U.S. v. Drapeau

• Court: U.S. Court of Appeals — Eighth Circuit
• Writing for the Court: Colloton
• Citation: U.S. v. Drapeau, 414 F.3d 869 (8th Cir. 2005)
• Decision Date: 12 July 2005
• Docket Number: No. 04-1202.,04-1202.
• Parties: UNITED STATES of America, Appellee, v. Bernard J. DRAPEAU, Jr., Appellant.

Page 869

414 F.3d 869

UNITED STATES of America, Appellee, v. Bernard J. DRAPEAU, Jr., Appellant.

No. 04-1202.

United States Court of Appeals, Eighth Circuit.

Submitted: October 19, 2004.

Filed: July 12, 2005.

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Edward G. Albright, argued, Attorney Federal Public Defender, Pierre, SD., for appellant.

Mark E. Salter, Asst. U.S. Attorney, argued, Pierre, SD (Jeffrey C. Clapper, Asst. U.S. Attorney, Sioux Falls, and Paul E. Bachand, Asst. U.S. Attorney, Pierre, SD, on the brief), for appellee.

Before COLLOTON, LAY, and GRUENDER, Circuit Judges.

COLLOTON, Circuit Judge.

Bernard J. Drapeau, Jr., appeals his conviction for distributing a controlled substance and possessing a controlled substance with the intent to distribute, and his sentence of 324 months' imprisonment and three years' supervised release. We affirm Drapeau's conviction, but vacate his sentence and remand for resentencing in light of United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

I.

Drapeau was convicted based on information the Northern Plains Safe Trail Drug Enforcement Task Force ("Task Force") gathered from a controlled drug transaction in Fort Thompson, South Dakota. The transaction was carried out on April 20, 2002, by a confidential informant, Kristy Big Eagle, working with three Task Force agents. Big Eagle made a recording of the transaction with a hidden audio microphone provided by the agents.

On November 13, 2002, Drapeau was indicted on two drug counts: distribution of a controlled substance and possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Task Force agents arrested Drapeau in Fort Thompson on November 15, and promptly advised him of his Miranda rights. Drapeau at first stated that he did not want to talk to the agents. The agents then transported Drapeau to Hughes County Jail in Pierre, about sixty miles away. During the trip from Fort Thompson to Pierre, Drapeau admitted using and distributing methamphetamine. The following day, November 16, Drapeau gave agents a more detailed history of his involvement in drug trafficking, naming other persons from whom he had purchased drugs and specifying the quantities purchased. He also admitted selling methamphetamine to Big Eagle on six occasions.

At Drapeau's trial on April 1 and 2, 2003, Big Eagle and three Task Force agents gave testimony. Big Eagle testified that she purchased methamphetamine from Drapeau during the controlled transaction, and the jury heard the audio tape of the episode. One of the agents recounted Drapeau's admission on November 16 that he had sold drugs to Big Eagle on six occasions. The jury found Drapeau guilty on both counts.

Drapeau was sentenced on January 12, 2004. Although the jury was required to find only that Drapeau distributed and possessed with intent to distribute a "detectable amount" of drugs, the court determined that Drapeau was responsible for 1.721 kilograms of methamphetamine and that his base offense level was 34. (S. Tr. 34). The court applied a two-level adjustment for possession of a dangerous weapon, USSG § 2D1.1(b), (id. at 35), which resulted in a total offense level of 36. After finding that Drapeau's criminal history category was VI, the court sentenced Drapeau at the low end of the applicable sentence range of 324 to 405 months' imprisonment.

A.

Drapeau advances four arguments why his conviction should be reversed. First, he contends that the district court erred in denying his motion to suppress statements he made to Task Force agents following his arrest. The district court denied Drapeau's motion to suppress his statements, adopting the report and recommendation of the magistrate judge who conducted a hearing on the motion. We review the district court's findings of fact for clear error and the legal conclusions de novo. United States v. Thorn, 375 F.3d 679, 683 (8th Cir.2004).

Drapeau argues that his statements were obtained in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), because they were a product of the arresting agents' failure to honor scrupulously his "right to cut off questioning." See Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975); United States v. Thompson, 866 F.2d 268, 271 (8th Cir.1989). In Mosley, the Supreme Court clarified that "the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his `right to cut off questioning' was `scrupulously honored.'" Mosley, 423 U.S. at 100, 96 S.Ct. 321 (quoting Miranda, 384 U.S. at 473-74, 86 S.Ct. 1602). The Mosley analysis applies once a suspect in custody has "effectively asserted his right to remain silent." Thompson, 866 F.2d at 270.

