U.S. v. Davis

• Decision Date: 20 January 1994
• Docket Number: No. 92-6497,92-6497
• Parties: P UNITED STATES of America, Plaintiff-Appellee, v. Benjamin A. DAVIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 526

15 F.3d 526

1994 Fed.App. 10P

UNITED STATES of America, Plaintiff-Appellee, v. Benjamin A. DAVIS, Defendant-Appellant.

No. 92-6497.

United States Court of Appeals, Sixth Circuit.

Argued Aug. 9, 1993.

Decided Jan. 20, 1994.

David G. Dake, Asst. U.S. Atty., Harwell G. Davis, III, Asst. U.S. Atty. (argued and briefed), Chattanooga, TN, for U.S.

Benjamin Davis (briefed), Oakdale, LA, Ashley L. Ownby (argued and briefed), Cleveland, TN, for defendant-appellant.

Before: BOGGS and SILER, Circuit Judges; and JOINER, Senior District Judge. ^*

JOINER, Senior District Judge.

Benjamin Davis appeals his conviction and sentence for possession of cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. On appeal, Davis challenges the denial of his motion to dismiss the indictment based on alleged selective prosecution; the admission of evidence of 30 or 40 prior crack sales; the denial of his motion for a new trial based on newly discovered evidence pertaining to improprieties committed in unrelated cases by one of the arresting officers; and his 210-month sentence based on career offender status. We affirm Davis' conviction and sentence.

I.

A.

In early 1992, the wife of Kevin Beadnell contacted Officer Dennis Maddux and informed him of her husband's crack cocaine addiction. Maddux talked to Beadnell about his drug use, but Beadnell continued to buy and use crack cocaine. Beadnell later told the police that he had bought an average of 3 to 4 rocks of crack from Davis and Jarrell Hickey on each of 30 to 40 occasions between September 1991 and January 1992, at a cost of $20 per rock.

On January 9, Beadnell bought more crack that he, Davis and Hickey smoked. Beadnell returned home with Davis and Hickey, both of whom possessed a number of rocks of crack cocaine. Davis asked Beadnell if he could find some buyers for the cocaine. Beadnell went to a pay telephone and called Maddux and gave him permission to enter his home without a warrant.

Maddux requested Detective Barry Hughes and Police Chief Wesley Snyder to accompany him, and together they raided the Beadnell home. Upon entering the house, Maddux observed Davis in the process of dumping crack from a container into his mouth. Maddux tackled Davis and tried to retrieve the evidence. Maddux and Hughes both saw a piece of cocaine fall on the floor and Hughes picked it up. This was the only contraband retrieved, although the officers also seized $310 from Davis.

In a statement given after his arrest, Davis admitted to having purchased 10 rocks of crack cocaine for $100 in Chattanooga. He also admitted taking the crack cocaine back to Cleveland with the intent of breaking it into 20 rocks, with a total value of $200. Davis said that he did not go to Beadnell's house with the intention of selling the cocaine to him, because Beadnell had already bought cocaine from "the other guy," presumably Hickey. Davis confirmed that he had swallowed rocks of cocaine when the police entered the house. Davis was released from custody following his statement.

Davis previously had been charged with selling cocaine on four occasions between August 1989 and May 1990. After the second sale, he offered to help the police in exchange for assistance from them. He provided reliable information, but was not required to testify at any trials. Davis was sentenced on the state charges in February 1991, and Hughes personally requested leniency for Davis due to the assistance Davis had given. At the time of his arrest at Beadnell's home, Davis was on probation on the state convictions, and was not then working with the police. Hughes told Davis that he would not immediately charge him but, rather, would talk to the district attorney. He asked Davis to contact him later, but Davis apparently did not.

B.

Davis and Hickey were charged by a federal grand jury in a one-count indictment with aiding and abetting each other in the possession of crack cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. Prior to trial, Davis moved to dismiss the indictment, alleging selective prosecution in violation of his due process and equal protection rights. The district court denied the motion, finding that Davis' indictment was an exercise of valid prosecutorial discretion. The case went to trial in June 1992 against only Davis, because Hickey was a fugitive. Maddux and Hughes testified at the trial to the circumstances of Davis' arrest, and Hughes testified to the statements Davis made following his arrest. Over objection, Beadnell testified to his history of buying crack from Davis and Hickey. Davis was thereafter convicted by the jury.

