U.S. v. Bennett

• Decision Date: 25 February 1992
• Docket Number: 91-2169,Nos. 91-2010,s. 91-2010
• Citation: 956 F.2d 1476
• Parties: 35 Fed. R. Evid. Serv. 63 UNITED STATES of America, Appellee and Cross-Appellant, v. James BENNETT, Appellant and Cross-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1476

956 F.2d 1476

35 Fed. R. Evid. Serv. 63

UNITED STATES of America, Appellee and Cross-Appellant, v. James BENNETT, Appellant and Cross-Appellee.

Nos. 91-2010, 91-2169.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 14, 1991.

Decided Feb. 25, 1992.

John R. Wylde, Jr., Minneapolis, Minn., for appellant/cross-appellee.

Douglas Ray Peterson, Minneapolis, Minn., argued (Thomas B. Heffelfinger, on brief), for appellee/cross-appellant.

Before LAY ^*, Chief Judge, ARNOLD ^**, Circuit Judge and STUART ^***, Senior District Judge.

STUART, Senior District Judge.

A jury found the defendant, James Bennett, guilty of possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) (Count I); use of a firearm during and relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c) (Count II); and cocaine conspiracy in violation of 21 U.S.C. § 846 (Count III). The trial court reserved ruling on defendant's motion for judgment of acquittal on the conspiracy count. On the day of sentencing he granted that motion and sentenced Bennett to a 57 month term on Count I and a consecutive 60 month term on Count II with a special assessment of $100 and a five year term of supervised release.

The defendant appealed alleging (1) that the evidence on Counts I and II was insufficient to sustain the convictions; (2) that the Court's restrictions on the defendant's cross-examination of an officer regarding the reliability of an informant violated his rights under the Fifth and Sixth Amendments to the United States Constitution; and (3) that he is entitled to a new trial free of evidence from an alleged co-conspirator because the trial court ruled that there was insufficient evidence to sustain a conviction on the conspiracy count.

The government cross-appealed claiming that the trial court erred in granting a judgment of acquittal on Count III and that the case should be remanded for reinstatement of the verdict and resentencing.

We affirm on the defendant's appeal and reverse on the government's appeal.

A judgment entered upon guilty verdicts of the jury "must be upheld if, viewing the evidence in the light most favorable to the government and giving the government the benefit of all reasonable inferences, we conclude that a reasonable fact-finder could have found guilt beyond a reasonable doubt." United States v. Maejia, 928 F.2d 810, 812 (8th Cir.1991). After a thorough review of the record, we summarize the evidence in the light most favorable to the government and the jury verdict of guilty as follows.

FACTS

This cocaine investigation began with an informant known as "Yeager" arranging for the purchase of cocaine from Mercelle Burkhalter on November 9, 1989. Burkhalter, driving a Volvo, arrived at a Target parking lot in North Minneapolis at the appointed hour of 4:00 p.m.

After a brief meeting with the informant, Burkhalter drove by herself directly to West Broadway. The surveillance officers, planning to follow her to her source, watched her stop at 2044 Broadway and then spend a considerable amount of time in a barber shop down the street where defendant, James "Dickie" Bennett, claimed to work as the "Shoe Shine King." Burkhalter left the barber shop at 4:25 p.m., picked up the informant, and drove directly to 4050 Lyndale Avenue North, the building where Bennett maintains apartment 101. Burkhalter parked in the rear of the building and went in the back door.

Surveillance officers next observed Burkhalter and Grady Moss step out of apartment 101 into the building hallway. While they were talking outside of the open apartment door, they noticed Officer Peter Jackson looking at them through the building's front glass door. The buzzer on the security system near Officer Jackson went off and Moss came down and turned it off. He went back up and continued to talk to Burkhalter. After Burkhalter and Moss reentered apartment 101, Officers Jackson and Michael Strauss noticed someone looking out of the apartment window. Neither officer could tell who that person was.

Minutes later, Burkhalter left through the building's rear entrance and rejoined the informant in her Volvo. By removing his hat--a pre-arranged signal--the informant alerted the surveillance officers that Burkhalter had obtained the cocaine. Officers followed Burkhalter's Volvo to an intersection near West Broadway. A number of undercover officers and uniformed officers stopped Burkhalter at around 4:55 p.m. Burkhalter had a brown paper bag filled with cocaine stuffed in her pants. One inner package contained seven baggies of cocaine totalling 195.7 grams at a strength of 84%. This quantity corresponded with a seven ounce drug sale reflected in handwritten notes found later in apartment 101. Another inner package contained 14.67 grams of cocaine at a strength of 80% in two baggies. Burkhalter's coin purse also contained 2.76 grams of crack cocaine at a strength of 89%.

