U.S. v. Gordon

• Decision Date: 26 December 2007
• Docket Number: No. 06-3782.,06-3782.
• Citation: 510 F.3d 811
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Winston GORDON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

510 F.3d 811

UNITED STATES of America, Plaintiff-Appellee, v. Winston GORDON, Defendant-Appellant.

No. 06-3782.

United States Court of Appeals, Eighth Circuit.

Submitted: October 15, 2007.

Filed: December 26, 2007.

David E. Woods, O'Fallon, MO, for appellant.

Edward J. Rogers, AUSA, St. Louis, MO, for appellee.

Before MURPHY, MELLOY, and COLLOTON, Circuit Judges.

MURPHY, Circuit Judge.

A jury convicted Winston Gordon of conspiracy to distribute in excess of 100 kilograms of marijuana, and the district court¹ sentenced him to 292 months. Gordon appeals, challenging an evidentiary ruling, a jury instruction, the sufficiency of the evidence, and his sentence. We affirm.

Gordon came to the attention of the Phelps County Sheriff's Department as a result of its traffic stop on January 13, 2004 of a tractor trailer driven by Ira Helton. Helton consented to a search which led to the discovery of boxes which appeared to contain marijuana, and the truck was then taken to the sheriff's department in Rolla, Missouri. A thorough search uncovered twenty four boxes of marijuana interspersed among a shipment of seafood. Each of the boxes of marijuana weighed approximately fifty pounds, with a total weight of 1471 pounds or 667 kilograms. After finding the marijuana and contacting Drug Enforcement Administration (DEA) agents, Detective Mark Williams noticed there were several incoming calls from "Winston" on Helton's mobile phone. The next morning Helton agreed to cooperate with the authorities, and he explained that he had been hired by Winston Gordon in 2003 to drive loads of seafood and marijuana across the country.

Helton agreed to try to lure Gordon to Rolla, and he placed several recorded calls to Gordon and his wife, Roberta Allen. Helton told them that he had been arrested in Rolla after a prostitute claimed he had raped her but the authorities had not searched the truck. He urged them to retrieve the truck from Rolla as soon as possible. After the sheriff's department had moved the truck to a local tow lot, the operator of the lot notified Detective Williams that Roberta Allen had called and said that Emmett Emil Lee was on his way to pick up the truck. Lee flew from Chicago to St. Louis and took a taxi from there to Rolla, where he was arrested and admitted that Gordon had sent him to Missouri. At this point DEA agents took Helton and Lee, who is the uncle of Roberta Allen, into federal custody. A federal grand jury subsequently indicted Gordon, Allen, Lee, and Helton for conspiracy to distribute marijuana. (Lee was also charged with interstate travel in aid of the conspiracy.) Helton pled guilty, and based on information he provided after his indictment, a grand jury returned a superseding indictment against Gordon, Allen, and Lee, and arrest warrants were issued for Gordon and Allen. At trial Allen and Lee were acquitted, but Gordon was found guilty.

Helton testified at trial that his first contact with Gordon had been facilitated by "Donald," a trucker with whom he had previously worked in St. Louis. Donald told Helton he had a new job as a driver transporting marijuana, and he arranged for Helton to meet Gordon. During that meeting Helton indicated that he was interested in driving for Gordon's business, Swing Easy Transportation Company. Gordon arranged to pay Helton approximately $550 per week and $1000 per shipment of marijuana. The two met the following month at a truck stop near East St. Louis, Illinois and then drove a truck loaded with seafood to California. They delivered the seafood and picked up a new load destined for the East Coast. On their way east they stopped at a truck stop in Phoenix, Arizona. There they unhitched the trailer and then drove the tractor to a residence where Gordon left Helton. Gordon was gone for an hour, and on his return Helton saw there were twelve boxes of marijuana inside the tractor. He and Gordon later loaded the fifty pound boxes into the trailer at a truck stop outside of Phoenix.

From Phoenix the pair headed to Chicago, where they met "Kojak" and "Earl" who unloaded a few boxes of marijuana at a multifamily residence, one unit of which was occupied by Lee. Gordon and Helton continued from Chicago to Hartford, Connecticut where the remainder of the marijuana was delivered to "Fox." The pair delivered the seafood to cities throughout the upper East Coast, then picked up a new load of seafood to be delivered to California. On the drive back to California, they stopped in Hartford where they picked up a bag of money from Fox which they left in Chicago.

