U.S. v. Cook, 356 F.3d 913 (Fed. 8th Cir. 1/30/2004), 03-1251.

• Decision Date: 30 January 2004
• Docket Number: No. 03-1251.,03-1251.
• Citation: 356 F.3d 913
• Parties: UNITED STATES of America, Appellee v. Tracy A. COOK, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

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356 F.3d 913

UNITED STATES of America, Appellee v. Tracy A. COOK, Appellant.

No. 03-1251.

United States Court of Appeals, Eighth Circuit.

Submitted: October 20, 2003.

Filed: January 30, 2004.

Order Denying Petition for Rehearing

and for Rehearing En Banc March 18, 2004.

The petition for rehearing en banc is denied. The petition for rehearing by the panel is also denied.

Donald L. Schense, argued, Bellevue, NE, for appellant.

Robert F. Cryne, Asst. U.S. Atty., argued, Omaha, NE, for appellee.

Before RILEY, BEAM, and SMITH, Circuit Judges.

RILEY, Circuit Judge.

Tracy Cook (Cook) was charged with and convicted of two counts of possession with intent to distribute cocaine base and one count of conspiracy to possess with intent to distribute cocaine base. 21 U.S.C. § 841(a)(1), (b)(1), 846 (2000). The district court¹ sentenced Cook to 360 months imprisonment on the first two counts, to run concurrently with a life sentence on the conspiracy count. Cook raises numerous issues on appeal. We affirm.

I. BACKGROUND

On June 1, 2001, Omaha police officers were conducting surveillance on a wanted man. During the surveillance, the officers saw the wanted man and two other men enter a car and drive away. Cook was later identified as the driver. The police followed in their car. When Cook observed the police following him, he led them on a high-speed chase. The chase concluded when Cook stopped his car and ran, eventually entering a house occupied by a woman and her seven children. These people were strangers to Cook and were frightened by the intrusion. A police officer apprehended Cook at gun point when Cook walked out of a bathroom in the home. The police later found a bag containing 9.3 grams of crack cocaine in the bathroom. Before the police said where the bag was found or described its contents, Cook excitedly said, "You can't charge me with that, you found that in the bathroom and I was arrested in the living room."

Based on Cook's June 1, 2001 conduct, the government later charged Cook with possession with intent to distribute cocaine base, and issued an arrest warrant for him. On September 6, 2001, the police arrested Cook, strip searched him, and discovered a bag containing 4.2 grams of crack cocaine. The government thereafter charged Cook with (1) possession with intent to distribute cocaine base on June 1, 2001, (2) possession with intent to distribute cocaine base on September 6, 2001, and (3) conspiracy to distribute and possession with intent to distribute 50 grams or more of cocaine base from on or about January 1, 2000, through September 6, 2001.

Nearly seven weeks before trial, the government filed an Information to Establish Prior Convictions. At trial, Cook testified about his several prior felony convictions. Also during Cook's trial, the government introduced the testimony of Patrick Watson (Watson), Gregory Figures (Figures), Jimmy Swain (Swain), and William Hawkins (Hawkins). These four witnesses testified they saw Cook with crack cocaine on numerous occasions, bought crack cocaine from Cook, sold crack cocaine to Cook, and bought and sold crack cocaine with Cook. Cook's counsel tried to paint the adverse witnesses as untrustworthy felons seeking leniency for testifying against Cook. The jury found Cook guilty on all counts.

At Cook's sentencing hearing, the district court held Cook responsible for 694 grams of crack cocaine. Finding Cook's actions on June 1, 2001 endangered people, the district court applied a two-level obstruction of justice enhancement. The district court also found Cook had two prior felony drug convictions. Based on its findings, the district court sentenced Cook to 360 months imprisonment on the first two counts, to run concurrently with a life sentence on the conspiracy count.

On appeal, Cook's counsel argues (1) the district court improperly enhanced Cook's sentence based on two prior felony drug convictions, (2) the district court improperly applied an obstruction of justice enhancement, and (3) Cook's conviction was not supported by sufficient evidence. By way of a pro se supplemental brief, Cook also alleges (1) he was denied a competency hearing, (2) he was not properly notified of the government's intent to use prior convictions to enhance his sentence, (3) he was denied a fair trial when the government introduced five prior convictions, (4) he was denied the effective assistance of counsel, and (5) sufficient evidence did not support his conspiracy conviction.

