U.S. v. Foote, s. 89-1715
| Citation | 898 F.2d 659 |
| Decision Date | 15 March 1990 |
| Docket Number | Nos. 89-1715,89-1716,89-1717,89-1849 and 89-2024,s. 89-1715 |
| Parties | 29 Fed. R. Evid. Serv. 1321 UNITED STATES of America, Appellee, v. Lance D. FOOTE, Appellant. UNITED STATES of America, Appellee, v. Christopher E. WILLIAMS a/k/a Tony, Appellant. UNITED STATES of America, Appellee, v. Maxine MONROE a/k/a Bubbles, Appellant. UNITED STATES of America, Appellee, v. Andrew H. MORTON a/k/a Andrew H. Butler, Appellant. UNITED STATES of America, Appellee, v. Charles E. THOMPSON a/k/a Speedball, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Kevin Rotert and Larry D. Harman, Kansas City, Mo., for Andrew H. Morton.
Charles Teschner, Kansas City, Mo., for U.S.
David L. Owen, Jr., Kansas City, Mo., Michael S. Shipley, Liberty, Mo., W. Edwards Reeves and Steven C. Low, Kansas City, Mo., for Lance D. Foote, Christopher E. Williams, Maxine Monroe and Charles E. Thompson.
Before BOWMAN and BEAM, Circuit Judges, and HENLEY, Senior Judge.
These are the consolidated appeals of five defendants who were charged in a fourteen-count indictment with conspiracy to distribute cocaine and various other distribution and weapon charges. Two of the appellants, Lance Foote and Charles Thompson, were tried jointly by a jury. Foote was convicted of one count of conspiracy to distribute cocaine, 21 U.S.C. Sec. 846 (1988); two counts of distribution of cocaine, 21 U.S.C. Sec. 841(a)(1) (1988); and one count of using a firearm in the commission of a drug trafficking offense, 18 U.S.C. Sec. 924(c) (Supp. V 1987). Thompson was convicted of one count of conspiracy to distribute cocaine, two counts of distribution of cocaine, and two counts of using a firearm in the commission of a drug trafficking offense. The other three appellants, Christopher Williams, Andrew Morton, and Maxine Monroe, each pleaded guilty to one count of conspiracy to distribute cocaine and one count of use of a firearm in the distribution of cocaine. The remaining charges against these appellants were dismissed.
The District Court 1 sentenced Foote to a prison term of 140 months, consisting of three concurrent 80-month sentences on the conspiracy count and the two distribution counts, and a consecutive 60-month sentence on the firearm count. Thompson received a total of 243 months in prison, three concurrent 63-month sentences on the conspiracy count and the two distribution counts, a consecutive 60-month sentence on one firearm count, and an additional 120 months to be served consecutively on the other weapons charge. The appellants who pleaded guilty each were sentenced by the District Court 2 to 63 months on the conspiracy counts and 60 months on the weapons charges, to be served consecutively.
The consolidated appeals raise challenges to the convictions and sentences. We affirm.
The sales of cocaine base, or crack, that gave rise to the charges in these cases occurred in apartments at 4031 Harrison and 4422 Troost in Kansas City, Missouri. Undercover officers from the Kansas City Police Department, principally Detective Robert Ransburg, purchased cocaine base at 4031 Harrison or 4422 Troost on August 11, 12, 16, and 30; September 2; and October 1, 1988. A total of eight individuals, the five appellants here plus Brian Anglin, Samuel Gumbs, and Carmen Wagner, were charged in Count I of the indictment with conspiracy to distribute cocaine.
On August 11, Ransburg, accompanied by a confidential informant, went to apartment 3S at 4031 Harrison. Williams told Ransburg that no crack was currently available. Morton and Monroe soon arrived, however, and Ransburg purchased 1.3 grams of cocaine base from them. Williams was carrying a handgun during the exchange. This transaction was the basis for the distribution offenses charged in Count II and the firearm charges in Count III.
The next day, August 12, Ransburg returned to 4031 Harrison and was admitted by Thompson, who was holding a gun. Williams also was present at the apartment. Ransburg purchased 2.1 grams of cocaine base, handing the money to Thompson who passed it to Williams. This transaction was the basis for Counts IV and V.
On August 16, Ransburg went to 4031 Harrison and purchased 0.9 grams of crack cocaine from Anglin. While completing this exchange in the front room of the apartment, Ransburg could see Thompson selling crack to persons at the back door of the apartment. Both Thompson and Anglin were carrying firearms. This sale was the basis for Counts VI and VII.
Detective Ransburg returned to the Harrison apartment on August 22 and spoke with Foote and Wagner. Foote told Ransburg that no crack was available but that he could take Ransburg to another location to make a buy. Ransburg declined this offer.
