U.S. v. Duke, 90-5322

• Decision Date: 17 September 1991
• Docket Number: No. 90-5322,90-5322
• Citation: 940 F.2d 1113
• Parties: UNITED STATES of America, Appellee, v. Ralph Chavous DUKE, a/k/a Plookie, a/k/a Plukey, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1113

940 F.2d 1113

UNITED STATES of America, Appellee, v. Ralph Chavous DUKE, a/k/a Plookie, a/k/a Plukey, Appellant.

No. 90-5322.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 13, 1991.

Decided July 23, 1991.

Rehearing and Rehearing en banc Denied Sept. 17, 1991.

F. Clayton Tyler, argued (F. Clayton Tyler and Hersch Izek, on brief), Minneapolis, Minn., for appellant.

Jon M. Hopeman, argued (Jerome G. Arnold, Jon M. Hopeman and Denise Reilly, on brief), Minneapolis, Minn., for appellee.

Before FAGG and BEAM, Circuit Judges, and HEANEY, Senior Circuit Judge.

BEAM, Circuit Judge.

Ralph "Plukey" Duke appeals from his convictions following a one-month long jury trial. Duke was convicted of all counts with which he was charged in a multi-defendant, multi-count indictment. Specifically, Duke was convicted of participating in a continuing criminal enterprise to possess and distribute cocaine in violation of 21 U.S.C. Sec. 848 (1988) (count 1); of aiding and abetting the attempt to possess with intent to distribute twenty kilograms of cocaine on May 17, 1989, in violation of 21 U.S.C. Secs. 841(a)(1), 846 (1988) and 18 U.S.C. Sec. 2 (1988) (count 2); of other instances of aiding and abetting the possession with intent to distribute smaller quantities of cocaine on various dates in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2 (counts 4, 5, 6, 7, 8); of three counts of using or carrying a firearm during and in relation to a drug trafficking offense all in violation of 18 U.S.C. Sec. 924(c)(1) (1988) (counts 28, 29, 30); and of conspiracy from 1984 to May 18, 1989, to possess with intent to distribute cocaine in violation of 21 U.S.C. Sec. 846 (count 32). Duke received separate life sentences on counts 1, 2, and 32, and forty-year sentences on each of counts 4-8. These sentences were all concurrent. In addition, Duke was sentenced to mandatory consecutive sentences of thirty years, five years, and five years, respectively, on counts 28, 29, and 30.

On appeal, Duke argues that his convictions for both continuing criminal enterprise and conspiracy violate the double jeopardy clause of the fifth amendment; that the evidence was insufficient to convict him of the twenty-kilogram transaction; that the evidence does not support the firearm convictions; and that he received ineffective assistance of counsel at trial. Because we agree that the convictions for both continuing criminal enterprise and conspiracy violate his fifth amendment rights, we remand this case to the district court to vacate one of the convictions. In all other respects, we affirm.

I. BACKGROUND

The evidence presented at the trial of Duke and five others involved in his drug dealings established that Duke headed a conspiracy to distribute drugs in the Twin Cities. Duke maintained several houses in Minneapolis and St. Paul, many of them providing housing for those who worked for him, as well as a house in Los Angeles, where he purchased much of the cocaine he distributed in Minnesota. Duke's normal methods involved purchasing cocaine directly from a Columbian source, receiving it in either Texas or Los Angeles, and then transporting it by car to Minnesota. Once in Minnesota, the cars were often unloaded at Duke's country estate in Delano, just west of Minneapolis. From there, the cocaine would be distributed to other members of the conspiracy who would sell it on the streets of the Twin Cities.

The operation was huge. Ralph Lamont Nunn (Monte Nunn), Duke's son, told the government's undercover informant, Andrew Chambers, that his father controlled much of the drug trade in the Twin Cities and could easily sell seventy-five kilograms in two or three months. Trial Transcript vol. 2, at 146; Exhibit 2A. Marvin McCaleb, a Los Angeles drug dealer with whom Duke conspired to sell cocaine from approximately June through December 1988, testified that during that period he and Duke sold twenty-five kilograms a week and made a profit of between $600,000 to $1,000,000 each. Trial Transcript vol. 7, at 194; see id. vol. 4, at 109. To distribute this much cocaine, Duke relied on a host of people, including his son, Monte Nunn; Loren Duke, Duke's nephew, who drove cars cross-country and who often took cash to local car dealers for laundering; and Joseph Ballard, who lived in Duke's Delano house and who made many cross-country trips.

The arrests in this case followed a reverse sting operation involving Monte Nunn and Andrew Chambers. Chambers, who worked for the Drug Enforcement Administration, first met Monte Nunn in May 1989 after working for several months trying to infiltrate the area drug culture. Chambers told Monte that he was from Los Angeles, had drugs to sell in Minnesota, and sold only in large quantities. Monte assured Chambers that his father could distribute as much cocaine as he could sell. The two exchanged phone numbers.