We believe this case is comparable to Thompson, where the suspect initially told interrogating agents that he would "sleep on it" and would talk "tomorrow," but later volunteered that he wanted to "wait a little while before I'm interviewed." Thompson then signed a waiver of rights form and answered questions. We held that even assuming Thompson's initial statement was a request to defer questioning until "tomorrow," his initial decision to remain silent was reversed by his later volunteered statements. Therefore, Thompson had not "effectively asserted" his right to remain silent, and Mosley did not apply.

In this case, the district court found that after agents advised Drapeau of his Miranda rights, Drapeau responded by saying he "did not want to talk to agents at that time." (Tr. of Bench Dec. at 6). Shortly thereafter, however, Drapeau "initiated a conversation with agents" during the car ride to Pierre. (Id.) The conversation began as a general one, touching on hunting, fishing, children, and Fort Thompson. Drapeau then "brought up the facts that his parents were ill," and "that he did not want to go to prison" and "expressed a willingness to cooperate and help law enforcement out." (Id. at 7.) The district court found that Drapeau's testimony, to the extent it conflicted with these findings, was not credible (id. at 8), and this credibility finding is not clearly erroneous.

Drapeau's unprompted offer of cooperation was "an effective reversal" of his previously expressed desire not to talk to agents "at that time." See Thompson, 866 F.2d at 271. His actions do not represent a "clear, consistent expression of a desire to remain silent." Id. at 272. We therefore hold that Drapeau did not effectively assert his right to remain silent, and we need not address whether his right to remain silent was "scrupulously honored" under Mosley.

B.

Drapeau's second argument is that the district court impermissibly allowed the jury to hear testimony from Big Eagle that she previously purchased drugs from Drapeau. Federal Rule of Evidence 404(b) makes inadmissible "[e]vidence of other crimes, wrongs, or acts ... to prove the character of a person in order to show action in conformity therewith," but permits the introduction of such evidence to prove motive, opportunity, intent, preparation, plan, knowledge, or identity, or to show absence of mistake or accident. We review a district court's admission of evidence under Rule 404(b) for abuse of discretion. United States v. Crenshaw, 359 F.3d 977, 998 (8th Cir.2004).

Drapeau argues that Big Eagle's testimony was inadmissible under Rule 404(b), because it was offered only to show Drapeau's propensity to distribute drugs. Our circuit requires that evidence meet four criteria for admissibility under Rule 404(b). United States v. Williams, 308 F.3d 833, 837 (8th Cir.2002). First, the evidence must be relevant to a material issue. Id. Second, it must be similar in kind and "not overly remote in time to the charged crime." Id. Third, the evidence must be "supported by substantial evidence." Id. Last, its probative value must outweigh any unfair prejudice. Fed.R.Evid. 403; Williams, 308 F.3d at 837.

Applying these criteria, we conclude that the district court did not abuse its discretion in permitting Big Eagle's testimony regarding Drapeau's prior distribution of drugs. Evidence of a defendant's prior drug sales is probative of his intent to distribute, United States v. Harris, 352 F.3d 362, 365 (8th Cir.2003), and intent to distribute was an element of one of the charged offenses. Prior drug distributions also may, in appropriate circumstances, be relevant to proving a defendant's motive, United States v. Coleman, 284 F.3d 892, 894 (8th Cir.2002), opportunity, cf. United States v. Templeman, 965 F.2d 617, 619 (8th Cir.1992), preparation, Coleman, 284 F.3d at 894, plan, United States v. Haynes, 881 F.2d 586, 590 (8th Cir.1989), knowledge, United States v. Adams, 401 F.3d 886, 894 (8th Cir.2005), and absence of mistake or accident, United States v. Shoffner, 71 F.3d 1429, 1432 (8th Cir.1995). The prior acts to which Big Eagle testified were similar in kind to those for which Drapeau was charged and not overly remote in time: the prior acts were drug distributions that had occurred within the previous three years. (T. Tr. 43, 55). Big Eagle's testimony was well supported by other evidence; a Task Force agent testified to Drapeau's admission that he sold drugs to Big Eagle. The jury was instructed that the evidence could be considered only for limited purposes under Rule 404(b), and although Drapeau objected to the admission of the evidence, he did not complain about the specific limiting instruction given to the jury. (Dkt. # 68, Instruction 12; T. Tr. 112-13). We are thus not persuaded that any unfair prejudice outweighed the probative value of the evidence. We discern no abuse of discretion.

C.

Drapeau argues next that the district court erred in excluding evidence of Big Eagle's kinship to law enforcement personnel. Drapeau maintains that he should have been allowed to impeach Big Eagle's credibility by...