth, United States Attorney, Wheeling, West Virginia, for Appellee.

Before ERVIN and MOTZ, Circuit Judges, and WILLIAMS, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. Judge DIANA GRIBBON MOTZ wrote the opinion, in which Judge ERVIN and Senior Judge WILLIAMS joined.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

Bobby Carrol Cook appeals from his convictions and sentences for drug trafficking crimes. Cook's primary contention is that the district court erred in failing to instruct the jury that it was required to find that he knew that the person from whom he received drugs was a minor in order to convict him of violating 21 U.S.C. § 861(a)(3). Because § 861(a)(3) does not require that a recipient of illegal drugs know that his supplier is a minor, and because Cook's remaining arguments are also without merit, we affirm Cook's convictions and sentences.

I.

On March 8, 1994, Trooper Robert Blair was conducting an undercover operation in Jefferson County, West Virginia. While Trooper Blair drove through the Fox Glen Subdivision, a station wagon passed his car. As the vehicle passed, Trooper Blair indicated to a backseat passenger that he wanted to purchase some crack cocaine. The station wagon then backed up and Blair told the passenger that he was interested in buying a "fifty," meaning fifty dollars worth of crack.

The backseat passenger, later identified as Mason Huddleston, retrieved a Lifesaver Holes candy vial containing crack from his pocket and poured some of the drug into his hand. He passed the crack up to the station wagon's driver, later identified as defendant Cook, who then got out of the car and brought the crack over to Blair's car. When Blair insisted on examining the crack before giving Cook any money, Huddleston leaned out the backseat window of the station wagon, pointed a gun at the trooper, and told Cook, "go ahead partner, I've got him covered." Cook and Blair then concluded their exchange. Recording devices installed in the trooper's car videotaped and audiotaped the transaction between Blair and Cook; Huddleston's conduct, however, was not recorded because the station wagon was outside the range of the recording devices.

Shortly thereafter, police stopped Cook's station wagon and arrested him. Huddleston was no longer in the vehicle. During a patdown search, police discovered a .32 caliber pistol in Cook's pocket, which Cook asserted was Huddleston's gun. After being advised of his rights, Cook offered to make a statement. In his statement, Cook confessed that he and Huddleston had driven to Fox Glen in order to sell crack. When asked how old Huddleston was, Cook replied, "[t]hey say he is sixteen, I think." Additionally, Cook conceded that he had seen Huddleston point the gun at the trooper, and surmised that Huddleston had done so in order to avoid "get[ting] ripped off." Cook further confessed that he and Huddleston had driven to Fox Glen to sell drugs on several other occasions, and that the most crack he had seen Huddleston carry was "[p]robably a candy vial full" on February 18, 1994.

Cook was charged with one count of distribution of cocaine base (crack), in violation of 21 U.S.C. § 841(a)(1); one count of receipt of crack cocaine from an individual under the age of eighteen, in violation of 21 U.S.C § 861(a)(3); and one count of use/possession of a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Cook testified at trial and denied much of what he had stated in his earlier confession to police. Specifically, he denied seeing Huddleston point the gun at Blair and testified that he thought Huddleston was older than eighteen years of age. To support the latter contention, Cook offered several defense witnesses who testified that Huddleston had told them he was twenty-two and that Huddleston looked and acted older than eighteen. After a two-day trial, a jury convicted Cook of all the charges brought against him.

In calculating Cook's sentence, the district court attributed to him the estimated amount of crack Huddleston carried in the candy vial on March 8, 1994; additionally, the court included, as relevant conduct, the estimated amount of crack contained in the full candy vial that Huddleston possessed on February 18, 1994. The trial court further enhanced Cook's sentence for obstructing justice based on its finding that he had testified falsely at trial.

II.

Cook's primary contention is that the district court erred in its instructions to the jury regarding the predicate elements required to establish a violation of 21 U.S.C. § 861. That statute, which is designed to punish defendants who commit drug crimes involving persons under the age of eighteen, provides:

It shall be unlawful for any person at least eighteen years of age to knowingly and intentionally--

...

