U.S. v. King, 94-1026

• Decision Date: 22 September 1994
• Docket Number: No. 94-1026,94-1026
• Citation: 36 F.3d 728
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William KING, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 728

36 F.3d 728

UNITED STATES of America, Plaintiff-Appellee, v. William KING, Jr., Defendant-Appellant.

No. 94-1026.

United States Court of Appeals,

Eighth Circuit.

Submitted May 11, 1994.

Decided Sept. 22, 1994.

Thomas Day, St. Louis, MO, argued, for appellant.

Joseph Landolt, St. Louis, MO, argued, for appellee.

Before LOKEN, Circuit Judge, BRIGHT, Senior Circuit Judge, and HANSEN, Circuit Judge.

HANSEN, Circuit Judge.

William King, Jr., pleaded guilty to possession of cocaine with intent to distribute in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(C), and was convicted by a jury of carrying a firearm during a drug trafficking offense in violation of 18 U.S.C. Sec. 924(c). King appeals his conviction on the firearm count contending that the district court ¹ erred in admitting testimony that constituted hearsay under Federal Rule of Evidence 801, excludable and prejudicial prior bad acts under Federal Rule of Evidence 404(b), and violated his rights under the Confrontation Clause of the Sixth Amendment. King also complains that the district court erred in failing to sustain his objection to statements made by the prosecutor in closing arguments which he contends impermissibly shifted the burden of proof. Finally, King asserts that the district court erred in imposing his sentence by failing to grant him a two-level reduction for acceptance of responsibility pursuant to U.S.S.G. Sec. 3E1.1(a). For the reasons articulated below, we affirm.

I. BACKGROUND

In early June 1992, Special Agent Terry Bohan of the Bureau of Alcohol, Tobacco and Firearms (hereinafter "ATF") acquired information that an individual identified as "Bill" was dealing cocaine at 4044-A McRee in St. Louis, Missouri. The information described "Bill" as a black male between 5'8"' and 5'10" with a thin build and long or curly type hair and who drove a black or dark blue Trans Am or Camaro with a T-top. Agent Bohan also learned that "Bill" carried a handgun.

Agent Bohan began conducting surveillance at 4044-A McRee on June 2, 1992, and based upon his observations, applied for a federal search warrant for the premises. The search warrant was executed on June 4 at 6:30 p.m. by several ATF agents, including Agent Bohan, along with members of the St. Louis Metropolitan Police Department. Agent Bohan testified that his duty during the execution of the warrant was to serve as "front cover," meaning he was to cover a corner of the premises so two sides of the building could be monitored simultaneously.

From his vantage point outside the residence and as the warrant was being executed, Agent Bohan observed a window open and a thin black male wearing a flowered-type print shirt with long curly hair throw an object out of the window. Agent Bohan immediately seized it. The object was a clear baggie containing white powder and other baggies. The white powder was later analyzed and determined to be 12.4 grams of cocaine.

Agent Bohan turned the baggie over to another officer and entered the premises where he observed that the person he saw throw the baggie out the window was in custody. That person was the defendant, William King. During the search of King's apartment, officers discovered a Derringer-type, two-shot pistol in a windowsill in the living room area. The gun contained one .22 caliber cartridge in the chamber at the time it was recovered.

Agent Bohan testified at trial that after completing the search at 4044-A McRee, he took King to the ATF Office in St. Louis where he advised King of his rights. King indicated that he fully understood his rights and discussed with Agent Bohan the events which transpired earlier that evening. King stated that he and another person had acquired a half-ounce of cocaine and that they were attempting to make it into "rocks" for distribution from his residence when he heard shouts of "police." King thereupon ran to the bathroom, opened a window, and threw the baggie out the window. He then ran back through the house, grabbed the gun, and threw it into the window in the living room. King later reduced his oral statements to a writing in which he stated:

On June 4 1992 I got 1/2 ounce of cocaine to sell from my house at 4044A McRee St. Louis Mo. I sell packages 16th and 50th's.

I was in the kitchen with Anthony Coleman and we were about to rock up some packages when we heard the police outside yelling. I ran to the bathroom and through [sic] the cocaine out of the window. I then ran through [sic] the gun into the window in the living room. I used the gun to protect myself when I sell drugs. I've been selling drugs for about a year.

