United States v. Armstrong

• Citation: 782 F.3d 1028
• Decision Date: 10 April 2015
• Docket Number: No. 14–2146.,14–2146.
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Leslie ARMSTRONG, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

782 F.3d 1028

UNITED STATES of America, Plaintiff–Appellee

v.Leslie ARMSTRONG, Defendant–Appellant.

No. 14–2146.

United States Court of Appeals, Eighth Circuit.

Submitted: Jan. 16, 2015.

Filed: April 10, 2015.

Rehearing and Rehearing En Banc Denied June 17, 2015.

Kim Driggers, AFPD, argued, Latrece Gray, AFPD, on the brief, Little Rock, AR, for appellant.

Edward O. Walker, AUSA, argued, Little Rock, AR, for appellee.

Before COLLOTON, BEAM, and KELLY, Circuit Judges.

Opinion

BEAM, Circuit Judge.

The district court¹ sentenced Leslie Armstrong to 180–months' imprisonment following his conviction by a jury of one count of distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1). On appeal, Armstrong challenges the sufficiency of the evidence supporting his conviction and claims the district court erred by admitting evidence of a prior controlled drug sale in which he was allegedly involved and by sentencing him as a career offender. We affirm.

I. BACKGROUND

On December 4, 2012, the government charged Armstrong in a one-count indictment with distribution of 12.5 grams of crack cocaine. This charge stemmed from Armstrong's alleged sale of crack cocaine to a confidential informant (CI) during a controlled buy that occurred in September 2009 (the “2009 Controlled Buy”). At the time of the 2009 Controlled Buy, the CI was working with the Drug Enforcement Agency (DEA) and local law enforcement and had already participated in several controlled buys involving different suspected drug dealers.

At trial, the government introduced substantial evidence regarding how the 2009 Controlled Buy unfolded and Armstrong's role in the buy. On the day of the buy, the CI met with DEA and local law enforcement officials at a confidential location. The officers thoroughly searched the CI to verify that he did not have any weapons, drugs, or money on his person. The CI then placed a call to a phone number he claimed belonged to Armstrong. At trial, the government played a recording of this call, and the CI can be overheard talking with a man and confirming that the man was ready to make the drug sale. Armstrong denies that he participated in the call, but the CI testified that the other voice in the recording belonged to Armstrong. The CI also testified that he was familiar with Armstrong's voice because he lived in the same apartment complex as Armstrong, had known him for years, and had purchased drugs from Armstrong on occasions prior to the 2009 Controlled Buy.

After the call, officers provided the CI with money to buy the drugs, placed an audio/video recording device on his clothing, and used a DEA vehicle to transport the CI to the apartment complex in which Armstrong lived. The CI exited the DEA vehicle and walked up to the apartment complex.² The CI proceeded directly to Armstrong's apartment, although he apparently encountered several people, including a family member, along the way. The CI testified that, upon entering Armstrong's apartment, he paid Armstrong $700 in exchange for two baggies of crack cocaine. The government showed the jury footage that was captured by the audio/video recorder the CI wore during the buy. This footage, in relevant part, depicts the CI knocking on the door of Armstrong's apartment, receiving permission to enter, and handing something to Armstrong. Armstrong appears to examine the item(s) for several seconds, and then states “you paid me for two.” The footage then depicts Armstrong handing something to the CI, after which the CI exits the apartment. However, due to the angle of the recorder, the footage does not clearly show Armstrong possessing any money or drugs during the buy.

After the CI exited the apartment, he immediately returned to the DEA vehicle and gave two baggies to the officers who had escorted him to the buy. The officers thoroughly searched the CI and verified that he had no additional drugs, weapons, or currency on his person. The government's forensic analyst testified that the baggies contained 12.5 grams of cocaine base. As noted above, Armstrong was not indicted on charges related to the 2009 Controlled Buy until December 2012.

