U.S. v. Baker, 02-1775.

• Decision Date: 11 May 2004
• Docket Number: No. 02-1775.,02-1775.
• Citation: 367 F.3d 790
• Parties: UNITED STATES of America, Plaintiff — Appellant, v. Kerry L. BAKER, Defendant — Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

367 F.3d 790

UNITED STATES of America, Plaintiff — Appellant, v. Kerry L. BAKER, Defendant — Appellee.

No. 02-1775.

United States Court of Appeals, Eighth Circuit.

Submitted: October 21, 2003.

Filed: May 11, 2004.

Rehearing and Rehearing En Banc Denied June 10, 2004.

Robert Francis Cryne, argued, Assistant U.S. Attorney, Omaha, Nebraska (Michael G. Heavican on the brief), for appellant.

Michael A. Nelson, argued, Omaha, Nebraska, for appellee.

Before BYE, JOHN R. GIBSON, and MELLOY, Circuit Judges.

MELLOY, Circuit Judge.

The United States appeals from the district court's post-verdict grant of Kerry L. Baker's motion for acquittal on a crack cocaine conspiracy charge. Because the district court's ruling involved credibility determinations, and because substantial evidence supported the jury's verdict, we reverse.

I.

The government charged Baker under a three count, superceding indictment. Count I alleged conspiracy to distribute and possess with intent to distribute more than fifty grams of cocaine base (crack cocaine). Count II alleged possession of a firearm in furtherance of the cocaine conspiracy. Count III alleged possession of a firearm by a felon.

The original indictment did not contain Count III. Count I of the original indictment specifically alleged a drug conspiracy that involved Baker and a suspected Omaha-area drug dealer named Gary Johnson. The original indictment listed Johnson as a co-defendant with Baker. In the superceding indictment, the government dropped Johnson as a defendant and removed reference to Johnson, charging instead that Baker was involved in a conspiracy to distribute crack cocaine from February 1, 2000, through June 30, 2001, with "other persons, both known and unknown."

Notwithstanding the fact that Count I of the superceding indictment contained no reference to Johnson, the government presented a case against Baker that involved extensive physical evidence and testimony regarding Johnson's activities as the local leader of a crack cocaine conspiracy. The government presented evidence to show that Johnson brought in powdered cocaine from outside the Omaha area, primarily from a source in Phoenix, Arizona. The government also presented evidence to demonstrate that Johnson distributed this cocaine, in both powdered and crack form, through various dealers below him in the Omaha distribution chain. Based on the evidence presented, it is fair to characterize the government's theory of the case as a large conspiracy-the Johnson conspiracy-with Baker as conspirator who received powdered and crack cocaine from Johnson for resale in Omaha.

The evidence against Baker showed the following. Omaha police and an FBI agent (collectively the "Officers") conducted a trash pull at Baker's residence. In his trash, they found marijuana seeds, clear plastic bags, and materials that identified the garbage as Baker's. The clear plastic bags were torn and their tops were tied off. Officers testified that small quantities of drugs are often sold in bags that are ripped and tied-off. The clear plastic bags found in Baker's trash tested positive for cocaine residue. One of the Officers testified that, in his experience, it was common for drug dealers to deal in more than one type of drug.

Officers obtained a search warrant for Baker's home. There they found an unlocked safe under a bathroom vanity off the master bedroom. The safe contained four hundred thirty-six dollars, mostly in one-dollar bills. The safe also contained eleven gold-colored coins. Behind the safe, Officers found a brown paper bag that contained twenty-two individually wrapped bags of marijuana. In the adjacent bedroom, Officers found a small bag of marijuana in the pocket of a pair of men's jeans. On a shelf in the bathroom, Officers found an unregistered.380 automatic pistol that was loaded with a magazine that contained six rounds. In Baker's garage, Officers found several plastic grocery bags that contained cellophane wrap strapped with duct tape. Officers testified that this material was typical wrapping for kilogram-sized bricks of powdered cocaine. This material later tested positive for cocaine residue. Still in the garage, Officers found a marijuana cigarette and a gallon-size zip-lock bag with marijuana residue. Finally, Officers noted that there was a large, older, white, American convertible in the garage.

Officers attempted a controlled buy from Baker using a confidential informant, but Baker did not sell any drugs to the confidential informant.

