U.S. v. Curry, 95-1395

• Decision Date: 27 March 1996
• Docket Number: No. 95-1395,95-1395
• Citation: 79 F.3d 1489
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gary Lamont CURRY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1489

79 F.3d 1489

UNITED STATES of America, Plaintiff-Appellee, v. Gary Lamont CURRY, Defendant-Appellant.

No. 95-1395.

United States Court of Appeals Seventh Circuit.

Argued Oct. 31, 1995.

Decided March 27, 1996.

Appeal from the United States District Court for the Southern District of Illinois, Benton Division. No. 94 CR 40058--Paul E. Riley, Judge.

Robert Lee Garrison, Office of the United States Attorney, Criminal Division, Fairview Heights, IL, for Plaintiff-Appellee.

Thomas R. Murphy, Jr., Watson & Murphy, Eldorado, IL, for Defendant-Appellant.

Before POSNER, Chief Judge, and CUDAHY and COFFEY, Circuit Judges.

COFFEY, Circuit Judge.

Gary Lamont Curry was indicted on one count of possession of cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii). A jury found him guilty as charged and the district court sentenced him to 121 months' imprisonment, to be followed by a term of four years supervised release, and imposed a $500 fine as well as a special assessment fee of $50. Curry appeals his conviction. We AFFIRM.

I. FACTUAL BACKGROUND

On July 30, 1994, at approximately 4:00 a.m., Police Officers Bryan, Forrester, Hankins and Corry were on duty at the Elmwood Housing Project ("Elmwood") in Cairo, Illinois. The officers were in conversation when Bryan and Forrester observed a man they recognized as Gary Curry walking through the project. ¹

The officers were aware that a domestic violence complaint had been filed against Curry that evening, so Forrester proceeded to shine a spotlight on the defendant as Bryan exited his car to approach Curry. Bryan stated that he lost sight of the defendant for a few seconds, but quickly regained his view of him. When the officer was approximately fifteen feet away, Bryan observed Curry step over toward a bush, reach "down toward his pocket," lean over the shrubbery and make a movement as if he were dropping an object into the bush. Curry immediately moved away from the foliage and raised his hands in the air.

At this time, Bryan informed Curry that he was under arrest, and ordered the defendant to place his hands behind his back and turn around to be handcuffed. As Bryan proceeded with the arrest, he requested that Forrester, Corry, and Hankins retrieve the item the defendant had dropped in the bush. As Corry reached down to pick up a stick, Bryan informed him that he was not in the same location where he had observed Curry drop the object. Although at that time Curry stated that the stick was what he had deposited in the bush, Bryan pointed out the location of the defendant's drop to Hankins and Forrester, who both testified that they immediately re-directed their search to that area and discovered a plastic baggie ² containing a substance that the officers believed to be cocaine base (commonly known as "crack"). ³ Hankins retrieved the packet from under the bush.

Curry was searched at the scene of his arrest and on his person the officers found a beeper in operational mode and $182 in cash. Curry then was conveyed to the Cairo Police Department, photographed, fingerprinted, and placed in a holding cell. FBI Agent Brenn Tallent with the Federal Public Housing Drug Task Force in the Springfield Division of the FBI was called to the station to question Curry. Tallent and Special Federal Officer Lester Murray, also a member of the Task Force, interviewed the defendant at the police station. Tallent began his inquiries by displaying to Curry the Cairo Police Department's Advice of Rights card, which the Cairo police officers had Curry sign in order to acknowledge that he had been read and understood his Miranda rights. ⁴ Tallent asked Curry if that was his signature on the card, to which he responded in the affirmative, and the defendant reiterated that he was informed of and understood his rights. According to Tallent, Curry then replied that he wished to speak with the agents about his involvement in the distribution of crack cocaine.

Agents Murray and Tallent each testified that Curry informed them that he been dealing crack since Spring of 1991 and named ten different dealers he had worked with in the past, some of whom resided in Elmwood. The defendant allegedly also revealed that he typically sold drugs in and around the Cairo Housing Projects, primarily at Elmwood. When the officers inquired of Curry concerning the crack cocaine in the baggie that they had recovered that morning, according to Tallent the defendant admitted that it was his, and that he had taken it from his girlfriend that night, after they had a fight. Tallent further testified that Curry informed them that he brought the drugs to the project to "get rid of them or something to that effect."

