U.S. v. Kime

• Decision Date: 03 January 1997
• Docket Number: Nos. 95-2944,95-3160,s. 95-2944
• Citation: 99 F.3d 870
• Parties: 45 Fed. R. Evid. Serv. 1278 UNITED STATES of America, Plaintiff--Appellee, v. John Monroe KIME, also known as Jack Kime, Defendant--Appellant. UNITED STATES of America, Plaintiff--Appellee, v. Randall Kirk BELL, Defendant--Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 870

99 F.3d 870

45 Fed. R. Evid. Serv. 1278

UNITED STATES of America, Plaintiff--Appellee, v. John Monroe KIME, also known as Jack Kime, Defendant--Appellant.

UNITED STATES of America, Plaintiff--Appellee, v. Randall Kirk BELL, Defendant--Appellant.

Nos. 95-2944, 95-3160.

United States Court of Appeals,

Eighth Circuit.

Submitted March 13, 1996.

Decided Oct. 25, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied Jan. 3, 1997.

John Keith Rigg, Des Moines, IA, argued, for John Kime.

Joseph Bertogli, Des Moines, IA, argued, for Randall Bell.

Stephen P. O'Meara, Assistant U.S. Attorney, argued, for U.S.

Before MORRIS SHEPPARD ARNOLD, GIBSON, and HEANEY, Circuit Judges.

FLOYD R. GIBSON, Circuit Judge.

Jack Kime and Randall Bell were each convicted by a jury of drug distribution, conspiracy, and firearm violations. Kime appeals his conviction. Bell appeals his conviction and sentence. We affirm in part and remand in part.

I. BACKGROUND

In April of 1994, the Polk County Sheriff's Office in conjunction with federal law enforcement officials initiated wiretap and video surveillance of a suspected drug distribution ring headed by Jack Kime. The investigation culminated in the execution of multiple search warrants on the homes and businesses of various members of the conspiracy on May 12, 1994. Kime and Bell were subsequently arrested and charged in a multi-count indictment along with Randy Groves, Clifford Brown, Joseph Ybarra, Joel Dodd, Dennis Smith, Dan Fedkenheuer, Bobby McGee, Donald Leach, Kelly Hilpipre, George Strable, and Daniel Davis, Jr. Ybarra and Hilpipre entered into plea agreements but did not testify at trial. The remaining codefendants, with the exception of Fedkenheuer who remains a fugitive, entered into plea agreements and testified at trial against Kime and Bell. Bell's former co-conspirators as well as numerous other witnesses testified as to Kime and Bell's involvement in the drug distribution scheme, including a series of armed robberies of fellow drug dealers perpetrated in the fall of 1994 for the purpose of obtaining drugs, capital, and firearms. Kime and Bell both testified in their own defense and denied any wrongdoing.

The jury convicted Jack Kime of one count of continuing criminal enterprise in violation of 21 U.S.C. § 848(a) and (c) (1994) (Count One); one count of conspiracy to possess with intent to distribute marijuana, cocaine, and methamphetamine in violation of 21 U.S.C. § 846 (1994) (Count Two); one count of distribution of methamphetamine in violation of 21 U.S.C. § 841(a)(1) (1994) (Count Three); two counts of possession with intent to distribute methamphetamine, cocaine, and marijuana in violation of 21 U.S.C. § 841(a)(1) (1994) (Counts Eight and Ten); and three counts of using or carrying a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1) (1994) (Counts Nine, Eleven, and Fourteen). Kime was sentenced to a total of seventy-five years imprisonment.

The jury convicted Bell of one count of conspiracy to possess with intent to distribute marijuana, cocaine, and methamphetamine in violation of 21 U.S.C. § 846 (1994) (Count Two); one count of possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1) (1994) (Count Fifteen); and two counts of carrying or using a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1) (1994) (Counts Fourteen and Sixteen). Bell was sentenced to a total of fifty-five years imprisonment.

II. DISCUSSION

A. JACK KIME'S ARGUMENTS:

1. Reasonable Doubt Instruction

Kime and Bell objected to the district court's proposed reasonable doubt instruction ¹ based on Eighth Circuit Model Jury Instruction 3.11 and proposed the following additional sentence: "A reasonable doubt is one that fairly and naturally arises from the evidence or lack of evidence produced by the Government." The district court rejected Kime's proposed addition and elected to proceed instead with the unadorned version of the model instruction. Kime and Bell both claim error.

