U.S. v. Boykin

• Decision Date: 21 April 1993
• Docket Number: No. 92-2125,92-2125
• Citation: 986 F.2d 270
• Parties: 37 Fed. R. Evid. Serv. 25 UNITED STATES of America, Appellee, v. Louis BOYKIN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 270

986 F.2d 270

37 Fed. R. Evid. Serv. 25

UNITED STATES of America, Appellee, v. Louis BOYKIN, Appellant.

No. 92-2125.

United States Court of Appeals, Eighth Circuit.

Submitted Nov. 12, 1992.

Decided Feb. 23, 1993.

Rehearing and Rehearing En Banc

Denied April 21, 1993.

Stephen W. Cooper, St. Paul, MN, argued, for appellant.

Carol Ann Needles, Minneapolis, MN, argued (Thomas B. Heffelfinger and Carol A. Needles, Minneapolis, MN, on the brief), for appellee.

Before JOHN R. GIBSON and MAGILL, Circuit Judges, and BOGUE, ^* Senior District Judge.

MAGILL, Circuit Judge.

Louis Boykin appeals from a jury conviction of several drug charges relating to distribution of crack and powder cocaine, the use of a firearm in connection with a drug trafficking crime, and possession of a firearm by a prior felon. Boykin claims his right to a fair trial was violated by the delayed disclosure of perjury by a witness. He also raises several other claims of error by the district court. ¹ We affirm.

I. BACKGROUND

On April 24, 1991, Gary Pederson, a special agent with the Minnesota Bureau of Criminal Apprehension, acting undercover, approached Roy Prince to purchase powder cocaine from him. Prince indicated that his source was named "Louis" or "Louie," and was sixty-three years old. At Prince's directions, Pederson drove Prince to 1023 Dayton Avenue, in St. Paul, Minnesota. Motor vehicle and license records revealed that appellant Louis Boykin, who was sixty-three years old, lived at this address. Pederson gave Prince $1400 for the cocaine. Prince entered the house with the money, returned to the car, and told Pederson that they would have to return in one hour. When they returned, they parked the car in the alley. Prince left the car and headed toward the house. A few minutes later, Prince returned to the car with one ounce of powder cocaine.

Pederson purchased another ounce of cocaine from Prince on May 7. Prince told Pederson that he would meet his source at a gas station instead of the source's house. Pederson took Prince to the gas station, gave him $1400, and, at Prince's direction, went to Prince's apartment complex. Surveillance officers at the gas station observed Prince get into a vehicle driven by Boykin. Approximately ten minutes later, Prince returned with the cocaine.

On August 27, Mike Wold, a special agent with the Minnesota Bureau of Criminal Apprehension, met Prince and arranged another purchase of cocaine. After Prince placed a call to his source, Wold drove Prince to the same gas station and gave Prince $3100. Wold and another agent observed Prince enter a vehicle driven by Boykin. Boykin and Prince drove to Prince's apartment complex, followed by Wold. Prince left Boykin's vehicle, entered Wold's, and handed Wold approximately two ounces of cocaine.

Wold met with Prince again on August 29 to purchase two ounces of crack cocaine. Prince used Wold's cellular phone to call Louis, using the number 644-3128, which is Boykin's home telephone number. Wold gave Prince $3100 and dropped him off at the Elks Club. While waiting for Prince to return to the vehicle, Wold observed Boykin approach the Elks Club. A few minutes later, Prince returned to Wold's car with approximately two ounces of crack cocaine.

On September 5, Wold met with Prince again to arrange another purchase of crack cocaine. Prince entered Wold's vehicle and called Louis, again using 644-3128. Wold drove Prince to the area where he was to meet Louis and gave him $3100.

Meanwhile, on September 5, surveillance officers observed Boykin leave his house, carrying something in his hand. He entered his vehicle and left the area, followed by surveillance officers in an unmarked car. Other officers in a marked squad car activated the red lights on their car and pulled Boykin over. One of the police officers approached Boykin's vehicle and attempted to get Boykin to leave his vehicle. Boykin drove off, dragging the officer thirty-five feet, and a high speed chase ensued. During the chase, a special agent observed Boykin's arm go out of the window two times.

After Boykin finally was stopped and taken into custody, several items were found on his person and seized. These items included a set of keys, a drivers license listing 1023 Dayton Avenue in St. Paul as Boykin's residence, $3500 in cash, and an electronic digital paging device. Surveillance officers retraced the path of the chase. In one area where Boykin had put his hand out of the window, the officers found two dry and clean baggies containing approximately two ounces of crack cocaine.