Pursuant to Rule 404(b) of the Federal Rules of Evidence, the government filed a notice of intent to introduce evidence at trial related to Armstrong's prior felony drug convictions and his participation in a 2007 crack cocaine sale (the “2007 Controlled Buy”) for which he was never charged. With respect to the 2007 Controlled Buy, the government disclosed that this transaction involved the same CI as did the 2009 Controlled Buy. Armstrong objected to all of the government's proposed 404(b) evidence but took particular issue with the evidence related to the 2007 Controlled Buy. Specifically, Armstrong contended there was insufficient evidence that he actually participated in the buy and that the government's sole purpose in admitting this evidence was to show his propensity to commit the 2009 drug offense. At the parties' pretrial conference, the government claimed that Armstrong had asserted a general denial defense and that evidence of his role in the 2007 Controlled Buy was therefore relevant to show intent and knowledge with respect to the 2009 drug offense. The district court agreed the evidence was admissible but informed the parties that it would provide a limiting instruction. Armstrong has not challenged the government's characterization of his defense.

At trial, the CI was the first witness to provide substantive testimony about the 2007 Controlled Buy. Before allowing this testimony, the district court instructed the jury that evidence of the 2007 Controlled Buy was being offered only to help them decide whether Armstrong was the person who distributed crack cocaine to the CI during the 2009 Controlled Buy and whether Armstrong had the requisite intent to do so. The district court further admonished the jury that they could consider this evidence only if they unanimously found it was more likely true than not true, that this was a lower standard of proof than that required to convict Armstrong of the 2009 drug offense, and that they could not convict Armstrong merely because he had committed similar acts in the past.³

Following this instruction, the CI testified that in August 2007 he participated in a controlled buy that targeted another suspected drug dealer. The CI testified that when he arrived at the target's residence, the target told the CI that he did not have any drugs but could get some from “Wez,” which is Armstrong's street name. The CI testified that he and the target then waited approximately thirty minutes for Armstrong to arrive. At some point during this wait, the CI exited the target's apartment and returned to the DEA vehicle that was used to transport him to the buy location. The CI told the officers that Armstrong was bringing drugs to the buy location, that Armstrong had previously committed a violent crime against one of the CI's family members, and expressed excitement that “we can get Leslie Armstrong, we can get him good.” The CI then returned to the target's apartment, and Armstrong arrived shortly thereafter. The CI testified that, although he did not directly see the target receive drugs from Armstrong, the target provided a baggy to the CI shortly after Armstrong arrived. The government presented testimony from a forensic analyst who stated that the baggy contained cocaine base. In addition, the government also provided audio/video footage and surveillance photos that depict Armstrong entering the target's residence shortly before the CI received drugs from the target. Finally, both officers who participated in the 2007 Controlled Buy testified that the CI was thoroughly searched before and after the buy and that Armstrong was not the intended target of the buy. Neither the target nor Armstrong were ever charged in connection with their participation in the 2007 Controlled Buy.

At trial, the defense marshaled a heavy attack against the CI's credibility. During direct and cross-examination, the CI frankly acknowledged that he despised Armstrong because Armstrong had committed a violent crime against one of the CI's family members several years before either controlled buy occurred. The CI further admitted that he had numerous felony convictions, had been convicted of filing a false police report, had lied to his parole officer about his drug use, and had violated his parole on multiple occasions. The defense also presented three character witnesses who testified that the CI had a poor reputation for truthfulness in the community. In addition, the CI acknowledged that he was a cocaine addict and had used drugs in the months following the 2009 Controlled Buy. However, multiple law enforcement officials who observed the CI during the buy testified that he showed no signs of being high and that they would be willing to use the CI as an informant in the future because the information he provided was always reliable.

The jury ultimately convicted Armstrong of distributing crack cocaine to the CI during the 2009 Controlled Buy. Before sentencing, the United States Probation Office prepared a presentence investigation report (PSR). The PSR calculated that Armstrong had three prior felony convictions that were either a crime of violence or a controlled substance offense and therefore recommended that he be sentenced as a career offender under Section 4B1.1 of the United States Sentencing Guidelines Manual (U.S.S.G.). Specifically, the PSR noted that in 1993 Armstrong pled guilty to a manslaughter charge related to a killing that took place in 1991. The PSR also stated that Armstrong was convicted of two separate crack cocaine distribution offenses, one of which took place on June 1, 1991 (the 1991 Drug Offense), and the other on December 28, 1992 (the 1992 Drug Offense).

Armstrong objected to the PSR's recommendation that he be classified as a career offender. With respect to the manslaughter conviction, Armstrong contended that...