Helton made approximately nine similar trips from California to the East Coast and back on behalf of Gordon. Eight of those trips involved picking up, transporting, and delivering anywhere from twelve to twenty four boxes of marijuana, from Arizona to places in the middle and east of the country; the proceeds were transported to Chicago. The approximate total weight of the marijuana Helton testified to having transported and distributed, with or at the direction of Gordon, was 6071 pounds or 2754 kilograms. He also testified that on these trips he had seen Gordon carrying a 9 mm pistol in his briefcase numerous times; such a pistol was seized from Gordon's house after his arrest. Helton testified that he also made seafood and marijuana deliveries with his former coworker Donald, with Gordon's nephew Ismael Lamont Kilgore, and with Lee. On one trip he delivered boxes of marijuana to "King Dad" in Philadelphia instead of to Fox in Hartford.

Helton and Lee made their final circuit trip with the usual marijuana pickup in Arizona and dropoffs in Chicago and on the East Coast. On their way back to California Helton dropped Lee in Chicago and continued on by himself. He delivered the seafood in California and picked up a new load, then stopped in Tucson for twelve boxes of marijuana and in Phoenix for twelve more. While en route to Chicago, he was stopped in Phelps County, Missouri, and 667 kilograms of marijuana were seized from his trailer.

About two months earlier, Gordon had been stopped for speeding in Colorado by Geary County deputy Willie Wallenberg and taken into custody for driving on a suspended license. At trial Deputy Wallenberg testified that he found $10460 cash in Gordon's truck. A drug dog brought to the scene alerted inside the vehicle and to the money, and the money and vehicle were impounded. Gordon was later released with his money when no drugs were found on him or in the vehicle. Gordon's attorney tried to cross examine Deputy Wallenberg about statements he had made about the cash in an affidavit. The government objected that the question was outside the scope of its direct examination which had been limited to the facts of Gordon's arrest. The district court sustained the objection over Gordon's argument that his inquiry was permissible under Fed.R.Evid. 106 and the rule of completeness.

Gordon moved for judgment of acquittal at the close of the government's case and again at the conclusion of the evidence. The motions were denied, and the district court instructed the jury on the greater offense of conspiracy to distribute in excess of 1000 kilograms of marijuana, as well as two lesser included offenses of conspiracy to distribute in excess of 100 kilograms or to distribute any amount of marijuana. The jury was unable to reach a unanimous decision on the greater charge against Gordon but found him guilty of conspiracy to distribute in excess of 100 kilograms, making it unnecessary for it to consider the other lesser included offense charge.

At sentencing the district court attributed 1000 to 3000 kilograms of marijuana to Gordon, resulting in a base offense level of 32 under U.S.S.G. § 2D1.1(c)(4). It then added two levels for possession of a firearm in connection with a drug offense under U.S.S.G. § 2D1.1(b)(1), and four levels for being the organizer or leader of the drug conspiracy, under U.S.S.G. § 3B 1.1(a). Gordon's adjusted total offense level of 38 combined with his criminal category III resulted in an advisory guideline sentencing range of 292 to 365 months. The statutory range of punishment for conspiracy to distribute 100 kilograms or more of marijuana is five to forty years or 60 to 480 months. 21 U.S.C. § 841(b)(1)(B)(vii). The court sentenced Gordon to serve 292 months.²

Gordon appeals, objecting to the denial of his motion for judgment of acquittal, to a jury instruction on the lesser included offense, the limitation on his questioning of Deputy Wallenberg, and his sentence.

Gordon argues that the district court erred by not allowing him to cross examine Deputy Wallenberg about potentially exculpatory statements in his affidavit. He cites Rule 106 for the proposition that after one party inquires into a portion of a statement or writing, the other party must be allowed to show the full context by inquiring into the rest of the statement. See, e.g., United States v. King, 351 F.3d 859, 866 (8th Cir.2003). The government argues that Rule 106 does not apply because it limited its examination of Wallenberg to the facts and events of Gordon's arrest without inquiring into any statements or writings and that the question would have called for inadmissible hearsay in any event.

We review a district court's evidentiary rulings for abuse of discretion, including those regarding the scope of cross examination. See, e.g., General Elec. Co. v. Joiner, 522 U.S. 136, 141, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997); King, 351 F.3d at 866. On direct examination the government asked Deputy Wallenberg to describe the events of Gordon's arrest and release. Wallenberg testified that he found $10460 in Gordon's vehicle, that a drug dog...