While Burkhalter was being followed, two narcotics officers moved into the alley back of 4050 Lyndale. At approximately 4:57 p.m., Officers Dunn and Hancock met Grady Moss who was driving out of the alley in his white Oldsmobile. They arrested Moss, searched his car and found a pager, $350 in cash, and a set of keys.

Meanwhile, Burkhalter alarmed the arresting officers when she yelled something to a passerby at the West Broadway arrest site. In response, some of the officers moved back to the 4050 Lyndale Avenue North apartment location to protect their plans to execute a search warrant. A police intern, riding in one of the returning undercover vehicles, spotted someone looking out the window for a second time. Llewellyn McGary was also seen sprinting up to the apartment building at around 5:10 p.m. Upon arriving at the building, McGary used the buzzer and was let into apartment 101. McGary departed quickly, but found himself under arrest in the front of the building at 5:12 p.m. A search of McGary revealed nothing of significance--no pagers, no cash, no keys. While arresting McGary, two officers saw someone look out of the apartment window for a third time.

At that point, Officer Jackson moved back to his surveillance location at the glass front door of the building. It was nightfall and the lights were on in the apartment building hallway. At approximately 5:15 p.m., Officer Jackson saw a person, later identified as Bennett, leaving apartment 101. Before departing down the hall, Bennett used a key to lock the apartment door.

Officers Dunn and Hancock, with the police intern watching nearby, were at the rear apartment door trying the keys obtained from Grady Moss. The Moss keys did not work. While the officers were trying the keys, Bennett came down the hallway toward the back door. Bennett let the officers in the building. They did not know that he had been in apartment 101. Later that day one of the officers, as well as the police intern, identified Bennett as the person who came out the back door. The police intern observed Bennett get into another Oldsmobile, this one bearing license number 325 CLT. The government proved that the automobile was registered to Jacqueline Freeman, the same name linked to a pager seized from Bennett on September 15, 1990, and a pager seized from Bennett when arrested on September 20, 1990.

The officers on the scene immediately knocked on the door of apartment 101. When no one responded, they kicked the door in and entered to secure the apartment. No one was found inside. A search warrant was obtained. The searching officers discovered a one-bedroom apartment with a living area and kitchen. The refrigerator contained some fast food, over 125 grams of 80% strength cocaine in the crisper, and $2,700 of United States currency in its butter dish. The kitchen cabinets near the stove contained various cocaine quantities packaged in paper bags and ziplock bags, like the cocaine found on Burkhalter. The photographs of the kitchen cabinets showed that they contained little besides one set of baggies with 55.75 grams of 83% cocaine, a second set with 111.35 grams of 87% strength cocaine, a third set with 83.79 grams of 84% strength cocaine, and a fourth set with 6.87 grams of 75% strength cocaine. One of the cabinets also contained a gram scale.

In the bedroom was a walk-in closet containing some men's clothes and men's shoes. On a shelf in the closet, the searching officers found a shoe box containing a .41 magnum revolver loaded with hollow point bullets. The closet was near a bed and a dresser. The dresser, positioned between the bed and closet, contained approximately $675 in cash.

Documents found in the apartment included: Bennett's lease covering November 1989; a US West phone bill in his name covering November 1989; a Star Tribune newspaper bill in his name; a photograph of Bennett; a Northern States Power Company bill in his name; money orders and rent receipts in defendant's name and in the name of Jacqueline Freeman; James Bennett's birth certificate; a Globe Cleaners receipt for "Dick", the defendant's alias; and a car rental agreement in Bennett's name. Next to the documents the officers also found a pager registered to Judy Schleismann. Schleismann testified that she obtained the pager for the defendant, whom she knew as "Dick Callahan". He would pay her in cash to cover the pager bills.

While the officers were executing the search warrant, numerous phone calls came in. Officer Michael Fossum talked to two of the callers. The first one asked for "Dickie" and ordered one and one-half ounces of cocaine. The second caller identified herself as "Pookie", asked for "Dickie", and ordered one-half ounce of cocaine. Notes were found in the apartment which mentioned "Pookie" and her phone number. Besides the notes corresponding to the seven ounces of cocaine seized on Burkhalter, other notes were found. An expert testified that they reflected one to three ounce cocaine deals, with one note showing...