(Appellee's Exhibit 1). The written statement mirrors the oral confession King made earlier to Agent Bohan, with the exception of the last two sentences which King added when he was writing the document.

King was subsequently charged with possession of cocaine with intent to distribute in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(c), and carrying a firearm during the commission of a drug trafficking offense in violation of 18 U.S.C. Sec. 924(c). On the second day of trial, King pleaded guilty to the charge of possession with intent to distribute. The trial continued on the firearm charge.

King testified at trial that he was a drug dealer and admitted that he dropped the baggie which contained cocaine out of the window but denied ownership of the gun. He asserted that the gun belonged to his girlfriend, Charlene Riley, who lived at the same residence. He denied using the gun for protection in his drug trade or exercising control over it at any time. King testified that he drafted the first paragraph of the written statement he provided to Agent Bohan. King asserted, however, that in the second paragraph of the statement he merely transcribed what Agent Bohan instructed him to write. King testified that he copied down Bohan's dictation for the contents of the second paragraph because Bohan promised that if he assisted law enforcement officers, his incriminating statement along with the gun and drugs would be destroyed.

Charlene Riley testified that she resided at 4044-A McRee with King and that she owned the gun seized from the apartment. She stated that King never possessed or used the weapon and that she kept the gun on a mantlepiece over her bed. She admitted on cross examination that King could have exercised control over the weapon if he desired. Finally, she admitted that although the gun was in fact hers, she had not contacted anyone or made any arrangement to obtain its return after it had been seized.

II. DISCUSSION

A. Admission of Out-of-Court Information

King first argues that the trial court erred in permitting Special Agent Bohan to testify that prior to conducting surveillance he received information that a man named "Bill" was selling cocaine from 4044-A McRee while possessing a handgun. King contends that this evidence is inadmissible hearsay under Federal Rule of Evidence 801, prejudicial prior bad acts evidence under Federal Rule of Evidence 404(b), and that its admission violated his right to confrontation under the Sixth Amendment. ² The government argues that the statements were not hearsay because they were offered for the limited purpose of explaining why a police investigation was undertaken and not for the truth of the matter asserted. The government also argues that Rule 404(b) is inapplicable because these statements were not offered for their truth and, therefore, had no substantive effect on the jury's deliberations and, in any event, at trial King's objection was that he was not provided notice that 404(b) evidence would be used, not that the evidence was improper 404(b) evidence.

1. Hearsay and Confrontation Clause

Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801(c). However, an out-of-court statement is not considered hearsay if it is admitted not for its truth but for the limited purpose of explaining to the jury why a police investigation was undertaken. United States v. Collins, 996 F.2d 950, 953 (8th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 412, 126 L.Ed.2d 359 (1993); United States v. Watson, 952 F.2d 982, 987 (8th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1694, 118 L.Ed.2d 406 (1992). ³ We review the trial court's admission of evidence for a clear abuse of discretion. See United States v. Johnson, 934 F.2d 936, 942 (8th Cir.1991).

King acknowledges the above authority but contends that the statements offered in this case fall within the ambit of those we condemned in United States v. Azure, 845 F.2d 1503 (8th Cir.1988). We find Azure to be sufficiently distinguishable from the facts at hand. In Azure, a victim of sexual abuse informed a social worker that Azure was the perpetrator of her injury. Id. at 1506. The social worker was allowed to testify that the victim identified Azure as her abuser. Id. The government contended that the victim's out-of-court statements to the social worker were not offered for the truth of the matter asserted but merely "to explain why the investigation focussed on Azure." Id. at 1507. We held that this testimony was erroneously admitted because "[t]he only possible relevance of [the victim's] identification of Azure and of the government's subsequent investigation of him is that he in fact was the person who abused her." Id. at 1507.

In the case at bar, the trial judge stated in a proceeding held while the jury was out of the courtroom that the information was "simply background information laying the basis for the obtaining of the search warrant, and that it was appropriate for the jury to consider as information which could have led to the request by the agent for the search warrant and the subsequent issuance of the search warrant by Magistrate Perry. I further indicated to counsel [at the unreported sidebar...