U.S. v. Draper

• Decision Date: 02 November 1989
• Docket Number: Nos. 88-5933,88-5947,s. 88-5933
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Terry DRAPER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1100

888 F.2d 1100

UNITED STATES of America, Plaintiff-Appellee, v. Terry DRAPER, Defendant-Appellant.

Nos. 88-5933, 88-5947.

United States Court of Appeals Sixth Circuit.

Submitted Aug. 1, 1989.

Decided Nov. 2, 1989.

W. Hickman Ewing, Jr., U.S. Atty., Timothy R. DiScenza, Asst. U.S. Atty., Office of the U.S. Atty., Memphis, Tenn., for plaintiff-appellee.

William B. Seligstein, Wagerman & Seligstein, Memphis, Tenn., for defendant-appellant.

Before WELLFORD and NELSON, Circuit Judges, and TAYLOR, District Judge ^*.

ANNA DIGGS TAYLOR, District Judge.

Appellant Draper was convicted by a jury of aiding and abetting codefendant William Conard in the possession with intent to distribute cocaine, a schedule II controlled substance, in violation of 21 U.S.C. Sec. 841(a)(1). He was acquitted of the second count of the indictment, which charged the commission of a drug trafficking crime while armed, in violation of 18 U.S.C. Sec. 924(c). Draper was later sentenced to a term of forty-two months of incarceration and three years of supervised release, which District Judge Julia Gibbons found appropriate both under the then new Sentencing Guidelines Act, 28 U.S.C. Sec. 994, being within the Guideline range, as well as appropriate in the exercise of her pre-Guideline discretion.

I.

On appeal, Draper challenges the sufficiency of the evidence, claims error in the cross-examination of a defense witness concerning her prior kidnapping charge against him, and argues that the sentence was excessively severe. We affirm.

On December 22, 1987, Special Agent Gary Michael Rowell, of the Drug Enforcement Administration (DEA), was introduced to William Conard by a confidential informant, Sasser, who had advised that Conrad was selling cocaine. Acting in an undercover capacity, Agent Rowell attempted to purchase a quantity of cocaine from Conard in his home at 1052 Willett in Memphis, Tennessee. Although a price of $1,400.00 per ounce was discussed, Conard apparently was unable to contact his source. Conard then instructed Agent Rowell and Sasser to return later to complete the deal. When they did return to the house later that same afternoon, Conard was successful in reaching his source and, approximately forty minutes later, a car door was heard to slam and Conard said to the waiting agent, "he is here now." Both Agent Rowell and Sasser were then asked to wait in another part of the house while Conard left the room to greet the unseen visitor. Moments later, Conard brought them a plastic bag which, undisputedly, contained cocaine. Agent Rowell then paid Conard for the package and Conard disappeared to another part of the house again, with the purchase money.

Although a male voice could be heard in another room with Conard, neither Agent Rowell nor Sasser ever saw the source. A door was also heard to close. Their transaction completed, Agent Rowell and Sasser left the house. On reaching their car, Agent Rowell notified surveillance units that the transaction was complete and that the source had just departed.

Special Agent Stephen McCormick, who had with Special Agent Henry Baker conducted surveillance of 1052 Willett on December 22, 1987, testified that he had observed a gray Oldsmobile drive up and pull into the driveway at 1052 Willett. A short while later, he had observed a Black male approximately 6'2"-6'4" tall leave the residence, jump over a hedge and get into the gray Oldsmobile. He identified this individual as being Terry Draper.

Drug Enforcement Agent Brian Keith Chambers also purchased one ounce of cocaine from Conard on January 12, 1988. Later, another transaction was arranged by Agent Chambers and Sasser with Conard. It was to take place in the parking lot of a 7-Eleven store at the intersection of Cleveland and Poplar Streets on January 21, 1988. On that date, Agent Chambers and Sasser were waiting, as agreed, when the same gray Oldsmobile pulled into the parking lot. Agent Chambers, who had observed Draper on December 22nd, testified that Draper was driving the Oldsmobile on this occasion, with Conard in the passenger seat. Agent Baker testified that he also had observed the gray Oldsmobile pick up Conard at 1052 Willett earlier that same day.