In September 1992, prior to sentencing, Davis moved for a new trial based on the newly discovered evidence that Hughes had resigned from the police force one month earlier when a fellow officer reported him for planting drugs on a suspect. In response to Davis' motion, the district court ordered an evidentiary hearing, at which extensive proofs were taken regarding the allegations of wrongdoing by Hughes. The court denied the motion for new trial, finding that Davis had presented new evidence that could not have been discovered earlier, but also finding that it was, at best, impeachment evidence that would not likely result in an acquittal. Davis was sentenced to a 210-month term of imprisonment, to be followed by a six-year term of supervised release.

II.

A. Denial of Motion to Dismiss for Selective Prosecution

Davis contends that the district court erred in denying his motion to dismiss the indictment for alleged selective prosecution. Davis claims that he was indicted because he refused to help the police following his arrest, and thus was made subject to the much harsher federal penalties for his drug offense. In support of this claim, Davis relies on Hughes' testimony that Davis could have provided information on as many as 25 more people because he was not yet known as an informant. On appeal, Davis does not claim, as he did in the district court, that he was singled out for prosecution in federal court because his uncle had pled guilty as a drug kingpin in federal court.

Davis' selective prosecution claim merits only brief discussion. As this court has recognized, a prosecutor has great discretion in determining whether or not to prosecute and what charge to file, so long as there is probable cause to believe that an offense has been committed. United States v. Allen, 954 F.2d 1160, 1166 (6th Cir.1992) (citing Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978)). While a prosecutor's exercise of discretion may not be based on a defendant's race, sex, religion, or on his exercise of a statutory or constitutional right, a prosecutor may properly base his decision on the penalties available upon conviction when determining what offense will be charged. Allen, 954 F.2d at 1166 (citing United States v. Andersen, 940 F.2d 593, 596 (10th Cir.1991); and United States v. Batchelder, 442 U.S. 114, 125, 99 S.Ct. 2198, 2204, 60 L.Ed.2d 755 (1979)). Referrals by states for federal prosecution need not be controlled through express policy so long as prosecutors are not acting as mere rubber stamps for charging decisions made by law enforcement. Allen, 954 F.2d at 1166. The ultimate decision on whether to charge a defendant rests with prosecutors and, absent evidence to the contrary, the court will not assume that prosecutors are acting as rubber stamps. United States v. Andersen, 940 F.2d 593, 597 (10th Cir.1991).

Davis offered no evidence that the decision to prosecute him was based on his religion, sex, or race, or because of his exercise of a constitutional right. The fact that a greater sentence will result from a federal conviction than from a state conviction alone does not provide a basis to challenge an indictment. Allen, 954 F.2d at 1166; United States v. Carter, 953 F.2d 1449, 1461-62 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 2980, 119 L.Ed.2d 598 (1992); Andersen, 940 F.2d at 596. While Davis contends that his federal prosecution resulted from his refusal to assist the local police in their drug enforcement efforts, he offers no evidence in support of this claim. Absent convincing evidence, this court will not assume that the federal prosecutor was acting as a rubber stamp for the charging referrals or suggestions made by the local police. Davis' claim of error has no merit.

B. Evidence of Davis' Prior Drug Sales to Beadnell

The district court found the evidence of Davis' 30 to 40 prior crack sales to Beadnell admissible under Fed.R.Evid. 404(b) ¹ on the issues of intent to distribute, knowledge and absence of mistake, and further found that the probative value of the evidence outweighed its prejudicial effect under Fed.R.Evid. 403. ² At Davis' request, the district court gave a limiting instruction to the jury, and Davis does not challenge that instruction on appeal.

Davis neither denies that the prior sales to Beadnell occurred, nor challenges the district court's conclusion that the evidence of the prior sales was relevant to intent to distribute, an element of the offense with which he was charged. Davis candidly states that his trial strategy was to attempt to show that he possessed the crack cocaine for personal use. In similar settings, this court has affirmed the admission of evidence of other drug transactions. United States v. Gessa, 971 F.2d 1257, 1261-62 (6th Cir.1992) (en banc ) (evidence of prior trips to the Bahamas to obtain cocaine probative of defendant's ability and opportunity to participate in an importation scheme); United States v. Robison, 904 F.2d 365, 368 (6th Cir.), cert. denied, 498 U.S. 946, 111 S.Ct. 360, 112 L.Ed.2d 323 (1990) (evidence of prior sales by defendant occurring five months before alleged conspiracy began admissible to counter defendant's claim that he was only a user of drugs); United...