II. DISCUSSION

A. Prior Convictions

Cook contends the district court improperly enhanced Cook's sentence based on two prior felony drug convictions. We review de novo the district court's use of two of Cook's prior convictions for enhancement purposes. United States v. Stallings, 301 F.3d 919, 920 (8th Cir. 2002). Although Cook argues in his pro se supplemental brief he was not notified of the government's intent to use two of his prior convictions to enhance his sentence, his counsel correctly acknowledges the government gave proper notice before trial when it filed an Information to Establish Prior Convictions under 21 U.S.C. § 851(a)(1) (authorizing increased punishment for prior convictions if notice provided before trial). Thus, Cook received proper notice.

Cook also contends his sentence cannot be enhanced, because he was convicted and sentenced on the same day for both prior felony convictions. During trial and at sentencing, Cook admitted he was convicted of two separate drug offenses on October 10, 1997. Specifically, Cook was convicted of an April 9, 1997 possession of cocaine offense, and an October 7, 1997 possession of cocaine offense. It does not matter that Cook was convicted and sentenced on the same day. What matters is he was convicted of two separate criminal episodes. See United States v. Gray, 152 F.3d 816, 821-22 (8th Cir. 1998) (holding a sentence enhancement for two prior convictions must be based on separate criminal episodes). Thus, we hold the district court properly used the two prior convictions for possessing cocaine to enhance Cook's sentence. See 21 U.S.C. § 841(b)(1)(A) (mandating life imprisonment for a person convicted of two prior felony drug convictions).

B. Sentence Enhancement

Cook maintains the district court's decision to enhance Cook's sentence for obstructing justice (i.e., reckless endangerment during flight) was clearly erroneous, as it was based on unreliable evidence. We review the factual findings underlying a sentence enhancement for clear error. United States v. Tirado, 313 F.3d 437, 440 (8th Cir. 2002).

The Sentencing Guidelines provide a two-level enhancement "[i]f the defendant recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer." U.S.S.G. § 3C1.2 (2001). Reckless means "a situation in which the defendant was aware of the risk created by his conduct and the risk was of such a nature and degree that to disregard that risk constituted a gross deviation from the standard of care that a reasonable person would exercise in such a situation." Id. § 2A1.4, cmt. n. 1; § 3C1.2, cmt. n. 2. The district court found Cook's June 1, 2001 conduct endangered people through his evasive, high speed driving and his rushing into a stranger's home to hide and to conceal crack cocaine.

Cook was driving a vehicle while intoxicated when he chose to flee the police, who pursued with police cars and a surveillance helicopter. Cook drove at high speeds in a residential area. Cook admittedly crossed an intersection through oncoming cross-traffic. After abandoning his car, Cook charged into a stranger's home, requiring a police officer to enter the house at gunpoint to arrest Cook. The residents of the house included a mother and her seven children. The mother testified she was frightened, and an officer testified the residents seemed "very upset and almost in a state of shock." The officer, at gun point, ordered Cook onto the floor. These events — caused by Cook — created a substantial risk of serious bodily injury to others. The district court's findings are clearly not erroneous.

C. Sufficiency of the Evidence

Cook argues there was insufficient evidence to support the guilty verdict on the conspiracy count. Cook confronts a high hurdle with this argument, as we must employ a very strict standard of review on this issue. United States v. Sanders, 341 F.3d 809, 815 (8th Cir. 2003). We must view "the evidence in the light most favorable to the government, resolving evidentiary conflicts in favor of the government, and accepting all reasonable inferences drawn from the evidence that support the jury's verdict." Id. (citation omitted). We may reverse only if no reasonable jury could have found Cook guilty. Id. The government had to prove there was an agreement to distribute cocaine base, which Cook knew and intentionally joined. Id. The government could prove the existence of a conspiracy with direct or circumstantial evidence. Id.

Cook's argument on appeal sounds more like a summation to a jury. Cook repeatedly attacks the veracity and credibility of adverse witnesses. These arguments did not persuade the jury, and are similarly unconvincing on appeal. See United States v. Espino, 317 F.3d 788, 794 (8th Cir. 2003) (stating the jury "is always the ultimate arbiter of a witness's credibility, and this Court will not disturb the jury's findings in this regard"). The jury concluded the government met its burden to prove the conspiracy count beyond a reasonable doubt. Because the record supports this conclusion, we will not overturn the jury's verdict.

Although the record contains substantial evidence of Cook's involvement in a conspiracy to distribute cocaine base, we focus only on the testimony of Hawkins and Watson. Hawkins testified to the following: (1) he dealt drugs with Cook in 1996 and 1997, as well as from 2000 to August 2001; (2) he sold Cook 1/4 to 1...