U.S. v. Haynes, 88-2277

• Decision Date: 11 August 1989
• Docket Number: No. 88-2277,88-2277
• Citation: 881 F.2d 586
• Parties: 28 Fed. R. Evid. Serv. 751 UNITED STATES of America, Appellee, v. Lloyd Granville HAYNES, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 586

881 F.2d 586

28 Fed. R. Evid. Serv. 751

UNITED STATES of America, Appellee, v. Lloyd Granville HAYNES, Appellant.

No. 88-2277.

United States Court of Appeals Eighth Circuit.

Submitted June 12, 1989.

Decided Aug. 11, 1989.

Bruce Maloy, Atlanta, Ga., for appellant.

Linda L. Parker, Asst. U.S. Atty., Kansas City, Mo., for appellee.

Before ARNOLD and MAGILL, Circuit Judges, and HENLEY, Senior Circuit judge.

HENLEY, Senior Circuit Judge.

Lloyd Granville Haynes appeals from a final judgment entered in the District Court ¹ for the Western District of Missouri upon a jury verdict finding him guilty of one count of conspiracy to distribute cocaine in violation of 21 U.S.C. Secs. 846, 841(a)(1), and five counts of distribution of cocaine within 1,000 feet of a school in violation of 21 U.S.C. Secs. 841(a)(1), 845a(a), (schoolyard statute). Haynes was found not guilty of operating a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848 and not guilty of two distribution counts. The district court determined that, under the federal sentencing guidelines (guidelines), Haynes's base offense level was 34, which was enhanced by six levels. A two-level increase was assessed because Haynes was in possession of firearms both prior to and at the time of his arrest. See Guideline Sec. 2D1.1(b)(1). A four-level increase was assessed because the district court found that Haynes was the organizer and leader of a drug distribution scheme that involved five or more participants. See Guideline Sec. 3B1.1(a). The district court found that Haynes's adjusted offense level was 40, criminal history category I, and found that the Guideline range of punishment was 292 to 365 months. Haynes was sentenced to concurrent terms of 240 months on the conspiracy count and 365 months on each of the distribution counts; was sentenced to six years supervised release; was fined a total of $250,000.00; and was ordered to pay a special assessment of $50.00 on each of the distribution counts.

For reversal, Haynes argues that the district court erred in (1) admitting into evidence testimony of Haynes's prior marijuana dealings, (2) instructing the jury on aiding and abetting in connection with the schoolyard statute, and (3) misapplying the sentencing guidelines in determining his sentence. For the reasons discussed below, we affirm the judgment of the district court.

On December 10, 1987 Haynes was arrested following an extensive undercover investigation by the Kansas City Police Department Drug Enforcement Unit. The investigation culminated in a search of Haynes's residence at 5233 Cleveland, Kansas City, Missouri. A criminal complaint was filed on December 11, 1987, charging Haynes and five named codefendants with distribution of cocaine. On January 6, 1988 a nine-count indictment was filed in United States District Court against Haynes and his codefendants. The grand jury charged Haynes with engaging in a continuing criminal enterprise (CCE) from some time in 1986 to on or about December 10, 1987; with conspiracy to distribute cocaine with his codefendants and others from some time in 1986 to on or about December 10, 1987; and with seven counts of distribution of cocaine between October 8, 1987 and December 10, 1987, all of which occurred within 1,000 feet of a schoolyard. Haynes was charged with and convicted of violating the schoolyard statute as both a principal and an aider and abettor in violation of 18 U.S.C. Sec. 2. As has been noted, Haynes was acquitted of the CCE count and two distribution counts and was convicted on all other counts.

The government's evidence established that Haynes operated a network of crack houses in Kansas City. Undercover purchases were made at houses located at 4278 E. 61st Street, 4256 E. 61st Street, 3815 East 58th Terrace, 4922 Olive, and 5644 Norton. Haynes also operated a crack house at 6637-39 South Askew. The house on Askew, a duplex, was rented for Haynes by a third party who moved into one of the units. The individual became concerned about the consequences of the duplex being rented in his or her name and informed the Kansas City Police of the drug trafficking activity there. On August 28, 1986 a search warrant was obtained for the Askew duplex after a surveillance officer observed a Drug Enforcement Administration agent buy cocaine from an individual who first met with the agent, then went inside the Askew duplex and returned with cocaine which he delivered to the agent. Seized in the search were 153 grams of powder and crack cocaine, $20,000.00 in currency, drug paraphernalia, guns, and documents, including a paper with Haynes's phone number and Western Union Money Transfer Forms with the address of one of the 61st Street houses. Search warrants were also served at the Olive and Norton houses. Crack cocaine and firearms were found in those searches. Other evidence linking the crack houses to one another and to Haynes included the referral of undercover agents from one house to another when the supply of cocaine had run out at the first house, observations by undercover agents that Haynes associated with the occupants of the various houses, observations of Haynes picking up money at some of the houses, and letters seized in a search of Haynes's residence from two of the crack house workers who were serving federal prison terms in which letters they complained that Haynes was not taking proper care of them.

