U.S. v. England, s. 91-2128

• Decision Date: 29 July 1992
• Docket Number: 91-2251,91-2248,Nos. 91-2128,91-2249,91-2129,s. 91-2128
• Citation: 966 F.2d 403
• Parties: 35 Fed. R. Evid. Serv. 1272 UNITED STATES of America, Appellee, v. Floyd Alvin ENGLAND, Appellant. UNITED STATES of America, Appellee, v. Chris A. TERRELL, Appellant. UNITED STATES of America, Appellee, v. Myles CURTIS, Appellant. UNITED STATES of America, Appellee, v. David L. MOSBY, Appellant. UNITED STATES of America, Appellee, v. Ronnie D. PEACOCK, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 403

966 F.2d 403

35 Fed. R. Evid. Serv. 1272

UNITED STATES of America, Appellee, v. Floyd Alvin ENGLAND, Appellant.

UNITED STATES of America, Appellee, v. Chris A. TERRELL, Appellant.

UNITED STATES of America, Appellee, v. Myles CURTIS, Appellant.

UNITED STATES of America, Appellee, v. David L. MOSBY, Appellant.

UNITED STATES of America, Appellee, v. Ronnie D. PEACOCK, Appellant.

Nos. 91-2128, 91-2129, 91-2248, 91-2249, 91-2251.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 9, 1991.

Decided June 8, 1992.

Rehearing and Rehearing En Banc

Denied July 29, 1992.

Thomas A. Ludwig (argued), Jackson, Mo., for appellant England.

John T. Welch, Malden, Mo., for appellant Terrell.

Daniel P. Reardon, Jr., Clayton, Mo., for appellant Curtis.

Alan Jay Koshner, St. Louis, Mo., for appellant Mosby.

George W. Gilmore, Jr., Sikeston, Mo., for appellant Peacock.

Edward J. Rogers (argued), Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before ARNOLD, Circuit Judge, ^* BRIGHT, Senior Circuit Judge, and FAGG, Circuit Judge.

ARNOLD, Chief Judge.

Floyd England, Chris Terrell, Myles Curtis, David Mosby, and Ronnie Peacock appeal their convictions and sentences for conspiring to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. We affirm both the convictions and the sentences.

I.

Beginning at some point in 1985, Jerry Duncan, a member of the Pharaohs Motorcycle Club, began selling methamphetamine in and around Poplar Bluff, Missouri. Although not his original source, beginning in 1987, Duncan began receiving methamphetamine from Cecil Summerfield, from whom the Pharaohs rented their clubhouse. Cecil's half-brother, Jack Summerfield, manufactured the methamphetamine. With the methamphetamine Duncan received from Cecil, he, in turn, supplied several other members of the Pharaohs--Calvin Morley, Chris Terrell, Rodney Jackson, Myles Curtis, Floyd England, and Charles Lanny Robinson--with the drug for resale. While they did not get their methamphetamine directly from Duncan (they got it from Curtis), two other individuals associated with the Pharaohs--Ronnie Peacock and David Mosby--also began distributing the Summerfields' methamphetamine. Duncan also provided Gary Deering, a member of another motorcycle club, with methamphetamine for resale.

In early 1989, law enforcement officers arrested Jack Summerfield and shut down his methamphetamine factory. In response, England developed another source of methamphetamine. Additionally, throughout 1989, Cecil Summerfield attempted to generate another source of methamphetamine by making several trips to California with his uncle, Calvin Harold Clark. In February 1990, they found a source in California, bought some methamphetamine, and brought it back to Missouri for resale. Summerfield and Clark contacted Duncan to help distribute the methamphetamine they purchased in California.

Unknown to them or others involved in the prior methamphetamine sales, however, Duncan had begun cooperating with the police in December 1989 after being arrested. With the consent of federal agents, Duncan agreed to help Summerfield and Clark distribute their newly acquired methamphetamine. On March 7, 1990, federal agents tape recorded conversations between Duncan, Curtis, Peacock, England, and Terrell in which they discussed future distribution of the new methamphetamine. Duncan recorded another similar conversation between himself and Mosby on March 10, 1990. On March 13, 1990, federal agents arrested Cecil Summerfield and Clark as they delivered four pounds of methamphetamine to Duncan. That same day, agents arrested England, Curtis, Mosby, and Terrell as they attempted to pick up their scheduled delivery of methamphetamine. After agents executed a search warrant at Peacock's home, he surrendered.

On October 12, 1990, a grand jury sitting in the Eastern District of Missouri returned a second superseding indictment against the defendants. In Count I, the indictment charged that the defendants, along with Cecil Summerfield, Calvin Harold Clark, Danny R. Walker, and Charles Lanny Robinson, conspired from late 1985 to March 13, 1990, to distribute cocaine and methamphetamine in southeastern Missouri and elsewhere. In separate counts, each of the defendants was also charged individually with using a firearm in connection with a drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1). Before trial, Clark, Walker, and Robinson agreed to cooperate with the government and testify on its behalf. Summerfield pleaded guilty, but did not testify.