Boykin's residence was searched that evening, using keys seized from Boykin to gain access. In the kitchen and living room, agents found materials used in drug distribution, such as baggies; test tubes; inositol, which is a cutting agent for cocaine; a digital gram scale; and a colander and pie tin containing cocaine residue. They also found 82.4 grams of powder cocaine, 7.3 grams of crack cocaine, and more than $1400 in cash. Upstairs in the master bedroom, agents discovered a loaded .357 magnum revolver in a box containing men's clothing and a loaded .357 magnum revolver between the box spring and mattress. A .22 revolver was on a shelf in the master bedroom closet, along with ammunition for all three guns. Also found in the master bedroom was a Department of Treasury check made out to Louis Boykin, 1023 Dayton Avenue. The men's clothing in the bedroom was consistent with the size Boykin wore, and other evidence also indicated Boykin occupied the master bedroom.

Boykin and Prince were both charged with conspiracy to distribute crack cocaine and powder cocaine (Count I); aiding and abetting in the distribution of crack cocaine and powder cocaine (Count II, III, IV, V); and possession with the intent to distribute crack cocaine (Count VI). Boykin also was charged with an additional count of possession with the intent to distribute crack cocaine and powder cocaine (Count VII); the use of a firearm in connection with a drug trafficking crime (Count VIII); and possession of a firearm by a prior felon (Count IX).

Pursuant to a plea agreement, Prince testified against Boykin on behalf of the government, and pled guilty to Counts I and VI. Boykin was convicted by a jury on all counts except Count V, distribution of crack cocaine on August 29, 1991. Boykin was sentenced to 250 months imprisonment to run concurrently on Counts I, II, III, IV, VI, VII, and IX, and 60 months imprisonment to run consecutively on Count VIII. Boykin's conviction and sentence is the subject of this appeal.

II. DISCUSSION

A. Firearm Related Charges

Boykin argues that the evidence introduced at trial was insufficient to sustain the firearm related charges. We view the evidence presented in the light most favorable to the government, and uphold the verdict if there is substantial evidence to support it. United States v. Schubel, 912 F.2d 952, 955 (8th Cir.1990). The standard to be applied in determining the sufficiency of the evidence is a strict one, and the finding of guilt should not be overturned lightly. Id.

1. Felon in Possession Charge

Boykin contends that the government did not present sufficient evidence that he possessed the firearms found in the search of his home, and therefore did not prove that he violated 18 U.S.C. § 922(g) by being a felon in possession of a firearm.

A conviction for violating § 922(g) may be based on constructive or joint possession of the firearm. See United States v. Woodall, 938 F.2d 834, 837-38 (8th Cir.1991). Constructive possession of the firearm is established if the person has dominion over the premises where the firearm is located, or control, ownership, or dominion over the firearm itself. See id. at 838. Constructive possession can be established by a showing that the firearm was seized at the defendant's residence. United States v. Apker, 705 F.2d 293, 309 (8th Cir.1983), cert. denied, 465 U.S. 1005, 104 S.Ct. 996, 79 L.Ed.2d 229 (1984).

The evidence introduced at trial demonstrated that the house where the firearms were seized was Boykin's residence, and Boykin admitted at the time of his arrest that he lived in that house. Boykin's personal belongings were in the bedroom where the firearms were located, and at trial, Boykin's daughter referred to the bedroom in a manner indicating that Boykin and his wife shared it. Boykin's wife claimed to own the firearms; however, ownership is irrelevant to the issue of possession. United States v. Hernandez, 972 F.2d 885, 887 (8th Cir.1992). We find that the evidence was sufficient to establish constructive possession and supports the jury's verdict on this charge.

2. Use of a Gun in Connection With a Drug Trafficking Crime Charge

Boykin also argues that the government did not introduce sufficient evidence that he "used" firearms in connection with a drug trafficking crime in violation of 18 U.S.C. § 924(c).

The government shows use of a firearm under § 924(c) if they show "presence and availability in light of the evident need." United States v. LaGuardia, 774 F.2d 317, 321 (8th Cir.1985). The government does not need to show that the defendant was in actual physical possession of the firearm, or that he brandished or discharged it. United States v. Watson, 953 F.2d 406, 409 (8th Cir.1992). This court often has noted the utility of firearms to drug dealers. See, e.g., United States v. Randle, 815 F.2d 505, 508 (8th Cir.1987) (firearms used by drug dealers for protection); LaGuardia, 774 F.2d at 321 (firearms used by drug dealers for protection or intimidation).

The search of Boykin's home revealed not only the firearms and ammunition, but a distributable amount of powder cocaine, crack cocaine, and drug paraphernalia used in distribution. Additional evidence regarding the drug transactions indicated Boykin operated his drug business out of his home. The drug related evidence was not discovered in the same room as the firearms, but this is not...