Between October 8, 1987 and December 10, 1987, Detective Rosilyn Morrison made a series of undercover cocaine buys from each of Haynes's five codefendants. Detective Morrison purchased cocaine from Haynes's codefendants on October 8, November 12, 19, 24, and 27, and December 4 and 10. On each occasion, the codefendants obtained the cocaine directly from Haynes. Haynes set the price and told the codefendants not to call him on the phone or bring anyone to his house. Haynes fronted the cocaine to his codefendants. After each sale they took the money to him, less the amount they kept for themselves. On one occasion, one codefendant acted as the go-between, delivering the cocaine to another codefendant and taking the money back to Haynes. Each sale to Detective Morrison and each delivery of the cocaine to the four female codefendants took place within 1,000 feet of J.S. Chick Elementary School. Haynes's residence was within 1,000 feet of the school property.

After the last buy on December 10, a search warrant was executed at Haynes's residence. The currency used during the buys on November 12, 19, 24 and December 4 was found hidden in a hole underneath the floor of Haynes's bedroom closet. The money from the December 10 buy was found on Haynes's bedroom floor. Also seized were drug paraphernalia, additional currency, and the aforementioned letters from the crack house workers in federal prison.

Evidence of Haynes's prior marijuana dealings

Haynes argues that the district court abused its discretion in admitting into evidence testimony from several of his co-defendants that he had operated "weed houses" from the mid-1970's to the mid-1980's. Haynes argues that this testimony was inadmissible because it did not tend to prove any issue in the trial. See Fed.R.Evid. 401, 402. Haynes argues alternatively that the testimony was inadmissible under Fed.R.Evid. 403 because "its probative value is substantially outweighed by the danger of unfair prejudice."

The government argues that the evidence of Haynes's involvement in the operation of weed houses during the 1970's was properly admissible under Fed.R.Evid. 404(b) as evidence that Haynes acted knowingly or intentionally and as evidence of a common scheme or plan. Alternatively, the government argues that the evidence was not other crimes evidence at all; rather, it was evidence of a continuing criminal enterprise and of Haynes's involvement in a conspiracy to distribute cocaine. The government premises its alternative argument on its contention that the operation of the drug houses was continuous from the 1970's with only the product line changing from marijuana to cocaine. We agree that the evidence of Haynes's prior marijuana dealings was properly admitted by the district court.

Evidence of other crimes and wrongful acts by a defendant is inadmissible if offered for the purpose of proving propensity. Fed.R.Evid. 404(b). Such evidence, however, is "admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Id. Other crimes evidence is admissible "if there is sufficient evidence to support a finding by the jury that the defendant committed the similar act," Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 1499, 99 L.Ed.2d 771 (1988), and the evidence is otherwise admissible under the Federal Rules of Evidence, see id. 108 S.Ct. at 1502. The other criminal conduct must also "involve an offense similar in kind and reasonably close in time to the charge at trial." United States v. Clemons, 503 F.2d 486, 489 (8th Cir.1974). "The trial court is vested with broad discretion in deciding whether to admit wrongful act evidence," United States v. Gustafson, 728 F.2d 1078, 1083 (8th Cir.), cert. denied, 469 U.S. 979, 105 S.Ct. 380, 83 L.Ed.2d 315 (1984), and "the decision to admit such evidence will only be reversed when it is clear that the questioned evidence has no bearing upon any of the issues involved at trial." Id. (citing United States v. Marshall, 683 F.2d 1212, 1215 (8th Cir.1982)).

In the instant case, the disputed evidence involves conduct that is remarkably similar to the conduct of which Haynes was accused. See Clemons, 503 F.2d at 489. Haynes's involvement in the operation of weed houses occurred over an extended period of time with no gap between the marijuana sales and the operation of the crack houses. See id. While the conduct may have reflected adversely on Haynes's character, it was admissible because it was...