U.S. v. Hardy

• Decision Date: 19 May 2011
• Docket Number: No. 08–5991.,08–5991.
• Citation: 643 F.3d 143,85 Fed. R. Evid. Serv. 484
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.DeMarcus HARDY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

643 F.3d 143

85 Fed. R. Evid. Serv. 484

UNITED STATES of America, Plaintiff–Appellee,

v.DeMarcus HARDY, Defendant–Appellant.

No. 08–5991.

United States Court of Appeals, Sixth Circuit.

Argued: Jan. 14, 2011.Decided and Filed: May 19, 2011.

ARGUED: Mark Wettle, Louisville, Kentucky, for Appellant. Zachary C. Bolitho, Assistant United States Attorney, Knoxville, Tennessee, for Appellee. ON BRIEF: Mark Wettle, Louisville, Kentucky, for Appellant. Zachary C. Bolitho, Assistant United States Attorney, Knoxville, Tennessee, Steven S. Neff, Assistant United States Attorney, Chattanooga, Tennessee, for Appellee.

Before: SUHRHEINRICH, COLE, and COOK, Circuit Judges.SUHRHEINRICH, J., delivered the opinion of the court, in which COOK, J., joined. COLE, J. (pp. 159–62), delivered a separate dissenting opinion.

OPINION

SUHRHEINRICH, Circuit Judge.

Defendant DeMarcus Hardy appeals his conviction and sentence for drugs and firearms convictions following a jury trial. Specifically, he challenges the admission of prior, uncharged drug activity as a violation of Fed.R.Evid. 404(b), as well as the district court's decision to grant an upward departure at sentencing. We AFFIRM.

I. Background

A. Pretrial Proceedings

In December 2006, based on a tip from a confidential informant, the Special Investigations Unit of the Chattanooga Police Department obtained a search warrant for Hardy's house at 3412 Jones Street in Chattanooga, Tennessee. On December 11, 2006, ten police officers executed the warrant. As they pulled up to the house, a person on the front porch started yelling “Police” in an apparent attempt to warn those inside. Police jumped out of the van, also yelled “Police” and “Search Warrant,” and descended on the house. Hardy burst through the door and took off running. Officers Sully Batts and Vernon Kimbrough eventually found him hiding in the backyard of another residence. They handcuffed him and brought him back to 3412 Jones Street. During the search of the house, the officers found two large plastic bags containing a total of 316.84 grams of crack cocaine inside of a jacket hanging in the rear bedroom. Attached to the jacket was a torn dry cleaning bag that bore the letters “D–E–M–A–R”—the first five letters of Hardy's name. In that same bedroom, the officers also discovered approximately $5,000 in cash stuffed in the pocket of a pair of jeans. A nine millimeter handgun was on the floor of the den. Hardy's wallet was close to the handgun. The officers also found .45 caliber ammunition, digital scales, and pieces of mail addressed to Hardy at the Jones Street address. Hardy repeatedly told the officers throughout the search that the drugs were his.

Hardy was charged with one count of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1); one count of possession with the intent to distribute fifty grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), and one count of possession of firearms in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). Hardy pleaded not guilty.

Prior to trial, the Government filed notice of its intent to introduce under Fed.R.Evid. 404(b) evidence of Hardy's prior sales of crack cocaine. Hardy filed a motion in limine. The motion was addressed at trial.

B. Trial

1. Government's Case

The Government called six witnesses. First, Detective Batts told the jury how Hardy fled from the house, and explained how the officers discovered the crack cocaine, the $5,000, the digital scales, the 9mm handgun, the .45 caliber ammunition, and the mail. Batts also related that Hardy claimed the drugs were his.

Next, Wendell Kilgore, a convicted drug dealer and Hardy's cellmate in the county jail, testified that Hardy told him that the police “caught him with, like, a half key of crack.” Kilgore also said Hardy told him he had “a trick up his sleeve” because other people were staying in the house when the warrant was executed.

2. Evidentiary Hearing

At this point the district court held a hearing on the admissibility of the Government's 404(b) evidence. The Government sought to introduce the testimony of Eugene Coleman and Steven Goodwin, both of whom would testify that they had purchased, or had been with others who had purchased, crack from Hardy. Hardy argued the evidence was being offered to show propensity. The Government responded that it was admissible to prove Hardy's specific intent to possess and specific intent to distribute drugs.

