U.S. v. Hartsfield

• Decision Date: 07 October 1992
• Docket Number: No. 91-2196,91-2196
• Citation: 976 F.2d 1349
• Parties: 36 Fed. R. Evid. Serv. 1237 UNITED STATES of America, Plaintiff-Appellee, v. Bryan Allen HARTSFIELD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1349

976 F.2d 1349

36 Fed. R. Evid. Serv. 1237

UNITED STATES of America, Plaintiff-Appellee, v. Bryan Allen HARTSFIELD, Defendant-Appellant.

No. 91-2196.

United States Court of Appeals Tenth Circuit.

Oct. 7, 1992.

James Rawley, Albuquerque, N.M., for defendant-appellant.

James D. Tierney, Asst. U.S. Atty., D.N.M., Albuquerque, N.M. (Don J. Svet, U.S. Atty., with him on the brief), for plaintiff-appellee.

Before McKAY, Chief Judge, BRORBY, Circuit Judge, and VAN SICKLE, District Judge. ¹

McKAY, Chief Judge.

Norman Truitt, a long-time friend of defendant, arrived in Albuquerque, New Mexico, on February 4, 1991, from Lubbock, Texas. After contacting defendant, Mr. Truitt and defendant went to a storage facility where Mr. Truitt rented a storage locker in which cocaine and cocaine base were placed later that day. Law enforcement officers obtained permission to bring a dog onto the premises and the dog "alerted" to the presence of controlled substances at the locker rented by Mr. Truitt and defendant. Later that day the officers obtained a search warrant, searched the storage unit, and found cocaine and cocaine base there. The storage unit was placed under surveillance, and when Mr. Truitt and defendant returned to the storage unit on February 5, 1991, they were arrested.

Following a trial by jury, defendant was convicted of three offenses: (1) conspiracy to possess with intent to distribute more than 500 grams of cocaine in violation of 21 U.S.C. §§ 841 and 846 (1988) and 18 U.S.C. § 2 (1988); (2) possession with intent to distribute more than 500 grams of cocaine base in violation of 21 U.S.C. § 841 (1988) and 18 U.S.C. § 2 (1988); and (3) possession with intent to distribute more than 500 grams of cocaine in violation of 21 U.S.C. § 841 (1988) and 18 U.S.C. § 2 (1988). Defendant appeals for relief from these convictions.

Defendant makes various claims as to the propriety of his trial. Defendant first argues that the trial court erroneously admitted highly prejudicial evidence. This evidence consisted of testimony concerning defendant's association with a gang known to participate in various drug-related activities and testimony concerning prior drug transactions in which defendant participated. This court reviews the trial court's admission of evidence for an abuse of discretion. United States v. Esparsen, 930 F.2d 1461, 1475-76 (10th Cir.1991). This court likewise reviews admission of evidence concerning a defendant's prior crimes, wrongs, or acts for an abuse of discretion. United States v. Harrison, 942 F.2d 751, 759 (10th Cir.1991).

Prior to trial, defendant filed a motion in limine seeking to exclude any reference to defendant's gang membership or any mention of defendant's participation in prior cocaine sales. The government opposed the motion, arguing that evidence to be presented at trial would establish that defendant was a member of a street gang whose primary purpose was to distribute crack cocaine. Therefore, proof of such an association was relevant to the specific intent element of conspiracy to distribute cocaine as charged in the indictment. The government also asserted that evidence of prior narcotics transactions was admissible to show a common plan, motive, or intent to distribute cocaine. The trial court denied the motion.

On appeal, defendant categorizes the evidence he sought to exclude into two categories: (1) gang association, and (2) prior drug dealings observed by law enforcement officials in which defendant and the alleged co-conspirator in this case, Mr. Truitt, were involved. Defendant contends that the trial court's decision to admit this evidence constitutes reversible error.

Mr. Truitt testified at trial that he and defendant were both members of the "Black Mafia Crip Dawgs." R. vol. V at 313-14. Police detective Smyth testified as an expert witness in gang investigations that the "Black Mafia Crip Dawgs" is a non-traditional gang whose main purpose is to distribute cocaine and crack cocaine. R. vol. V at 498-501. Detective Smyth also testified that defendant admitted his association with that gang. R. vol. V at 523. The government also introduced into evidence an envelope bearing the "Black Mafia Crip Dawgs" insignia which was found in the white Mustang defendant used to transport the cocaine and cocaine base to the locker facility at which defendant was later arrested.

