U.S. v. Logan, 94-1074

• Decision Date: 05 April 1995
• Docket Number: No. 94-1074,94-1074
• Citation: 49 F.3d 352
• Parties: 41 Fed. R. Evid. Serv. 1014 UNITED STATES of America, Appellee, v. Darrell P. LOGAN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 352

49 F.3d 352

41 Fed. R. Evid. Serv. 1014

UNITED STATES of America, Appellee, v. Darrell P. LOGAN, Appellant.

No. 94-1074.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 16, 1994.

Filed March 7, 1995.

Rehearing Denied April 5, 1995.

Elizabeth Unger Carlyle, Lee's Summit, MO, argued, for appellant.

Peter Martin Ossorio, Asst. U.S. Atty., Kansas City, MO, argued, for appellee.

Before MAGILL, BEAM, and LOKEN, Circuit Judges.

MAGILL, Circuit Judge.

Darrell P. Logan appeals his jury conviction of conspiracy to distribute cocaine in violation of 21 U.S.C. Secs. 841(b)(1)(A) and 846. Logan raises six issues on appeal: (1) a Batson ¹ challenge; (2) the district court ² erred by refusing to admit evidence of a conversation between coconspirators; (3) the court erred by refusing to give a duress or coercion jury instruction; (4) insufficiency of the evidence; (5) sentencing error in refusing to adjust Logan's sentence downward because he was a minor participant; and (6) ineffective assistance of trial counsel. We affirm.

I. BACKGROUND

Logan challenges the sufficiency of the evidence; accordingly, we view the evidence in the light most favorable to the government, giving it the benefit of all favorable inferences. United States v. Agofsky, 20 F.3d 866, 869 (8th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 363, 130 L.Ed.2d 316 (1994). We will discuss only the facts necessary to decide the issues before us.

In January 1993, Logan became involved in an ongoing conspiracy transporting cocaine from Los Angeles for distribution in Kansas City. The participants referred to their drug trafficking and distribution activities as "Snake Enterprise." Although Logan did not become involved in Snake Enterprise until January 1993, the Enterprise began in March 1992. Originally, Aaron Reed, the kingpin of the Enterprise, who lived in Los Angeles, arranged to transport cocaine to Kenneth Hulett to sell in Kansas City. At this time, Tawnya Anderson and Dameon Brown used various forms of public transportation to transport drugs and money to and from Los Angeles and Kansas City. However, this method of transportation soon proved problematic. In July 1992, $21,020 in drug proceeds was seized from Brown at the Kansas City International Airport. In August 1992, $38,000 in drug proceeds was seized from Anderson at the Amtrak station in Kansas City. Also in August, Anderson began maintaining records for the Enterprise and relocated to Kansas City to oversee the distribution activities in Kansas City.

Reed began to realize that public transportation was too dangerous and purchased several vehicles. When the vehicles were used, cocaine was placed in the spare tire and driven to Kansas City. Once the cocaine was sold, the drug proceeds were placed in the spare tire and driven to Los Angeles. In the beginning, Brown was the "lead driver." Various other individuals were also recruited to make the nonstop drives between Los Angeles and Kansas City.

Another problem arose: Reed and Brown both had to serve three months, from January 1993 to March 1993, in jail in California on an unrelated state drug charge. Accordingly, Reed needed to recruit more people to keep the Enterprise running. At this point, Anderson recruited Logan to work as a driver for Snake Enterprise, transporting cocaine from Los Angeles to Kansas City, then returning to Los Angeles with the drug proceeds. An associate of Reed's ran the California side of the operation and Anderson continued to run the Kansas City side.

At first, Logan accompanied other drivers to and from Los Angeles and Kansas City to learn the route that the Enterprise used. Eventually, Logan became the lead driver for Snake Enterprise, making at least five trips as the lead driver. Logan was paid between $1000 to $2000 per one-way trip depending upon the amount of cocaine or money involved. Occasionally, Kimberly Ramirez or Shelia Edwin would accompany Logan on these trips. Their purpose was simply to make the trips appear less suspicious, and they would receive $500 per trip. Logan eventually rented an apartment in Kansas City so that he would have a place to stay between trips.

