U.S. v. Nunn

• Decision Date: 23 July 1991
• Docket Number: No. 90-5230,90-5230
• Parties: UNITED STATES of America, Appellee, v. Serena Denise NUNN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1128

940 F.2d 1128

UNITED STATES of America, Appellee, v. Serena Denise NUNN, Appellant.

No. 90-5230.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 13, 1991.

Decided July 23, 1991.

Barry V. Voss, Minneapolis, Minn., for appellant.

Jon M. Hopeman (Jerome G. Arnold, Jon M. Hopeman and Denise Reilly, on brief), Minneapolis, Minn., for appellee.

Before FAGG and BEAM, Circuit Judges, and HEANEY, Senior Circuit Judge.

BEAM, Circuit Judge.

Serena Denise Nunn appeals from her convictions and sentences following a lengthy jury trial involving five other co-conspirators. Nunn was convicted of aiding and abetting the attempt to possess with intent to distribute twenty kilograms of cocaine on May 17, 1989, in violation of 21 U.S.C. Secs. 841(a)(1), 846 (1988) and 18 U.S.C. Sec. 2 (1988) (count 2); of possession with intent to distribute 4 grams of cocaine base and 6.5 grams of cocaine on February 1, 1989, in violation of 21 U.S.C. Sec. 841(a)(1) (count 12); and of conspiracy from 1984 to May 18, 1989, to possess with intent to distribute cocaine in violation of 21 U.S.C. Sec. 846 (1988) (count 32). Nunn was sentenced to three concurrent 188-month terms of imprisonment. On appeal, she argues that the district court improperly received into evidence a taped telephone conversation, that the evidence was insufficient to support her convictions, and that the district court erred at sentencing in calculating her base offense level. We affirm.

I. BACKGROUND

Serena Nunn's convictions stem from her participation in a far-flung conspiracy to distribute drugs in the Twin Cities. The conspiracy, headed by Ralph "Plukey" Duke, involved a host of people, many of them related to Duke or to each other. At the time of her arrest, for instance, Serena Nunn was the girlfriend of Duke's son, Ralph Lamont Nunn (Monte Nunn). Serena's mother, Shirley Billingsley, was also arrested for her involvement in the conspiracy, as were Serena's sister, Charlita Nunn, her cousins, Ronald Nunn and James Eric Nunn, and her uncle, James Nunn.

The government infiltrated the conspiracy through a reverse-sting operation using the efforts of Andrew Chambers, an undercover agent of the Drug Enforcement Administration. After a series of meetings, Chambers arranged the sale of twenty kilograms of cocaine to Monte Nunn on May 17, 1989. Given her presence at several of the meetings between Monte Nunn and Chambers and evidence of her involvement in the conspiracy, Serena was convicted of aiding and abetting the attempt to complete this transaction (count 2).

Serena's further involvement in the conspiracy was varied. For instance, wiretaps on two phones at 426 24th Avenue North in Minneapolis, the house Monte Nunn shared with his mother Doris Admon, produced several conversations, which were played to the jury, revealing that Serena took and relayed messages concerning drug transactions, made calls to members of the conspiracy demanding payment for drugs, made deliveries, and counted the proceeds from drug sales. The fruits of two search warrants also implicated Serena in the conspiracy. Pursuant to the first, executed on February 1, 1989, at the house Serena shared with her mother at 1414 Queen Avenue North in Minneapolis, officers found, among other items, a cardboard box containing cocaine and two letters addressed to Serena. While she was not present during the execution of the warrant, Serena was convicted of possessing this cocaine (count 12).

Serena was present at the execution of a second warrant, for the house Monte Nunn shared with his mother. The executing officers found her and more than $18,000 in cash in Monte Nunn's bedroom; Serena denied knowing either Monte Nunn or about the money. Serena was also observed driving Doris Admon to the Minneapolis airport on April 6, 1989, where Admon boarded a flight to Los Angeles. There, Admon was stopped by airport agents who seized about $34,000 in cash from her person. Together, these instances form the basis for Serena's convictions.

II. DISCUSSION

A. Admission of the Tape Recording

Nunn objects to the district court's admission of Exhibit 246, a recording of a conversation she had on March 4, 1989, with Kevin Allen Walker, an unnamed, unindicted co-conspirator. Walker, a well-known, street-level drug dealer in St. Paul who bought cocaine from Plukey Duke, was arrested on November 2, 1988, in possession of forty-five ounces of cocaine. He eventually entered a plea of guilty to possessing this amount. His conversation with Serena Nunn--which she initiated--occurred after he had entered the plea but while he was awaiting sentencing.

The portion of the conversation played to the jury begins with Walker complaining about returning to prison for the fourth time, to which Serena replies that someone must have informed on him. After then discussing the increasing number of drug-related arrests, Serena suggests to Walker that informants would be less of a problem if they were dealt with more severely.

