U.S. v. Drew

• Decision Date: 17 January 1990
• Docket Number: Nos. 88-2661,88-2662 and 88-2668,s. 88-2661
• Citation: 894 F.2d 965
• Parties: 30 Fed. R. Evid. Serv. 244 UNITED STATES of America, Appellee, v. Earl D. DREW, a/k/a Derrick/Dereck Drew, Appellant. UNITED STATES of America, Appellee, v. Dennis Edward DREW, Appellant. UNITED STATES of America, Appellee, v. Hampton David STEWART, Jr., a/k/a Snookie, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 965

894 F.2d 965

30 Fed. R. Evid. Serv. 244

UNITED STATES of America, Appellee, v. Earl D. DREW, a/k/a Derrick/Dereck Drew, Appellant.

UNITED STATES of America, Appellee, v. Dennis Edward DREW, Appellant.

UNITED STATES of America, Appellee, v. Hampton David STEWART, Jr., a/k/a Snookie, Appellant.

Nos. 88-2661, 88-2662 and 88-2668.

United States Court of Appeals Eighth Circuit.

Submitted June 12, 1989.

Decided Jan. 17, 1990.

John R. Cullom, Kansas City, Mo., for appellants.

Thomas M. Larson, Kansas City, Mo., for appellee.

Before LAY, Chief Judge, BOWMAN, Circuit Judge, and LARSON, District Judge. ^*

BOWMAN, Circuit Judge.

This is an appeal by defendants found guilty of various drug charges in yet another drug house case from Kansas City. The case began with an indictment in February 1988 charging Dennis Drew with two counts of distribution of cocaine. Shortly after this indictment was filed, Frank Biondo informed the Federal Bureau of Investigation that Dennis Drew had attempted to hire Biondo to murder Carolyn Tanner, whose testimony before the grand jury had led to the February indictment.

In his subsequent meetings with Drew, Biondo, who had turned government informant, carried a hidden tape-recorder, which was monitored by the police. During these meetings, Drew and Biondo continued their discussions regarding the murder contract and Biondo purchased narcotics from Drew. These conversations, as well as other information provided by Biondo and Tanner, implicated three others in a conspiracy to distribute cocaine and provided the probable cause for a warrant to search the residence shared by the four apparent conspirators. The search turned up marijuana, cocaine, various paraphernalia commonly used in the illegal sale of narcotics, a substantial cache of guns, and a large amount of money.

Based on this additional evidence, the grand jury returned a superseding indictment against Dennis Drew, Earl Drew, Hampton Stewart, and Henry Tatum. Charges against Henry Tatum were dropped because he could not be located at the time of trial. After a trial by jury, all the remaining defendants were found guilty of conspiracy to distribute cocaine and cocaine base, 21 U.S.C. Sec. 846 (1982); Earl and Dennis Drew were convicted of distribution of cocaine, 21 U.S.C. Sec. 841(a)(1) (1982); Dennis Drew alone was found guilty of attempting to kill Carolyn Tanner to prevent her from testifying, 18 U.S.C. Sec. 1512(a)(1)(A) (Supp. V 1987); and only Earl Drew was convicted of use of firearms in relation to a drug trafficking offense, 18 U.S.C. Sec. 924(c) (Supp. V 1987). On appeal, the defendants raise a total of ten issues. None is meritorious, and we affirm.

I.

We turn first to the issues raised by Earl Drew.

A.

Earl Drew appeals the District Court's ¹ denial of his motion to sever his trial from those of his two co-defendants. To prevail, Drew must show clear prejudice and abuse of discretion. United States v. Martin, 866 F.2d 972, 979 (8th Cir.1989). No such showing has been made. Drew and the other defendants were charged with having engaged in a criminal conspiracy. Rarely, if ever, will it be improper for co-conspirators to be tried together, id., and it clearly was not improper here.

We reject Drew's claim that the out-of-court tape recorded statements of his co-defendants who did not testify at trial violated his rights under the confrontation clause of the Sixth Amendment of the Constitution. These recordings were admissible as statements of co-conspirators under Rule 801(d)(2)(E) of the Federal Rules of Evidence, and the requirements for admission pursuant to Rule 801(d)(2)(E) are coterminous with the constitutional requirements of the confrontation clause. Bourjaily v. United States, 483 U.S. 171, 182, 107 S.Ct. 2775, 2782, 97 L.Ed.2d 144 (1987); see also 2 W. LaFave & J. Israel, Criminal Procedure Sec. 17.2 at 364 (1984).