They met again several days later, on May 10, 1989, at a gas station. There, Monte got into Chambers's car, which had been equipped with a tape recorder, and the two drove around and talked for almost two hours. Their recorded conversation, during which they discussed the sale of twenty kilograms at about $14,000 per kilo, was played to the jury, see exhibits 2A and 2B, as were portions of several other conversations recorded between May 10 and May 17, the date of the twenty-kilogram transaction. They met again on May 16, and their conversation was again recorded. See exhibit 3.

On May 17, Chambers called Nunn and they arranged to meet at a car wash in the afternoon. From there, they went to a Hilton hotel, where Chambers showed Monte twenty kilograms in the trunk of his car. Nunn picked out three packages and they went inside to a room wired for audio and video surveillance, where Nunn cut and tested the cocaine. Their conversation after they left the hotel was again recorded and played to the jury. See exhibit 49. Chambers and Nunn agreed that Nunn would call Chambers later that day when he had collected the money.

Loren Duke testified that he met Nunn that afternoon at a motorcycle shop and that they went to Loren's house, where Nunn received a call from Chambers at about 6:00 p.m. Nunn told Chambers he was getting the money together and would call him. At about 10:00 p.m., Nunn left to make a call from a pay-phone; he came back twenty minutes later with almost $120,000 in cash. Nunn and Loren counted the money, called Chambers, and then left with two others for the Hilton. There they presented Chambers with $117,754 in a shoe box wrapped in a green bag, and were promptly arrested. The police arrested Ralph Duke later that day and executed search warrants at four houses, including the Delano house, on May 18, 1989.

II. DISCUSSION

A. Twenty-kilogram Transaction

We begin with Duke's argument that "the State has failed to provide any evidence to show that Ralph Duke was involved in aiding and abetting anyone to possess 20 kilograms of cocaine on May 17, 1989." Brief for Appellant at 21. Duke argues that there is simply no evidence connecting him to the transaction arranged between Nunn and Chambers. For instance, Duke points out that, while Nunn spoke to Duke on two occasions while he was meeting with Chambers, Chambers himself never spoke to Duke, nor could Chambers say that Nunn and Duke discussed the twenty-kilogram transaction. "I never seen him talk to his father about what we were talking about." Trial Transcript vol. 3, at 129. Duke also points out that there was no physical evidence connecting Duke to the money used to make the purchase. His fingerprints were not found on the money or the containers. In short, Duke argues, nothing establishes any connection between him and the transaction.

To sustain Duke's conviction for aiding and abetting the attempt to possess with intent to distribute cocaine, the government must prove more than Duke's mere association with Chambers and Nunn or his mere knowledge of their transaction. See United States v. Grey Bear, 828 F.2d 1286, 1292-93 (8th Cir.1987), vacated in part, 836 F.2d 1088 (8th Cir.1987). Rather, the government must prove: "(1) that the defendant associated himself with the unlawful venture; (2) that he participated in it as something he wished to bring about; and (3) that he sought by his actions to make it succeed." United States v. Lanier, 838 F.2d 281, 284 (8th Cir.1988) (citing United States v. Sopczak, 742 F.2d 1119, 1121-22 (8th Cir.1984)). The government must prove some "affirmative participation which at least encourages the perpetrator." United States v. Ivey, 915 F.2d 380, 384 (8th Cir.1990).

Duke alleges that the evidence was insufficient to prove any such active, affirmative participation. When reviewing his argument, "we examine the evidence in the light most favorable to the government, giving it the benefit of all reasonable inferences." Id. at 383. We can reverse only if "a reasonable fact-finder must have entertained a reasonable doubt about the government's proof of one of the offense's essential elements." Id. While it is a close question, given only the circumstantial evidence indicating that Nunn purchased the cocaine for Duke with Duke's money, we cannot say that a reasonable fact-finder must have had a doubt that Duke participated in and encouraged this transaction.

The jury heard several recorded conversations in which Nunn, although equivocally, implicated his father in the transaction. In their first recorded conversation, on May 10, 1989, Chambers asked Nunn what his father thought about the proposed deal:

[Chambers]: Ah, how your father feel about us hookin up?

Mont[e]: He's fine.

[Chambers]: Okay.

Mont[e]: He don't mind he's cool with it. He might wanna get some, you know.

Court 2A at 27. ¹ On May 16, Chambers asked Nunn whether he could buy all twenty kilograms. Nunn eventually replied that his problem was a lack of money: "See the problem I have I don't have any money here. See the money...