"We review the formulation of jury instructions by the district court for abuse of discretion." United States v. Parker, 32 F.3d 395, 400 (8th Cir.1994). We find none. The jury instructions as a whole effectively communicated the defendants' point without the proposed addition to the reasonable doubt instruction: In particular, Instruction No. 13 instructed the jurors on the presumption of innocence, and Instruction No. 4 instructed the jurors to use their reason and common sense to draw deductions or conclusions from the facts established by the evidence. "The defendant is not entitled to a particularly worded instruction where the instructions given, when viewed as a whole, correctly state the applicable law and adequately and fairly cover the substance of the requested instruction." Id. This Court has repeatedly approved the particular reasonable doubt instruction in issue here, United States v. Simms, 18 F.3d 588, 593 (8th Cir.1994), and while "such a lack of evidence instruction may be useful, the district court, in its discretion, may decline to employ it." United States v. Smith, 602 F.2d 834, 838-39 (8th Cir.), cert. denied, 444 U.S. 902, 100 S.Ct. 215, 62 L.Ed.2d 139 (1979).

2. Kime's Books

Among the evidence seized from Asphalt Maintenance & Repair, the conspiracy's cover business, were several incriminating books. Some of these publications were devoted to the subject of illegal drugs. These included: The Secret Garden, Marijuana, Manufacturing Methamphetamine, Marijuana Grower's Guide, Psychedelic Chemistry, and Construction and Operation for Clandestine Drug Laboratories. Other titles covered burglary and theft-related topics, such as: Techniques of Safecracking, Techniques of Burglar Alarm Bypassing, How to Make Your Own Professional Lock Tools, Vol. 1-4, Techniques of Safe and Vault Manipulation, and The Complete Guide to Lockpicking by "Eddie the Wire." These books were admitted into evidence over Kime's objection. While Government witness and former co-conspirator Randy Groves testified that the books belonged to Kime, he also admitted that he had never seen any member of the conspiracy, including Kime, read the books and that some of them appeared to have never been opened. Kime argues that these books should have been excluded under Fed.R.Evid. 403 because the risk of unfair prejudice greatly outweighed their probative value. The Government argues that the books are at least probative of Kime's criminal intent, especially when viewed in conjunction with the additional evidence of the conspiracy's involvement in drug distribution and armed robbery.

Rule 403 of the Federal Rules of Evidence gives the district court discretion to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Fed.R.Evid. 403. We accord great deference to the district court's application of the Rule 403 balancing test and will reverse only for a clear abuse of discretion. United States v. Rabins, 63 F.3d 721, 726 (8th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1031, 134 L.Ed.2d 109 (1996).

Again we find no abuse of discretion. The risk of prejudice from these inflammatorily-titled publications is very real, but we do not view it as unfair prejudice. Whether or not Kime actually had the opportunity to read and exploit the techniques contained in these books, his mere possession of them is clearly probative of his criminal intent. The drug-oriented publications obviously bear on his interest in the charged drug distribution and conspiracy crimes as "tool[s] of the drug-trafficking trade." United States v. Ford, 22 F.3d 374, 381-82 (1st Cir.) (admission of book entitled Secrets of Methamphetamine Manufacture in trial of defendant charged with distribution of cocaine and marijuana was relevant under Rule 401 and not unduly prejudicial under Rule 403), cert. denied, 513 U.S. 900, 115 S.Ct. 257, 130 L.Ed.2d 177 (1994).

While the burglary-related publications would not ordinarily prove relevant in defining an individual's criminal intent to distribute drugs, that is not the case here. The record is rife with evidence indicating that the Kime organization's modus operandi included the theft of rival drug dealers' product, proceeds, and firearms. As such, the possession of these books is further evidence of Kime's criminal intent in regard to this particular aspect of the charged conspiracy.

3. Evidence of the Nelson Robbery

Des Moines drug dealer James Nelson testified at trial that he had been pistol-whipped, shot in the arm, and robbed of approximately $30,000 by members of Kime's organization. Over defense objections, the district court admitted into evidence police photographs of the robbery scene at Nelson's house, photographs of the wounds inflicted on Nelson during the robbery, and Nelson's derringer. Kime argues that the district court abused its discretion by failing to exclude this evidence under Rule 403 because there was no relevant reason to admit this evidence other than to inflame the jury by showing them the bloody pictures of the violent assault.

We believe that this evidence was properly admitted as corroborating Groves, Brown, and McGee's testimony implicating Kime in the robbery. In addition, the photographs documenting Nelson's gunshot wound and head injuries were also probative of why Nelson misidentified Bell, who was indisputably incarcerated at the time of the robbery, as one of his assailants. Neither do we find this evidence particularly prejudicial as unduly gruesome or confusing. We find no abuse of discretion.

4. Disclosure of Confidential Informant 1

The affidavit in support of the Government's application for the interception of wire and oral communications contained the testimony of three confidential informants. After the Government subsequently disclosed the...