Defendant contends that admitting evidence of gang membership where not necessary to show motive to commit the crime or bias of a defense witness constitutes reversible error because such evidence is highly prejudicial and outweighs any probative value the evidence may have. Appellant's Brief at 29 (citing United States v. Rodriguez, 925 F.2d 1049, 1053 (7th Cir.1990); John E. Theuman, Annotation, Admissibility of Evidence of Accused's Membership in Gang, 39 A.L.R.4th 775 (1985)). See also Fed.R.Evid. 403. Defendant asserts that the evidence of gang membership presented at trial had little probative value because the government failed to show any link between defendant's gang membership and bias of a defense witness or between defendant's gang membership and a motive to commit the crime.

The balancing of competing interests required by Rule 403 is a task to which the trial judge is particularly suited, United States v. Keys, 899 F.2d 983, 987 (10th Cir.1990), and "we will not disturb the trial judge's ruling absent a clear abuse of discretion." Id.

The two primary purposes for the government's use of evidence concerning defendant's membership in the "Black Mafia Crip Dawgs" were (1) to establish a connection between defendant and the white Mustang used to transport the cocaine and crack cocaine, and (2) to show the basis of Mr. Truitt's and defendant's relationship and the existence of the conspiracy. Because the record demonstrates the probative value of the defendant's gang association under the facts of this case, we hold that the trial court did not abuse its discretion in admitting evidence of defendant's gang membership.

Defendant also complains of evidence admitted by the trial court concerning prior investigations of defendant which did not result in criminal charges. Specifically, defendant points to the testimony of three law enforcement officers that had observed defendant and Mr. Truitt together when cocaine was sold. ² He asserts that such evidence constitutes character evidence inadmissible at trial under Fed.R.Evid. 404(b). However, because this evidence was probative of the existence of the actual conspiracy alleged in the instant case, Rule 404(b) is inapplicable because the testimony was not offered to prove "other crimes." See Fed.R.Evid. 404(b); United States v. Gomez, 810 F.2d 947, 958 (10th Cir.1987). Therefore, the trial court did not abuse its discretion in admitting this evidence.

On a related matter, defendant contends that the district court erred in denying defendant's motion for mistrial when law enforcement officers testified that they had seen defendant and Mr. Truitt together on prior occasions when cocaine was sold. This court reviews the trial court's denial of a motion for a mistrial under an abuse of discretion standard. United States v. Westbo, 576 F.2d 285, 292 (10th Cir.1978). Again, because this evidence tended to establish the existence of the conspiracy charged in this case, we hold that the trial court did not abuse its discretion in denying the motion for mistrial. See United States v. Gomez, 810 F.2d at 958.

Defendant next argues that insufficient evidence existed to support his conviction of conspiracy to possess with intent to distribute more than 500 grams of cocaine in violation of 21 U.S.C. §§ 841 and 846 (1988) and 18 U.S.C. § 2 (1988). When reviewing a challenge to the sufficiency of the evidence supporting a criminal conviction, "the appellate court must examine the evidence in the light most favorable to the government and then decide if there was sufficient proof, direct or circumstantial, to justify a finding of guilt beyond a reasonable doubt." United States v. Metropolitan Enterprises, Inc., 728 F.2d 444, 450 (10th Cir.1984).

In United States v. Bowie, 892 F.2d 1494 (10th Cir.1990), this court outlined the elements for the crime of conspiracy with which defendant is charged: "To obtain a conviction ... the government must establish by direct or circumstantial evidence that (1) a conspiracy existed, (2) the defendant knew at least the essential objectives of the conspiracy, and (3) the defendant knowingly and voluntarily participated in the conspiracy." Id. at 1497. Defendant's position on this issue appears to be that while defendant may have satisfied these elements, the alleged co-conspirator, Mr. Truitt, did not. Therefore, there can be no conspiracy.

Defendant argues that Mr. Truitt testified that he did not know cocaine was inside the cooler, and while he had previously done cocaine deals with defendant, Mr. Truitt did not come to Albuquerque for that purpose on February 4, 1991. Defendant also alleges that Mr. Truitt testified that he went to the storage locker containing the cocaine simply because defendant asked him to and not to further a drug distribution agreement. See R. vol. V at 363-64.

Thus, we must decide whether Mr. Truitt qualifies as a member of a conspiracy to distribute cocaine. We note here that Mr. Truitt's connection to the conspiracy "need only be slight" if there is sufficient evidence to establish the existence of the connection beyond a reasonable doubt. See United States v. Bowie, 892 F.2d at 1497 (quoting United States v. Batimana, 623 F.2d 1366, 1368 (9th Cir.), cert. denied, 449 U.S. 1038, 101 S.Ct. 617, 66 L.Ed.2d 500 (1980)). We hold that Mr. Truitt's testimony at trial was sufficient to establish the connection between Mr. Truitt and the conspiracy. Mr. Truitt testified that he had assisted defendant in prior drug sales. On those occasions Mr. Truitt's responsibility was to act as a "mus...