After a seven-day trial ending on February 5, 1991, the jury found each defendant guilty of conspiracy, but acquitted each of them on the firearms charges. On May 10, 1991, the District Court ¹ sentenced defendants England, Terrell, Curtis, and Mosby to forty years' imprisonment to be followed by five years of supervised release. Peacock received a sentence of 17 1/2 years' imprisonment to be followed by five years of supervised release. The Court also imposed a special assessment of fifty dollars against each defendant. These appeals followed.

II.

All the defendants argue that their convictions are supported by insufficient evidence. After reviewing the evidence in the light most favorable to the government, we believe a reasonable jury could find each of the defendants guilty of conspiracy beyond a reasonable doubt. We reject their claim that the government's main witness, Duncan, was not credible and that his testimony cannot support their convictions because much of it was uncorroborated. Defense counsel strenuously cross-examined Duncan. The jury was aware of his cooperation with the government and of his role in the conspiracy. The District Court also admonished the jury to examine the testimony of an informer with greater care than other witnesses. Despite this information, the jury apparently believed, and was entitled to believe, Duncan.

The defendants' next contention is that their convictions must be reversed because the government proved multiple conspiracies instead of the single conspiracy alleged in the indictment. They claim that the government proved at least two, and maybe three, conspiracies: the first conspiracy beginning in 1985 or 1986 and ending with Jack Summerfield's arrest in early 1989; the second conspiracy stemming from England's alternative source of methamphetamine; and the third conspiracy beginning in February 1990 with the plans to distribute the methamphetamine Cecil Summerfield and Clark bought in California.

Whether the government has proved a single conspiracy or a multiple conspiracy is a question of fact to be resolved by the jury. See, e.g., United States v. Springer, 831 F.2d 781, 784 (8th Cir.1987), cert. denied, 485 U.S. 938, 108 S.Ct. 1117, 99 L.Ed.2d 277 (1988). Our review of the record, in the light most favorable to the verdict, indicates that it was reasonable for the jury to conclude that a single conspiracy existed. The essence of a drug conspiracy is an agreement to violate the narcotics laws. Evidence in this case indicates that the defendants had one common overall goal--to distribute methamphetamine. The fact that they may not have had drugs to distribute for periods of time does not mean that they were no longer conspiring to distribute methamphetamine. Indeed, the evidence indicates that the network continued to seek a source during these "dry" times, and that it was ready to distribute the drugs once they became available.

Defendant Mosby argues that the District Court erred by admitting certain hearsay statements into evidence. He challenges the admission of out-of-court statements made by Daniel Byrd and Curtis which implicated him as well as admission of his tape-recorded conversation with Duncan. He claims the government failed to demonstrate by a preponderance of the evidence under Rule 801(d)(2)(E) that these statements were made by co-conspirators during the course and in furtherance of the conspiracy. We reject Mosby's claims.

The statements Mosby challenges simply do not present Rule 801(d)(2)(E) problems. Duncan testified that Curtis was his connection to Mosby in their drug-distribution network. While Curtis may have told Duncan that he was distributing drugs to Mosby--an out-of-court statement--Duncan's trial testimony on this point does not repeat an out-of-court statement. The Assistant United States Attorney asked Duncan who his connection was to Mosby. Duncan replied, "Myles Curtis." Trial Transcript at 384. No hearsay is recounted in this testimony. Similarly, the tape-recorded conversation between Duncan and Mosby does not present a Rule 801(d)(2)(E) problem. Mosby's statements are his own admissions and are therefore admissible under Rule 801(d)(2)(A).

Mosby does not identify with any particularity statements made by Byrd which were improperly admitted under Rule 801(d)(2)(E). It is true that Byrd's testimony does contain some hearsay. He testified, for example, that he told Drug Enforcement Administration agents that an individual named Ricky Drake was his source and that the agents, in turn, told him to wear a wire when making future purchases from Drake. We agree that these statements were not admissible under Rule 801(d)(2)(E). Nevertheless, we see no prejudice to Mosby or any of his co-defendants due to their admission. As for Byrd's testimony which did implicate Mosby, it simply contains no hearsay and therefore does not support Mosby's claim of prejudicial error.

We also reject defendant Terrell's related claim that the District Court erred in admitting co-conspirator statements by failing to comply with this Court's decision in United States v. Bell, 573 F.2d 1040, 1044 (8th Cir.1978). Bell requires district courts to admit conditionally the statements of co-conspirators, subject to the government's meeting its burden of proving that it is more likely than not that the statements were made by a co-conspirator during the...