Conard exited the gray Oldsmobile and joined Agent Chambers and Sasser in their car. He stated that he was nervous and that his man wanted to move the buy to Krystal's Restaurant down the street. Agent Chambers drove to Krystal's with Draper and the Oldsmobile following close behind, and Conard and Sasser entered the restaurant. First, however, Conard approached the Oldsmobile and spoke briefly with Draper, who was still seated in it. Once the other two were in the restaurant, Agent Chambers left his car and began walking over to the Oldsmobile, whereupon Draper got out of his car and walked towards Agent Chambers. Agent Chambers testified that when they met, Draper identified himself as "Terry," offered him a business card with his beeper number handwritten on the back, and advised Agent Chambers that he should call him directly for any future dealings. Agent Chambers had also noticed a pearl handled revolver in the waistband of Draper's pants.

Meanwhile, Sasser had gone into the restroom of the restaurant with Conard, purportedly to see the drugs before making payment. After having seen what appeared to be cocaine, Sasser returned to the parking lot and gave the arrest signal to Agent Chambers.

On Sasser's signal, Draper returned to the Oldsmobile. Agent Chambers, assisted by Agent Walter Hoback, who was identifiably dressed as a law enforcement officer, identified themselves and attempted to arrest the Appellant. Draper sped off, grazing Chambers in the process. Additional DEA agents who had been on surveillance gave pursuit. After a high speed pursuit, the Appellant was forced to stop, and arrested. Agent Corbett Hart of the Federal Bureau of Investigation, who had been one of the agents involved in the pursuit, testified that something appeared to have been thrown from the Oldsmobile in flight. A subsequent search of the pursuit route, however, was fruitless.

Meanwhile, Agents Chambers and Hoback, who had remained in the parking lot, entered the restaurant, arrested Conard, and found a package containing, undisputedly, cocaine.

II.

The Appellant claims that the evidence adduced at trial was insufficient to sustain a conviction. We, however, find to the contrary. As we held in United States v. Elkins, 732 F.2d 1280, 1287 (6th Cir.1984), "... a challenge on appeal to the sufficiency of the evidence will be determined by review of the evidence in the light most favorable to the government." A conviction will be affirmed if, after such review, "there is sufficient competent evidence on the record to justify a rational juror's conclusion that every element of the offense has been established beyond a reasonable doubt." See also Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, reh'g denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); United States v. Tilton, 714 F.2d 642 (6th Cir.1983); and United States v. Wolfenbarger, 426 F.2d 992 (6th Cir.1970).

Review of the record before us reveals ample competent evidence upon which a rational juror might draw a conclusion of guilt beyond a reasonable doubt. Appellant argues that, because no cocaine was ever found in his possession, he could not have been convicted of cocaine possession. A rational juror, however, could certainly conclude, based upon the evidence presented, that Appellant aided and abetted possession with intent to distribute, as well as constructively possessed the cocaine.

To find that constructive possession exists, an individual need not have physical possession. Rather, all that need be shown is that the individual knowingly has the power to exercise a measure of dominion and control, either directly or through others. United States v. Craven, 478 F.2d 1329 (6th Cir.1973), cert. denied, 414 U.S. 866, 94 S.Ct. 54, 38 L.Ed.2d 85 (1973); United States v. Burch, 313 F.2d 628 (6th Cir.1963).

Here, Appellant was identified by law enforcement personnel as the driver of the gray Oldsmobile which was observed at Conard's house on December 22, 1987, during an undercover drug buy and again at the Krystal Restaurant meeting of January 21, 1989, which had been arranged for the same unlawful purpose. Appellant also identified himself to Agent Chambers as "Terry," and suggested that Agent Chambers call him directly the next time that he wished to make a deal.

Clearly, he was aware of the transaction at hand, and superior to Conard in the enterprise. Appellant offered the alibi testimony of ...