The district court held that evidence of Hardy's prior crack sales was admissible under Rule 404(b), citing, inter alia, United States v. Johnson, 27 F.3d 1186 (6th Cir.1994). The court observed that the Government did not have proof of actual possession, which was in dispute. The court found the probative value of the evidence in question outweighed unfair prejudice under Fed.R.Evid. 403 in light of the evidence and the defense. The court also issued a limiting instruction:

[L]et me advise you that this evidence is being admitted only for you to consider two issues. The first issue is whether the defendant had the intent to possess the drugs alleged in the indictment, and the second one is whether the defendant had the intent to distribute the drugs named in the indictment.... You cannot consider this testimony as evidence that the defendant committed the crime that he's on trial for now, other than those two issues. You can only consider this testimony in deciding whether the defendant had the intent as I've described it to you. Do not consider it for any other purpose.

The court repeated a similar instruction in its final charge to the jury.

Coleman testified that between 2002 and 2003 he sold Hardy approximately 4–1/2 ounces of crack cocaine on a weekly basis. Coleman said Hardy would then resell it. Goodwin testified that about one year before Hardy was arrested, Goodwin was with Isaac Moore when Moore purchased crack cocaine from Hardy.

Detective Andy Brown told the jury that based on his experience and training as a narcotics investigator, over 300 grams of crack cocaine is a distribution quantity. He said 300 grams of crack could service about 1,500 crack addicts, and had a street value of $60,000 to $65,000. Brown also stated that drug traffickers have digital scales “to make sure that they're giving the proper amount out when they sell it.” He told the jury that drug traffickers typically possess firearms to protect the drugs, their money, and themselves.

The Government's final witness was Investigator Lee Wolff. He assisted in the search. He heard Hardy claim ownership of the crack cocaine found in the jacket. Wolff further testified that before being transported to the police station Hardy asked for his shoes, which were laying on the floor near the 9mm handgun.

3. Hardy's Defense

Hardy took the stand in his own defense. He testified that the house on Jones Street was a “family house” where various family members occasionally stayed. Hardy said he fled on the night of December 11, 2006, because he thought the officers were “gangbang[ers]” who came to the house with the goal of retaliating against his cousins. He also said that the crack cocaine found in the jacket was not his, and denied telling the officers the contrary. He explained he had probably taken the jacket to the dry cleaners for somebody else and just placed it under his name. He further denied knowledge of the handgun found near his shoes and wallet. He said that it likely belonged to someone else in the house at the time of the search.

On cross-examination, Hardy claimed that he did not hear the officers yell “Police” and “Search Warrant” before he ran out of the house. He also told the jury that all of the Government's witnesses were liars who wanted to convict an innocent man. He acknowledged his prior convictions for felony rape, felony aggravated assault, and felony aggravated robbery. He also admitted that he had almost $600 cash in his wallet, even though he did not have a regular job.

Hardy's uncle, Jacob Barrow, also testified. Barrow stated that the house in question belonged to Hardy's grandmother before she died, and that since her death, numerous family members, including Hardy, resided there at different times.

On rebuttal, the Government called Investigator Vernon Kimbrough. Kimbrough testified that the officers were yelling “Police” as they exited the raid van. He also said that Hardy talked throughout the search and took “full responsibility” for the crack cocaine. Investigator Christopher Palmer, the Government's second rebuttal witness, corroborated Kimbrough's testimony.

In the jury instructions, the district court reminded the jury that testimony of Hardy's prior sales of crack cocaine could only be used as evidence of Hardy's “knowledge or intent to possess the drugs as well as his intent to distribute the drugs alleged in the superseding indictment. You must not consider it for any other purpose.”

The jury convicted Hardy on all three counts.

C. Sentencing

The presentence report set a base offense level of 32, and after a two-level increase for obstruction of justice under U.S. Sentencing Guidelines Manual, § 3C1.1, calculated Hardy's total offense level at 34. The presentence report listed Hardy's criminal history. It reported that Hardy had been convicted in state court of reckless endangerment after he caused serious bodily injury to another with a firearm on December 26, 1989. Hardy was sixteen years old at the time and served ten months of imprisonment. On July 3, 1992, Hardy was convicted of aggravated assault and aggravated robbery after he shot a person in the leg. He was discharged to probation. While on bond, Hardy broke into a woman's house, took her into a wooded area, forcibly raped her, and threatened to kill her if she screamed. He told the victim he had a gun. Hardy was convicted of rape, but received an eight-year suspended sentence. He...