U.S. v. Billingsley, 98-1817

• Decision Date: 19 November 1998
• Docket Number: No. 98-1817,98-1817
• Citation: 160 F.3d 502
• Parties: UNITED STATES of America, Appellee, v. Macon LeJoseph BILLINGSLEY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 502

160 F.3d 502

UNITED STATES of America, Appellee, v. Macon LeJoseph BILLINGSLEY, Appellant.

No. 98-1817.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 19, 1998.

Decided Nov. 19, 1998.

Kevin M. O'Brien, Minneapolis, MN, argued, for appellant.

Michael W. Ward, Assistant U.S. Attorney, Minneapolis, MN, argued (Alison E. Vander Vort, on the brief), for appellee.

Before HANSEN, LAY, and MURPHY, Circuit Judges.

LAY, Circuit Judge.

Macon LeJoseph Billingsley was tried and convicted of one count of possession of cocaine base with intent to distribute and one count of possession of heroin with intent to distribute in violation of 21 U.S.C. § 841.

The district court ¹ sentenced Billingsley to 130 months, which included a two-level sentence enhancement for obstruction of justice.

BACKGROUND

On April 3, 1997, the police obtained a warrant to search Macon Billingsley's person and vehicle for drugs. Several police officers followed Billingsley to a Burger King parking lot and ordered him out of the car. Although no drugs were found on Billingsley's person or in his car, one of the officers saw Billingsley throw a small bag out of the car, which was later proven to be .8 grams of heroin. Subsequently, the officers obtained a warrant to search the apartment Billingsley shared with his wife. The police found several pieces of Billingsley's identification and medication for his diabetes. Inside Billingsley's diabetic syringe kit, the officers found 11.8 grams of crack cocaine and some heroin. More drugs were found throughout the house. They also found a narcotic cutting agent, a scale, packaging materials, a police radio scanner, and a pager.

After receiving Miranda warnings, Billingsley admitted that the drugs were his and asked to cooperate with the police. Billingsley was conditionally released to permit his cooperation, but was instructed to have daily contact with the police. Sentencing Hearing at 4-5, Trial Tr. I at 137. Billingsley allowed the police to set up and tape various conversations he had with other drug dealers, including a conversation with his heroin supplier, Eric Stiles. In late April 1997, after communications between Billingsley and the police broke down, Billingsley left the state without notifying the officials. He was located in Washington, D.C., on July 30, 1997, after being arrested on separate charges.

Despite his original agreement to cooperate, Billingsley pled not guilty and was tried in the United States District Court for the District of Minnesota. During the trial, a special agent for the Hennepin County Sheriff's Office was allowed to testify about the contents of the taped conversation between Billingsley and Stiles. The jury found Billingsley guilty of both counts and the trial court sentenced him to 130 months, enhancing his offense level by two levels for obstruction of justice.

Billingsley challenges (1) the district court's admission of the agent's testimony about the contents of the taped telephone conversation he had with Eric Stiles; (2) the sufficiency of the evidence on the crack cocaine count; (3) and the two-level sentencing enhancement for obstruction of justice. We affirm.

DISCUSSION

A. The Taped Conversation

Billingsley contends that the district court erred when it permitted an agent to testify to the contents of a taped conversation between Billingsley and his heroin supplier, Eric Stiles. During trial, the court ruled that the government could play the tape, but gave a limiting instruction to the jury that the evidence only went to knowledge and intent. Trial Tr. I at 116-20. The tape machine, however, was not functioning properly at trial, so the court allowed an agent to paraphrase what was stated in the conversation. The agent was also allowed to interpret the code words in the conversation, opining that Billingsley was referring to marijuana transactions and stood to make seventy or eighty thousand dollars. Trial Tr. III at 97-98.

Billingsley argues that these statements should never have been admitted for three reasons. First, Billingsley contends that the agent's testimony was hearsay. Second, Billingsley argues that the statements are extrinsic and inadmissible character evidence under Fed.R.Evid. 404(b). Finally, Billingsley argues that the statements he made during the conversation with Stiles were made pursuant to a cooperation agreement and should be excluded under Fed.R.Evid. 403.