* * *

(2) employ, hire, use, ... a person under eighteen years of age to assist in avoiding detection or apprehension for any offense of this subchapter or subchapter II of this chapter by any Federal, State or local law enforcement official; or

(3) receive a controlled substance from a person under 18 years of age, other than an immediate family member, in violation of this subchapter or subchapter II of this chapter.

21 U.S.C. § 861(a)(2), (3). Maintaining that § 861(a)(3) should be read to include a requirement that a defendant know that the person from whom he receives drugs is under eighteen, Cook proposed that the district court instruct the jury that it could only convict him if it found that he knew Huddleston was younger than eighteen. The district court rejected Cook's reading of the statute and his proposed instruction. The court instead adopted the government's proposed instruction--that to convict under the statute "it is not necessary that the United States prove that the defendant knew or had knowledge of the juvenile's age at the time of the offense."

In arguing for its proposed instruction, the government relied primarily on then-Judge Ruth Bader Ginsburg's opinion for the District of Columbia Circuit in United States v. Chin, 981 F.2d 1275 (D.C.Cir.1992), cert. denied, 508 U.S. 923, 113 S.Ct. 2377, 124 L.Ed.2d 281 (1993). In Chin, the defendant's appeal centered on his contention that § 861(a)(2), § 861(a)(3)'s statutory neighbor, required the government to prove the defendant knew that the youth involved in his offense was a minor. Justice Ginsburg began her analysis in Chin by commenting that the statute was "not a model of meticulous drafting," and that the knowledge requirement concerning the minor's age could not be determined through examining the words of the statute alone. Id. at 1279. Nevertheless, citing the "imperfectly expressed," though "fairly implied," intent of Congress to protect minors from the drug trade, the Chin court held that the statute did not require the government to prove that the defendant knew that the person with whom he was dealing was a minor. Id. at 1280. The court reasoned that construing the statute in any other way would not make sense because it would "invite blindness by drug dealers to the age of youths they employ," and would place on the government the "often impossible burden of proving, beyond a reasonable doubt, that a defendant knew the youth [involved] was under eighteen." Id. Congress's implied intent in enacting the statute, to protect juveniles as a class, suggested that "Congress meant to impose on the drug dealer the burden of inquiry and the risk of misjudgment." Id.

The Chin court noted two significant factors in its decision. First, the absence of a knowledge requirement concerning the minor's age did not "threaten[ ] to criminalize 'apparently innocent conduct.' " Id. (quoting Liparota v. United States, 471 U.S. 419, 426, 105 S.Ct. 2084, 2088, 85 L.Ed.2d 434 (1985)). Second, "strict liability in this context" did not "threaten any protected conduct." Id. This is so because to sustain a conviction the government must prove that the defendant "knowingly" violated some aspect of the drug trafficking laws to trigger the strict liability of the statute.

Chin was preceded by similar decisions in other circuits, including United States v. Williams, 922 F.2d 737, 738-39 (11th Cir.) (interpreting same subsection of the statute, court held that the government need not prove defendant knew minor's age), cert. denied, 502 U.S. 892, 112 S.Ct. 258, 116 L.Ed.2d 212 (1991); United States v. Valencia-Roldan, 893 F.2d 1080, 1083 (9th Cir.) (same), cert. denied, 495 U.S. 935, 110 S.Ct. 2181, 109 L.Ed.2d 509 (1990); United States v. Carter, 854 F.2d 1102, 1108-09 (8th Cir.1988) (same). Cook contends that these decisions are distinguishable because each involved § 861(a)(2), which, he asserts, has a significantly different "grammatical structure" than the subsection of the statute involved here, § 861(a)(3). That argument is meritless. Cook has not set forth the significant grammatical difference he perceives between the subsections and we can find none. Both use the adverb "knowingly" in relation to verbs preceding the phrase concerning the minor's age. Because the grammatical structures of these two subsections of the same statute are very similar, decisions interpreting § 861(a)(2) provide powerful analogous precedent in this case.

Cook's stronger argument is that the analysis in the cases interpreting § 861(a)(2) is no longer valid in...