During the jury trial, Curry's version of events differed significantly from the officers' and agents' testimony. The defendant stated that he and his girlfriend had a fight during the evening of July 29, and that as they were driving home, she jumped out of the car and stormed off. He went out to look for her at four in the morning, at which time he claimed to be carrying a piece of a broom or mop handle to fight off any dogs that might jump out and attack him. His search took him to the Elmwood project and while there, the police drove up to him and shone a spotlight in his face. Curry testified that at first he kept walking but when he recognized Officer Bryan, he threw away the stick and put his hands in the air. Bryan promptly arrested and cuffed him. Curry denied walking toward the bush, reaching toward his pockets, and being in possession of the baggie of crack.

The defendant testified that after he was transported to the police station, he gave the officers a statement denying his possession of the baggie found under the bush and was then taken to a cell where he went to sleep. After he was awakened and given breakfast, the officers asked him to make another statement. Curry responded that he had previously given an account of the events and claimed he was then conveyed to a small room where he met Agent Tallent. According to the defendant, Tallent also asked him to make a statement and he stated that he had given one previously to the Cairo officers and declined to make another. Curry denied that Tallent had either read him or explained his constitutional rights and that he had displayed the Cairo Police's Advice of Rights card which the defendant had signed. Curry maintains that at that time he then penned a half-page statement in which he again denied his possession of the crack, which Tallent read and the defendant signed.

After this, Curry alleges that he was escorted to his cell, only to be taken back to speak with Tallent twenty minutes later. At this time, the agent, referencing the written statement, allegedly stated "this ain't going to work, Gary." Curry admitted that he informed Tallent that he had used drugs in the past, but he denied telling him that he had ever dealt drugs, or that he named any past or present suppliers. The defendant then averred that Tallent tore up the handwritten statement and told him to return to his cell. Curry also testified that Tallent was the only agent in the room, and denied seeing or meeting Agent Murray until he testified in court.

At trial, the government presented three witnesses (Henry Moss, Michael Futrell, and Vernon Trenton) who had previously purchased crack cocaine from the defendant between 1991 and 1994. All three had pled guilty to federal narcotics offenses and entered into plea agreements that promised a recommendation to the court for a possible reduction in their sentences in return for truthful testimony concerning their drug dealings with Curry. Before the trial, the government filed a motion informing the defendant that it intended to call these three men as witnesses to relate accounts of their prior drug dealings with Curry. ⁵ The defendant objected to their testimony, arguing that it was inadmissible under Fed.R.Evid. 404(b) because its sole purpose was to establish that he had a propensity to deal crack. The district judge disagreed, and admitted the evidence for the purpose of proving Curry's intent to distribute cocaine on the night of his arrest, and found that the probative value of the testimony outweighed the risk of unfair prejudice.

Moss, serving a twenty-one year federal sentence for conspiring to and selling cocaine in 1994, testified that he knew Curry prior to his own arrest, and that the defendant Curry made a living selling crack cocaine in the Elmwood and McBride Housing Projects. Moss stated that he purchased crack from Curry, and often re-sold it for his own profit to pedestrians and motorists in Elmwood. Moss also testified that on one occasion, he sold some cocaine base for Curry, and returned the money to the defendant after the deal was consummated. Moss additionally stated that the defendant kept his supply of crack in plastic baggies.

Futrell pled guilty to conspiring with intent to distribute cocaine and was awaiting sentencing at the time of Curry's trial. Futrell testified that he had known Curry since 1991, and had made 30 or 40 crack cocaine buys from him during the first two months of 1994 alone. He also asserted that the defendant Curry kept his stash of drugs either in medicine bottles or plastic baggies, and that Curry usually made his sales between three and five o'clock in the morning, at Elmwood. Futrell further testified that he had observed the defendant selling crack at the McBride Project during 1990, 1991, and 1992.

Finally, Trenton, serving a 36 month sentence for distribution of crack cocaine, testified that he had known Curry all his life and that as late as May of 1994, the defendant was making a living selling crack cocaine in the McBride Project as well as at Elmwood. Trenton stated that he had purchased drugs from Curry at Elmwood over 100 times between early 1993 and May of 1994, much of which he received on credit,...