U.S. v. Beeks, PLAINTIFF-APPELLEE

• Citation: 224 F.3d 741
• Decision Date: 14 December 1999
• Docket Number: DEFENDANT-APPELLANT,No. 99-2833,PLAINTIFF-APPELLEE,99-2833
• Parties: (8th Cir. 2000) UNITED STATES OF AMERICA,, v. BABATUNDE NATHANIEL BEEKS, Submitted:
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 741

224 F.3d 741 (8th Cir. 2000)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. BABATUNDE NATHANIEL BEEKS, DEFENDANT-APPELLANT.

No. 99-2833

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: December 14, 1999

Filed: September 6, 2000

Appeal from the United States District Court for the Southern District of Iowa.

Before McMILLIAN, John R. Gibson, and Magill, Circuit Judges.

John R. Gibson, Circuit Judge.

Babatunde Beeks appeals from his conviction on one count of conspiracy to distribute crack cocaine. He alleges that the district court erred in failing to grant him a new trial, to which he believes he was entitled on any of three grounds. First, Beeks claims that his request for a mistrial should have been granted due to prosecutorial misconduct, which he alleges occurred when the prosecutor violated a pretrial ruling that he not attempt to impeach Beeks with a prior conviction without permission. He further contends that the impeachment was itself improper because he did not testify. Second, Beeks alleges that this same instance of prosecutorial misconduct, coupled with a last minute production of letters from a testifying coconspirator that spoke of a plan among several coconspirators for getting Beeks convicted, resulted in a violation of his due process rights. Finally, he alleges that the government failed to introduce sufficient evidence to support his conviction. We are persuaded that the district court erred in refusing to grant a mistrial following the prosecutor's inappropriate inquiry on cross-examination of a defense witness, and that Beeks should be afforded a new trial.

The conspiracy was charged as existing from October 1997 to November 1998, within the Southern District of Iowa and elsewhere. Evidence of Beeks's involvement came primarily from eight other members of the conspiracy, all of whom had reached plea agreements with the government prior to his trial, but none of whom had been sentenced.¹ The crack cocaine that was distributed in the Des Moines area by members of the conspiracy came from Chicago, as did Beeks. In Des Moines, the "head guy" was Deryke Holton. The conspiracy was uncovered when Sean Lovelady began cooperating with the government in the summer of 1998, after Lovelady's car was stopped and found to have cocaine. Lovelady made a controlled payment to Holton, which led to Holton's eventual cooperation.

The testimony paints Beeks as Holton's sidekick, as the two were frequently in each other's company when drugs and/or money were changing hands. The government repeatedly asked several of the coconspirators to identify photographs that showed the two of them together, or that showed Beeks at Holton's house. While the government clearly used evidence of Beeks's association with Holton to bolster its case, it also called some witnesses who spoke of Beeks's own criminal conduct.

According to his coconspirators, Beeks's first acts in furtherance of the conspiracy occurred in November 1997. He was said to have traveled from Chicago to Des Moines by bus carrying 18 ounces of crack and a bottle of "Super B," which he had learned to use in cooking powder cocaine to cause swelling or "blowing up" of the resulting crack. Craig Hunt testified that he began buying crack from Beeks during that same month for distribution in Des Moines. Hunt, who described Beeks as one of his Chicago sources, estimated that he bought crack from Beeks between ten and fifteen times over the next seven months. According to Corey Brown, Holton and Beeks began to supply him with crack in January 1988, which Brown then sold again. Daryl Saunders testified that he first got crack from Beeks in February 1998, with Beeks agreeing to "front" it, meaning that he gave Saunders the crack and allowed him to pay for it later. Saunders paid Beeks $2500 about a week later, after he had sold the two and a half ounces of crack. Saunders got three and a half ounces of crack from Beeks the next month, which was partially fronted for $1500, with Saunders paying Beeks an additional $2000 a week later.

Vanda Terrell was another of the individuals who brought crack from Chicago to Des Moines for distribution. Terrell testified that Beeks sometimes assisted in the transportation and that he also sold half a kilo of cocaine to Terrell in Chicago, which Terrell then converted to crack. Once in Des Moines, Terrell socialized with Beeks and others after they sold the crack they had brought.