First, Billingsley's statements were not hearsay because they constituted admissions against a party. Fed.R.Evid. 801(d)(2). Billingsley argues that his taped statements cannot be an admission because he was only saying what the police asked him to say. We disagree. The Seventh Circuit was faced with a similar situation in United States v. Hubbard, 22 F.3d 1410 (7th Cir.1994), cert. denied, 513 U.S. 1095, 115 S.Ct. 762, 130 L.Ed.2d 660 (1995). In Hubbard, a defendant's taped post-arrest statements to a co-conspirator, made during cooperation with the police, were admissible as voluntary admissions. Hubbard, 22 F.3d at 1417. The court acknowledged Hubbard's argument "that Rule 801(d)(2)(A) does not apply to [the defendant's] statements because statements under Rule 801(d)(2)(A) must be a 'party's own statement' and his statements were made at the bequest of the police and were, therefore, not his own." Id. at 1417 n. 2. The court stated, however, that this was nothing more than a voluntariness argument and rejected it because "this is not a case where the law enforcement officials overbore [the defendant's] will; rather, he participated willingly in an effort to improve his own situation." Id. at 1417. Like the situation in Hubbard, Billingsley's statements in his conversation with Eric Stiles were made voluntarily. Therefore, Billingsley's statements are admissible as admissions.

Second, we reject the argument that the evidence of Billingsley's statement should have been excluded under Fed.R.Evid. 404(b). Rule 404(b) only applies to extrinsic evidence. United States v. Heidebur, 122 F.3d 577, 579 (8th Cir.1997). The part of the conversation at issue in this case concerns the April 3, 1997, drug deal which was the basis for the indictment. Therefore, evidence of the statements pertaining to the drugs found by the police on April 3, 1997, are intrinsic and not excludable under Rule 404(b).

We also reject Billingsley's final argument that any evidence obtained while he cooperated with the police should have been excluded under Fed.R.Evid. 403. ² Rule 403 provides the district court the ability "to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice." United States v. Guerrero-Cortez, 110 F.3d 647, 652 (8th Cir.1997). We reverse "a district court's decision under the Rule 403 balancing test ... only if there was a clear abuse of discretion." United States v. Davis, 154 F.3d 772, 780 (8th Cir.1998). We find that the district court did not abuse its discretion in this case. ³

B. Sufficiency of the Evidence for the Cocaine Base Count

Billingsley contends that there was insufficient evidence for the jury to find him guilty of possession with intent to distribute crack cocaine. ⁴ He points out that there were no witnesses that testified seeing him possess or sell cocaine base. Further, Billingsley argues that although there were eleven grams of cocaine base found in his apartment, he did not have exclusive control over the apartment. His wife and her friend also had access, and his wife testified that she had been using crack the day of the search. Finally, Billingsley argues that the quantity of cocaine base found in the apartment is entirely consistent with his wife's personal use. We are unpersuaded by his arguments. When viewed in the light most favorable to the verdict, we find there was sufficient evidence to support a guilty verdict on Billingsley's possession with intent to distribute cocaine base.

There is ample evidence that Billingsley possessed the cocaine base. At trial, Billingsley's wife testified that he possessed the cocaine base and a police officer recounted Billingsley's voluntary confession to that effect. Furthermore, the cocaine base was found in Billingsley's diabetic syringe kit which also contained pieces of his identification and medication. Most importantly, Billingsley admits that he possessed the heroin which was also found in the syringe kit. From this evidence, the jury could have properly found that Billingsley possessed the cocaine base.

There was also sufficient evidence of Billingsley's intent to sell the cocaine base. The government offered testimony of a taped conversation between Billingsley and his supplier to show intent and knowledge of the drug trade. ⁵ Even without this conversation, there is sufficient circumstantial evidence that Billingsley was selling the cocaine base. The police found a cutting agent, scales, and wrapping supplies in Billingsley's apartment. Courts have recognized that such scales and devices are "tools of the trade for drug dealers." United States v. Ford, 22 F.3d 374, 383 (1st Cir.1994). Such "tools of the trade" are inconsistent with personal use. The quantity of drugs found in the defendant's apartment also supports an intent to sell. This court has held that "intent to distribute a controlled substance may be established by circumstantial evidence, including possession of a large quantity of controlled substance...." United States v. Buchanan, 985 F.2d 1372, 1377 (8th Cir.1993). Testimony was presented that the volume of crack cocaine possessed by the defendant would have represented over 100 dosage units and had a street value of approximately $1,100 to $1,200. Trial Tr. I at 142-43. Furthermore, the crack cocaine was packaged into four separate units. Finally, the jury did not find Billingsley's denial of his intent to sell credible. Faced with this evidence, the jury could have properly found that Billingsley...