Cooperating witness Cherie Carter testified that on two occasions she went with Johnson to the barber shop where Baker worked so that Johnson could deliver cocaine to Baker. She stated that on one of these occasions, she handed Johnson two ounces of crack cocaine and watched and waited as Johnson went inside to drop it off. Carter reported that Johnson also identified Baker and Roscoe Wallace as people who dealt cocaine with Johnson. She specifically stated that Johnson said it was safe to deal with Baker.

Baker objected to the admission of Carter's account of Johnson's statements as hearsay. The government argued that Johnson's statements were not hearsay, but rather were statements against Baker by a co-conspirator in furtherance of the conspiracy. See Fed.R.Evid. 801(d)(2)(E). The district court conditionally allowed the statements under the procedure outlined in United States v. Bell, 573 F.2d 1040, 1044 (8th Cir.1978) (permitting the district court to conditionally allow testimony concerning a statement of an alleged co-conspirator subject to later proof, by a preponderance of independent evidence, that the declarant was a coconspirator).

Cooperating witness Roscoe Wallace testified that, on one occasion in the fall of 2000, he paid Baker cash for four and one half ounces of crack cocaine in the parking lot of an ice cream shop. Wallace stated that Baker drove an older, white, Cutlass convertible. Wallace stated that before he bought crack from Baker, he had been dealing with a man named Darrell Howard and a man named Ron Hoskins, but that Howard had been arrested, which forced Wallace to find other sources of drugs. Wallace explained that he tried to buy crack from Hoskins when Hoskins had no crack to sell, so Hoskins set up the meeting between Wallace and Baker. According to Wallace, Hoskins told him that Baker would be selling "the same thing that he [Hoskins] had." According to Wallace, Hoskins called Baker a business partner. Finally, Wallace reported that he also dealt with Johnson and that Johnson claimed to be the source of drugs for Baker and Hoskins. Again, Baker objected to the report of Johnson's statements as hearsay, and the district court conditionally allowed the report of Johnson's statements under the Bell procedure.

Although an initial police report described the sale from Baker to Wallace as a sale of powdered cocaine on credit, Wallace insisted that he paid cash and that the purchase involved crack cocaine. The officer who prepared the initial report regarding Wallace also testified. He explained that the initial report with the reference to powder cocaine resulted from information Wallace volunteered informally at the end of a first interview. This reporting officer said that he took notes of Wallace's ending comments so that he could question Wallace further during a second interview, but that, before he prepared his initial report, he did not fully explore the issues Wallace raised. Finally, the reporting officer testified that when he prepared the initial report, he wrote powder because Wallace initially said only "cocaine," and he assumed Wallace meant powdered cocaine. The reporting officer explained that, in his experience, drug dealers usually use a more specific term if they mean crack cocaine.

The officer's second report-prepared one week after the first report and following a second interview with Wallace-clarified that Wallace described the transaction with Baker as a crack cocaine purchase.

Cooperating witness Darrell Howard testified that he dealt with Baker and Hoskins on multiple occasions between January and June of 2000. He described repeated sales between himself and Baker and Hoskins as "accommodation" sales between dealers. He explained that, when he was out of cocaine, he purchased from Baker and Hoskins, and that when Baker and Hoskins were out, they purchased from him. He described a meeting in his truck when he purchased one half kilogram of powdered cocaine from Baker and Hoskins for resale as powdered cocaine. Howard explained that he handed money to Hoskins and Hoskins handed the money to Baker. Howard then described a second sale of one half kilogram of powdered cocaine to Baker and Hoskins at Hoskins's home. In addition, Howard described two purchases of powdered cocaine from Baker and Hoskins. The first purchase occurred at Hoskins's home and involved one half kilogram. Howard specifically stated that Baker was merely present for this sale and did not handle the money or the cocaine. Howard's second purchase of powdered cocaine from Hoskins and Baker involved the purchase of a full kilogram of powdered cocaine for twenty-five thousand dollars. Howard claimed that this second purchase took place in a car, in a parking lot. Hoskins could not identify the location of the parking lot with certainty. Finally, Howard testified that he purchased powdered cocaine from Hoskins when Baker was not present, but that he never dealt solely with Baker.

Cooperating witness Adrian Murphy testified that he purchased powdered cocaine from Baker for the eight to nine month period immediately preceding Murphy's arrest and incarceration on March 10, 2000. Murphy claimed that he met with Baker a couple of times a week during this period and purchased about two or three ounces of powdered cocaine at each meeting. Murphy testified that he met with Baker at car washes and at the barber shop where Baker worked. Murphy...