While Drew acknowledges the applicability of Rule 801(d)(2)(E), he argues that "the cumulative prejudice" of the out-of-court statements and statements regarding the prior criminal history of one of his co-defendants militated for severance. But the statements of his co-conspirators would have been admissible even if he had been tried separately. The reference to the prior criminal history of one of appellant's co-defendants was directed only to that co-defendant and the trial judge gave a limiting instruction. The District Court did not err in denying Drew's motion for severance from his co-defendants.

B.

Earl Drew attacks his conviction under 18 U.S.C. Sec. 924(c) for unlawfully "us[ing]" or "carr[ying]" a firearm during the commission of a felony on the ground that the evidence was insufficient to submit that charge to the jury. He argues that because he did not discharge or explicitly threaten to discharge a gun, he cannot be charged with use of a firearm during the commission of a felony. Appellant faces a steep road to reversal on these grounds: we must construe the evidence in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), and the government is entitled to "the benefit of all inferences that reasonably may be drawn from the evidence." United States v. Ellison, 793 F.2d 942, 949 (8th Cir.), cert. denied, 479 U.S. 937, 107 S.Ct. 415, 93 L.Ed.2d 366 (1986).

In this case, the felony to which Drew's firearms charge attaches was not a single discrete event, but the continuous operation of a drug house. The jury found appellant guilty of both conspiracy to distribute cocaine and cocaine base and distribution of cocaine. Several undercover drug purchases occurred at the house shared by the conspirators; evidence was presented that cocaine powder was converted to cocaine base or "crack cocaine" on the premises; and a search of the house turned up divers paraphernalia associated with the sale of drugs such as a scale, a pager, a beeper, and variously sized glassine bags, in addition to an inventory of illegal drugs.

It was in this house that a .357 magnum revolver as well as a .44 magnum revolver were found. The .357 revolver and ammunition for the .44 revolver were found in Earl Drew's bedroom. Tr. Vol. 1 at 8, 32. Government witness Frank Biondo testified that Drew had bartered cocaine for the .357 magnum and carried the gun to the door when greeting late-night callers. Tr. Vol. 2 at 17, 18.

Noting the need of drug dealers for guns to protect their operations, this Court has made clear on several occasions that the mere presence and ready availability of a firearm at a house where drugs are dealt constitutes the "use" of a gun during a narcotics offense. See, e.g., United States v. Brett, 872 F.2d 1365, 1370-71 (8th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 322, 107 L.Ed.2d 312 (1989). In the present case, the jury had more than sufficient evidence to find that Earl Drew participated in the operation of a drug house, that a gun was present at the drug house and in Drew's possession and control, and that Drew "use[d]" a firearm during the commission of a drug trafficking crime.

C.

Earl Drew raises two separate issues concerning the government's closing argument. We review the trial court's rulings on objections to statements made in closing argument under an abuse of discretion standard. United States v. Flynn, 852 F.2d 1045, 1055 (8th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 511, 102 L.Ed.2d 546 (1988).

First, appellant again invokes his theory on the meaning of "use" under the firearm statute in arguing that the government misstated the law in closing argument thereby denying appellant his due process rights under the Fifth Amendment of the Constitution. ² Because we find Drew's interpretation of the law as requiring an actual or threatened discharge of a firearm contrary to any plausible reading of Sec. 924, ³ we obviously find no error in the government's failure to present appellant's version of the law to the jury during closing argument.

Appellant's second complaint with the closing argument is that government counsel misstated the law by describing "beyond a reasonable doubt" as equivalent to being "sure" or "certain." The relevant definitions given by Webster's Third New International Dictionary (unabridged) (1981), for "certain" are: "not to be doubted as a fact: INDISPUTABLE ... given to or marked by complete assurance and conviction, lack of doubt ... through or as if through infallible knowledge." Id. at 367. And those for "sure" are: "assured in mind: having no doubt ... marked by ... feelings of confident certainty and conviction esp. of the rightness of one's judgment ... objectively certain: admitting of no doubt ... marked by unquestionable fact, verity, or substantiation." Id. at 2299.

To the extent that the words "sure" and "certain" differ in meaning from "beyond a reasonable doubt," it is not the defendant who should be protesting: the definitions of "sure" and "certain" appear to encompass even doubts that do not merit the qualifier "reasonable." Although we think prosecutors would be well advised to avoid trying to explain to the jury the meaning of "beyond a reasonable doubt" (this is a function properly performed only by the trial judge), the error here favored the defendants and was harmless beyond a reasonable doubt. We therefore decline to reverse on this ground.

D.

Earl Drew next contends that evidence of his drug dealing prior to the period covered in the indictment was improperly admitted. The admissibility of prior bad acts evidence is governed by Rule 404(b) of the Federal Rules of Evidence.

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The decision to admit evidence of prior bad...