In June 1993, undercover officers in Kansas City made controlled purchases of cocaine from Hulett. A search warrant was obtained for Hulett's residence and three kilograms of cocaine were found, some in the process of being "cooked" into "crack" cocaine. Hulett then began cooperating with the government, acting as an informant. As a result of his cooperation, Reed, Anderson, Brown, Ramirez and Logan were indicted for conspiracy to distribute more than five kilograms of cocaine. Reed, ³ Anderson, Brown and Ramirez all pled guilty to the charged offense.

Logan proceeded to a jury trial. At trial, he advanced three defense theories: the kingpin of Snake Enterprise, Reed, was a violent man who threatened Logan and others in the conspiracy; at the time Logan agreed to drive cars for Reed, he was unaware that he would be transporting drugs and money; and once he became aware of what was going on, he could not withdraw from the conspiracy. Hulett, Anderson, Brown and Ramirez all testified as government witnesses. Logan did not testify at trial. Logan proffered a jury instruction on the defense of coercion or duress. The district court refused this instruction, holding that it was not supported by the evidence. The jury convicted Logan and he was sentenced to 151 months in prison. Further details will be developed as we treat those specific issues.

II. DISCUSSION

Logan appeals, raising six issues. First, the government's use of a preemptory challenge to strike a black juror violated Batson. Second, the district court erred by excluding a tape of threatening remarks made by Reed to Hulett. Third, the district court erred in refusing to give a jury instruction on coercion or duress. Fourth, the evidence at trial was insufficient to sustain a conviction for conspiracy. Fifth, the district court erred by refusing to allow a minor participant departure in calculating his sentence under the Sentencing Guidelines. And finally, he received ineffective assistance of counsel because his trial attorney failed to object to certain hearsay statements at trial. We address each issue in turn.

A. Batson

Logan asserts the district court erred in finding that his equal protection rights under Batson were not violated when the government used a peremptory challenge to strike an African-American juror, Ella Potts, from the jury panel.

Batson held that use of peremptory challenges to strike potential jurors "solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the [government's] case against a black defendant" violated the Equal Protection Clause of the Fourteenth Amendment. 476 U.S. at 89, 106 S.Ct. at 1719. If Logan makes a prima facie showing of racial discrimination under Batson, the burden shifts to the government to offer "a clear and reasonably specific explanation of his [or her] legitimate reasons for exercising the challenges." Id. (internal quotations and citations omitted) (emphasis in original). Logan may, but is not required to, show that the government's offered reason is pretextual. United States v. Brooks, 2 F.3d 838, 840 (8th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1117, 127 L.Ed.2d 427 (1994). Finally, the district court must determine whether Logan has established purposeful discrimination by the government. Id.

The district court's determination that there was no purposeful discrimination is a factual finding; accordingly, we review for clear error. United States v. Wilson, 884 F.2d 1121, 1124 (8th Cir.1989) (en banc). We give the district court's findings great deference when they rest upon an evaluation of credibility. Id. A finding is clearly erroneous if, based upon our review of all the evidence, we are "left with the definite and firm conviction that a mistake has been committed." Id. (internal quotations and citations omitted).

Initially, the government attempted to challenge Ms. Potts for cause because she answered a question about prior jury service when the court was inquiring about prior grand jury service, a delay of approximately fifteen minutes from when the court inquired about prior jury service. In response to the challenge for cause, the court conducted an in camera examination of Ms. Potts. Ms. Potts explained that her delay in answering was because, at that time, she was confused about the questions asked. The court denied the government's challenge for cause and the government exercised a peremptory strike against Ms. Potts.

The district court required the government to offer reasons for its use of a peremptory strike against Ms. Potts, without expressly finding that Logan had made a prima facie showing of purposeful discrimination. The government stated that it believed Ms. Potts was either "inattentive or confused or evasive," Voir Dire Tr. at 66, in her responses to voir dire questions and in camera questions, specifically noting that she offered an inaudible response when the court first asked about prior jury duty, answering the question approximately fifteen minutes later. The district court found that the government's reason for striking Ms. Potts was legitimate and it observed that Ms. Potts was neither attentive nor responsive to questions asked during voir dire and in chambers. Id.

Logan argues the district court erred because two other jurors provided delayed responses to voir dire questions and one other juror gave a confused response to a question. Logan does not, however, argue that any of these three potential jurors were either inattentive or nonresponsive to questions asked of them. Accordingly, they are not similarly situated to Ms. Potts. The district court's finding that Ms. Potts was neither attentive nor responsive to questions during both voir dire and the in camera...