U.S. v. McKneely

• Decision Date: 06 November 1995
• Docket Number: No. 94-1158,94-1158
• Citation: 69 F.3d 1067
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dracy Lamont McKNEELY, also known as Green Eyes, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1067

69 F.3d 1067

UNITED STATES of America, Plaintiff-Appellee, v. Dracy Lamont McKNEELY, also known as Green Eyes, Defendant-Appellant.

No. 94-1158.

United States Court of Appeals, Tenth Circuit.

Nov. 6, 1995.

Rehearing Denied Dec. 5, 1995.

Jeralyn E. Merritt, Denver, Colorado, for Defendant-Appellant.

John M. Hutchins, Assistant U.S. Attorney (Henry L. Solano, United States Attorney, District of Colorado, and Daniel J. Cassidy, Assistant U.S. Attorney, with him on the brief), Denver, Colorado, for Plaintiff-Appellee.

Before TACHA, LOGAN and BALDOCK, Circuit Judges.

LOGAN, Circuit Judge.

Defendant Dracy Lamont McKneely appeals from his conviction after jury trial and his sentence for possession with intent to distribute fifty grams or more of cocaine base in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(B)(iii) and 18 U.S.C. Sec. 2. On appeal he asserts that the district court erred in (1) denying his motion for judgment of acquittal based on insufficiency of the evidence (or for new trial on newly discovered evidence); (2) admitting audio and video tapes into evidence without (a) inquiring whether the consent to the recordings by the government's cooperating informant was knowing or voluntary and (b) determining whether the tapes contained inadmissible hearsay statements; (3) striking defense witness Shawn Mazique's trial testimony and/or failing to grant a mistrial; (4) denying defendant's motion for a continuance; (5) refusing his tendered jury instruction on aiding and abetting a crime; and (6) calculating his sentence under the sentencing guidelines. Defendant also asserts that (7) his trial counsel was constitutionally ineffective; (8) the cumulative effects of trial court errors and/or acts and omissions of trial counsel deprived him of a fair trial; (9) the penalties provided for cocaine base violate defendant's constitutional rights to equal protection and due process under the law or amount to cruel and unusual punishment; and (10) the life sentence imposed on him constitutes cruel and unusual punishment or violates his right to equal protection under the law.

Defendant was indicted on two counts: (1) that between November 1, 1991, and February 13, 1992, he and others known and unknown, including Tyrone Day and Shawn Mazique, conspired to possess with intent to distribute fifty grams or more of cocaine base, and (2) that on February 13, 1992, he possessed with intent to distribute approximately 251 grams of cocaine base. At defendant's request the conspiracy count was severed from the possession count with the latter count to be tried first. After his conviction for possession with intent to distribute, defendant was sentenced to life in prison. Defendant appeals that conviction and sentence.

I Facts

On February 13, 1992, Denver police detectives Jerry Snow and Dennis Petersohn, assigned to the Denver Stapleton Airport narcotics unit, intercepted and arrested Charlene Gross as she arrived in Denver. She had on her person 251 grams of crack cocaine. Gross decided to cooperate with the officers to help them apprehend others involved in the drug transaction. The detectives arranged to meet Special Agent Michael Pope of the Drug Enforcement Administration at a hotel where they set up audio and video receiving equipment to record Gross as she met her contacts.

Agent Pope told Gross to call her source in California (from whence she flew); she called a number that had been written on her airline ticket folder, using the Los Angeles area code. She reached a man she knew as "Green Eyes," whom she later identified in court as defendant McKneely. ¹ Defendant gave her two pager numbers, including one for "Tyrone," and told her to page them at nine o'clock. Gross asked defendant about money to get home and he replied in part: "Just make, as soon as they make two thousand, you being [sic] me two thousand back. You know what I'm saying." Gov't.Ex. 5 at 2. Defendant told her to page him as soon as "y'all get together," and to "leave that shit there in the room." Id.

Gross called one of the pager numbers, and about an hour later two men, later identified as Tyrone Day and Shawn Mazique, arrived at Gross' hotel room. She let them in the room and laid down on the bed next to the crack cocaine. The video tape shows Gross, Day and Mazique discussing the distribution of the cocaine and how much to sell it for. There are several references to "Dracy" including: [Mazique] "I was the first one to do anything for Dracy [unintelligible] here." Gov't Ex. 7 at 4. [Mazique] "Dracy make triple out here what he make up there," id. at 6; [Day or Mazique] "I thought Dracy bought the shit," id. at 7; and [Mazique] "Tell Dracy when you get back I say to go [expletive]. Leave me out here stranded," id. at 1.