Ransburg next visited 4031 Harrison on August 30. On that occasion, Williams met Ransburg outside the apartment, followed him into the apartment, and sold Ransburg 0.9 grams of crack cocaine. Both Wagner and Foote were present during the transaction. This purchase was the basis of Count VIII.
On September 2, Ransburg returned to 4031 Harrison. He met Foote outside on the apartment building stairs and Foote followed Ransburg into the apartment. In the apartment, Ransburg rejected the crack that Williams displayed and indicated that he wanted to purchase a larger amount. Foote then agreed to take Ransburg to another location, a third floor apartment at 4422 Troost where Anglin and Gumbs were present. On arrival, Foote spoke to Gumbs who obtained a package of crack from Anglin and spread it out for Ransburg to view. Ransburg selected 9.7 grams of cocaine, paid, and left with Foote. During the sale Anglin was holding a firearm. This sale was the basis for Counts IX and X.
Ransburg's second and final visit to 4422 Troost was on September 12. He discussed purchasing cocaine base with Anglin and Williams, but they were unwilling to sell to him. Foote was present during the discussion. As Ransburg was leaving, he met Thompson who advised him to watch out for police as several were nearby.
Detective Donald Birdwell, another officer involved in the investigation, purchased 0.4 grams of crack cocaine at 4031 Harrison on October 1. Birdwell met Foote outside the building and Foote followed him inside. In the apartment, Birdwell asked Foote if he could buy a half gram of cocaine and Foote directed him to the kitchen. In the kitchen, Williams sold cocaine to Birdwell in Foote's presence. This sale was the basis for Count XII.
On October 13, the police raided the apartment at 4422 Troost. Just prior to their arrests on the second floor landing, Foote was seen throwing down a container of crack and Anglin was spotted dropping a pistol. Thompson and several others were found in the apartment along with 4.5 grams of cocaine and a firearm. This evidence was the basis for the charges of possession with intent to distribute in Count XIII and the weapon charges in Count XIV.
Foote was convicted of Counts I, IX, X and XII and was acquitted on Counts VIII, XIII, and XIV. Thompson was found guilty of Counts I, IV, VI, and VII and given a directed verdict on Counts XIII and XIV. Williams, Morton, and Monroe pleaded guilty to Counts I and III and the remaining charges were dismissed.
The facts outlined above provide a basic description of the offenses charged. The circumstances of the case will be discussed in greater detail as necessary for the disposition of the arguments raised in these appeals.
We turn first to Foote's and Thompson's challenges to their convictions. The other appellants raise arguments that apply solely to their sentences.
Foote argues that the evidence presented was insufficient to find him guilty beyond a reasonable doubt and that his motion for judgment of acquittal should have been granted on all four of the counts upon which he was convicted. We disagree.
Foote's convictions must be upheld if, viewing the evidence in the light most favorable to the government and giving the government the benefit of all reasonable inferences, we conclude that a reasonable fact-finder could have found guilt beyond a reasonable doubt. United States v. Marin-Cifuentes, 866 F.2d 988, 992 (8th Cir.1989). The essential elements of a crime may be proved by circumstantial as well as direct evidence. Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 137, 99 L.Ed. 150 (1954).
To convict Foote of conspiracy under 21 U.S.C. Sec. 846, the government had to prove that he entered into an agreement with at least one other person and that the agreement had as its objective a violation of the law. Henderson v. United States, 815 F.2d 1189, 1191 (8th Cir.1987); cf. United States v. Covos, 872 F.2d 805, 810 (8th Cir.) ( that section 846 does not require proof of an overt act in addition to proof of a conspiracy), cert. denied, --- U.S. ----, 110 S.Ct. 124, 107 L.Ed.2d 85 (1989). "The independent evidence showing a conspiracy may be direct or totally circumstantial." United States v. Jankowski, 713 F.2d 394, 396 (8th Cir.1983), cert. denied, 464 U.S. 1051, 104 S.Ct. 732, 79 L.Ed.2d 192 (1984). Once a conspiracy was proved, even slight evidence connecting Foote to the conspiracy would be sufficient to support his conviction. United States v. Mims, 812 F.2d 1068, 1075 (8th Cir.1987). The government need not prove that Foote knew all the conspirators or that all details of the conspiracy were known to him. Id. at 1074-75.
The indictment charged all eight defendants with conspiring to distribute cocaine base from August 11 to October 13, 1988. During that time, undercover officers purchased cocaine at 4031 Harrison and 4422 Troost on six occasions from various members of the conspiracy. Foote was present and participated in several of the transactions. On one occasion he discussed the possibility of taking Ransburg to another location to purchase drugs, and on September 2, Foote led Ransburg to the Troost address...
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