The government presented no physical evidence of Beeks's involvement in the conspiracy, and none was discovered in a search that had been conducted of Holton's house. Similarly, the law enforcement witnesses who testified provided no evidence of Beeks's involvement in the conspiracy. Beeks presented several witnesses, including his mother and her husband. Among his witnesses was the human resources manager of Corporate Express Delivery Systems, where Beeks was employed from the end of July until early November 1998. Defense counsel elicited from this witness the dates of Beeks's employment, the position he held (driver), and the requirement of only a standard driver's license for the position. On cross-examination, the prosecutor asked a series of questions about the job application form that appeared in Beeks's file, over defense counsel's objections. The series concluded with the following exchange:

Q: Now, in the background information of Mr. Beeks, do you ask if a person who's making application has a criminal record?

A: Yes, we do.

Q: And is that an important question that you take seriously at your company?

A: Yes, we do.

Q: If I mark this portion of the application Government's Exhibit 41, you specifically asked that question in the application; is that correct?

A: That's correct.

Q: And could you tell the Jury what the question is that you asked.

Defense counsel: Objection, Your Honor, that's hearsay and beyond the scope of the direct examination. Move to take the matter up outside the presence of the jury.

The Court: Overruled. You can do that when she's done.

Q: What's the question that is on the application?

A: "Have you ever been convicted of a felony or been involved as a defendant in a criminal proceeding in which the outcome has been anything other than acquittal or the dropping of charges?"

Q: And how is the answer marked on that application?

Defense counsel: Objection, that calls for hearsay, Your Honor.

The Court: Sustained.

The jury was then excused for the day, and defense counsel moved for a mistrial. The district court denied the motion, admonished the prosecutor not to make "any further reference to any criminal history," and told him "I want to know how we're going to get out of this."² With the agreement of the parties, the court excused the witness.

The following morning, defense counsel filed a written motion for a mistrial, which was again denied. Defense counsel then asked for a curative instruction, consisting of telling the jury that the answer to the prosecutor's last question would be "no," and that he had objected because the prosecutor improperly asked the question. The prosecutor opined that the question was not inappropriate, but that a curative measure would be to have the question and answer stricken and to admonish the jury to disregard it. The court ultimately instructed the jury that the answer to the prosecutor's last question was "no," and that he had excused the witness.

Another issue arose that morning. The prosecutor presented to the court and to defense counsel copies of two letters that had been intercepted by a Polk County Jail employee, given to the U.S. Marshals, and then turned over to him. Vanda Terrell had written the letters to individuals in Chicago, and the originals had been mailed from the Polk County Jail, where Terrell and the other witnesses were incarcerated. The letters spoke of a "plan" coming together as Beeks's trial began, a "winning team," and forming a "sole train line" (sic) on Beeks. Terrell wrote that he had yet to testify, but that he was ready with an obviously prepared answer as to what was promised to him in return for his cooperation.

Defense counsel affirmatively stated that he did not want a continuance to deal with the matter, but this was said when he was still arguing in favor of a mistrial, which he believed was further warranted by the potential collaboration between the witnesses. Following the court's continued denial of a mistrial, defense counsel stated that he would want to call some of the government's witnesses to inquire into their opportunity to discuss their testimony with each other. He then re-called Norman, McCarthren, Williamson, and Terrell. Each admitted having been housed or transported with other witnesses, but all of them denied having any substantive conversations about their trial testimony.

The jury returned a guilty verdict, and the district court denied Beeks's Motion for New Trial and Motion for Judgment of Acquittal. Beeks was later sentenced to 262 months.

I.

Beeks argues that he should have been granted a mistrial following the ultimate question the prosecutor posed to witness Perkins. He argues that the question was not proper under Rule 609 of the Federal Rules of Evidence, and that the question contravened the district court's pretrial ruling in limine that the prosecutor not inquire into a prior conviction without permission. We review the district court's denial of a defendant's motion for a mistrial for abuse of discretion. See United States v. Gladfelter, 168 F.3d 1078, 1082 (8th Cir.), cert. denied, 120 S. Ct. 205 (1999).

Beeks filed the motion in limine because the district court had yet to determine whether his only prior charge, one brought in Illinois, constituted a felony which may be used for impeachment, or whether it was more akin to a deferred judgment. The district court granted the motion, and the prosecutor indicated that he would seek reconsideration if Beeks...