Day told Gross that he was calling long distance to Dracy Day began the conversation by saying "Hello, Dracy there? What's up man? Hey." Id. at 6. Day then said "Charlene ain't got no money on her. We ain't got no money," Ex. 7 at 6, and "it's gonna take a meeting." Id. at 6. Day spoke then about getting a scale, weighing it, bagging it and getting rid of it, that people were paging him right then. Id. at 9. Day, Mazique and Gross discussed leaving and as they exited the room the officers arrested them. Day had a pager and the crack cocaine in his pants pocket.

At trial Gross testified that defendant, whom she then knew only as "Green Eyes," and had known for "maybe a year" before her flight to Denver, had asked her to go to Denver to transport drugs. V R. 42-43. She testified, however, that he was not the person who actually gave her the drugs. She said that she did not remember who gave her the airline ticket, or whether she bought it herself, because she was high on drugs at the time.

II

Motion for Judgment of Acquittal or New Trial

A

Defendant first asserts that the government offered insufficient evidence to convict him of aiding and abetting possession of cocaine with intent to distribute. We view the evidence in the light most favorable to the government and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Reddeck, 22 F.3d 1504, 1507 (10th Cir.1994). We must accept the jury's resolution of conflicting evidence and assessment of witness credibility. United States v. Davis, 1 F.3d 1014, 1017 (10th Cir.1993).

"To be guilty of aiding and abetting a crime, the defendant must willfully associate himself with the criminal venture and seek to make it succeed through some action on his part." United States v. Esparsen, 930 F.2d 1461, 1470 (10th Cir.1991), cert. denied, 502 U.S. 1036, 112 S.Ct. 882, 116 L.Ed.2d 786 (1992). "[P]articipation may be established by circumstantial evidence, and the evidence may be of relatively slight moment." Id. (quotations omitted).

Defendant asserts that the government presented two disjunctive theories of aiding and abetting by defendant: one that defendant aided and abetted Gross in her possession of the cocaine with intent to distribute; the other that defendant aided and abetted Mazique's and Day's possession with intent to distribute. Defendant's argument is that once Gross became a government agent she lacked the specific intent to possess cocaine with intent to distribute and therefore defendant could not have aided and abetted her in that crime; thus one of the disjunctive theories was legally impossible, requiring reversal. See United States v. Self, 2 F.3d 1071, 1093 (10th Cir.1993) (when the government relies on disjunctive theories and the jury could have based its general verdict on a legally or constitutionally infirm theory, defendant is entitled to reversal). This argument ignores the evidence that defendant initiated Gross' travel to Denver with the cocaine, which is sufficient to show aiding and abetting notwithstanding Gross' testimony that defendant was not the person who actually gave her the drugs she carried to Denver.

Because sufficient evidence supported a finding that defendant aided and abetted Gross, reversal is not called for even if there was insufficient evidence that defendant aided or abetted Mazique or Day. See United States v. Pace, 981 F.2d 1123, 1130 (10th Cir.1992) (factual insufficiency of one or more of objects of conspiracy does not require reversal because we assume jury rejected factually inadequate theory), cert. denied, --- U.S. ----, 113 S.Ct. 1401, 122 L.Ed.2d 774 (1993). In any event, the government produced evidence that defendant was involved in connecting Day and Mazique with the drug source (through Gross) so that they could then possess the drugs with the intent to distribute them. There was sufficient evidence on which a jury could find that defendant aided and abetted Gross, Day and Mazique.

B

Defendant also asserts that count two as it was submitted to the jury charged more than one offense in a single count (e.g., aiding and abetting Gross, or Mazique and Day) and thus was duplicitous. Duplicity, the joining of two or more offenses in one count, creates the possibility that the jury may convict the defendant without unanimously agreeing on guilt for the same offense, see United States v. Haddock, 956 F.2d 1534, 1546 (10th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 88, 121 L.Ed.2d 50 (1992), and also raises double jeopardy concerns. But "[w]e know of no rule that renders an indictment duplicitous because it charges as one joint offense a single completed transaction instead of charging in separate counts as many offenses as the evidence at trial might conceivably sustain." Korholz v. United States, 269 F.2d 897, 901 (10th Cir.1959), cert. denied, 361 U.S. 929, 80 S.Ct. 367, 4 L.Ed.2d 352 (1960) (quoting Mellor v. United States, 160 F.2d 757, 762 (8th Cir.1947)); see also United States v. Papia, 910 F.2d 1357, 1364 (7th Cir.1990). This is a frivolous argument in the instant case because defendant's role as an aider...