[Nunn]: ... see the thing with it in Minnesota is, you know, people don't never kill the snitches here.

[Walker]: Yeah.

[Nunn]: You start ... killing [them] ... peoples gonna stop talkin.

[Walker]: Yeah, yeah.

[Nunn]: Because in Chicago and Detroit, they don't worry about nobody ... snitchin on them. Cause they know their ... life is at stake.

....

[Y]ou let some of [them] come up dead, they'll be thinking second about, you know?

Transcript of Exhibit 246, Appellant's Addendum at 8. The government argues that this conversation was an implicit--but clear--threat to Walker about what could happen to him should he turn against the conspirators.

On appeal, Nunn renews the arguments she made to the district court. First, she argues that the conversation is irrelevant as nothing more than "a general conversation about what should happen to informants." Brief for Appellant at 10; see Trial Transcript vol. 8, at 147 ("it doesn't establish any particular fact of consequence in this conspiracy or any of the substantive charges"). Second, Nunn argues that it should have been excluded as evidence of other crimes under Fed.R.Evid. 404(b). See Trial Transcript vol. 10, at 23. To the contrary, the government argues, the conversation was an "attempt to keep Walker from even considering becoming a government witness against members of the Duke conspiracy" and was, therefore, relevant evidence of Nunn's participation in the conspiracy. See Brief for Appellee at 44.

We agree with the government's characterization of the conversation. Given both the circumstances and substance of the conversation, we think that the jury could have reasonably inferred from Nunn's conversation with Walker that she was threatening him. As a threat made to a potential informant, the conversation was relevant evidence of Nunn's knowledge of and participation in the conspiracy. In United States v. Perkins, 926 F.2d 1271, 1279-80 (1st Cir.1991), the First Circuit considered a similar conversation, in which defendant Perkins told an undercover DEA agent that if he informed "someone would kill [him]." The First Circuit found the conversation admissible simply as relevant evidence. It was "probative of Perkins' involvement in the charged conspiracy, reflecting both his complicity with [the DEA agent] and his consciousness of guilt." Id. at 1280. We also note that, as direct evidence of Nunn's participation in the conspiracy, the conversation is not Rule 404(b) evidence. See United States v. McConnell, 903 F.2d 566, 571 (8th Cir.1990) ("Evidence that is probative of the crime charged and not relevant solely to uncharged crimes is not 'other crimes' evidence." (quoting United States v. Cerone, 830 F.2d 938, 948 (8th Cir.1987), cert. denied, 486 U.S. 1006, 108 S.Ct. 1730, 100 L.Ed.2d 194 (1988))), cert. denied, --- U.S. ----, 111 S.Ct. 1011, 112 L.Ed.2d 1093 (1991). The district court did not abuse its discretion in admitting the conversation.

B. Sufficiency of the Evidence

When reviewing Nunn's sufficiency arguments, we view "the evidence in the light most favorable to the government, giving it the benefit of all reasonable inferences." United States v. Ivey, 915 F.2d 380, 383 (8th Cir.1990). We can reverse only if "a reasonable fact-finder must have entertained a reasonable doubt about the government's proof of one of the offense's essential elements." Id.

Nunn first argues that the evidence of her involvement in the twenty-kilogram transaction proves only her presence at some of the meetings between Chambers and Monte Nunn. The evidence shows that Serena was present three times when Chambers met Monte Nunn prior to the twenty-kilogram sale: first, by chance on the street; again at their fourth meeting on May 16, 1989, at a McDonald's; and at their afternoon meeting on May 17, at which Monte Nunn inspected the cocaine before the sale later that day. See Trial Transcript vol. 2, at 123, 167-68, vol. 3, at 6. Nunn points to the testimony of both Chambers and Loren Duke (Ralph Duke's nephew), however, that she was not involved in their conversations about the twenty-kilogram sale. See id. vol. 3, at 102, vol. 5, at 94-95. Thus, she argues that the evidence proves only her innocent presence in the company of drug-dealers.

To convict Nunn of aiding and abetting the attempt to possess with intent to distribute the twenty kilograms, the government must prove more than her mere association with Chambers and Monte Nunn, or her mere knowledge of their transaction. See United States v. Grey Bear, 828 F.2d 1286, 1292-93 (8th Cir.1987), vacated in part, 836 F.2d 1088 (8th Cir.1987). Rather, the government must prove some "affirmative participation which at least encourages the perpetrator." Ivey, 915 F.2d at 384. We disagree with Nunn that the evidence did not show some affirmative participation on her part.

First, the government contends that Serena Nunn was not merely present at Monte Nunn's meetings with Chambers, but that she...