U.S. v. Payton
| Decision Date | 16 May 2011 |
| Docket Number | No. 09–3288.,09–3288. |
| Citation | 636 F.3d 1027 |
| Parties | UNITED STATES of America, Appellee,v.David A. PAYTON, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
OPINION TEXT STARTS HERE
Anne M. Laverty, Cedar Rapids, IA, for appellant.Clifford R. Cronk, AUSA, Davenport, IA, for appellee.Before BYE, BEAM, and SMITH, Circuit Judges.SMITH, Circuit Judge.
David A. Payton appeals his convictions and sentences for conspiracy to manufacture, distribute, and possess with intent to distribute five grams or more of crack cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B) (“Count 1”); opening and maintaining a crack house, in violation of 21 U.S.C. § 856(a)(1) (“Count 5”); and distribution of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 18 U.S.C. § 2 (“Count 6”). Payton asserts that (1) the district court 1 erred in denying his motion to sever the case for trial; (2) the district court erred in denying his Batson 2 challenge; (3) he is entitled to a new trial because the government withheld exculpatory evidence; (4) the district court abused its discretion in denying his requested jury instructions; (5) insufficient evidence exists to support his convictions; (6) the district court erred in determining the drug quantity attributable to him; (7) the district court erred in applying an aggravating role enhancement; and (8) the district court abused its discretion in denying a sentencing variance based upon the disparity in the Guidelines between powder cocaine and crack cocaine. We affirm.
David A. Payton, along with Sidney Glennard Hines, Durrell Ryan Parks, and William Carl Morgan, was charged in a multi-count indictment with conspiracy to manufacture, distribute, and possess with intent to distribute crack cocaine, opening and maintaining a crack house, and distribution of crack cocaine (Counts 1, 5, and 6). Prior to trial, the government filed an information and notice of prior conviction, informing Payton that he was subject to a sentencing enhancement for a prior felony drug conviction. Also prior to trial, Morgan and Parks entered guilty pleas pursuant to plea agreements and agreed to cooperate against Payton and Hines at trial.
Payton and Hines were tried jointly. The government produced the following evidence to support the charges at trial. On January 30, 2008, the Iowa City Police Department's “Street Crimes Unit” began focusing on Hines in a drug investigation. The police had purchased drugs, which led them to the apartment of Michelle Nichols in Coralville, Iowa. That evening, the police conducted a search of Nichols's apartment and found crack cocaine, money, and other indicia of drug dealing. During the search, Hines arrived at the apartment and was searched. Hines possessed a small amount of crack cocaine, a digital scale, a cell phone, and $1,190, including $200 of the “buy” money from a transaction conducted earlier in the evening. Hines had been selling crack cocaine in Iowa City, Iowa, and had delivered crack cocaine to Nichols earlier that evening.
Hines also distributed crack cocaine in Davenport, Iowa, to Willie Hester, Morgan, Parks, Charlena Castle, and others. Hines was a supplier to Hester, a crack dealer. On April 3, 2008, Davenport police raided Hester's residence, recovering approximately six grams—15 individually wrapped “rocks”—of crack cocaine, packaging material, and $563.
On August 30, 2008, the Davenport police raided Hester's new residence, where Hester and Castle were present. Officers discovered 44 individually wrapped rocks of crack cocaine, Hester's cell phone, and $676. While officers were still at Hester's residence, Hester, directed by police, called Hines and said, “I have your money—I sold out.” Hester then received two phone calls from Hines, who advised Hester that he was on his way to Hester's residence. After the second call, Hines approached on foot and was intercepted by the police. Hines possessed a cell phone with the same telephone number that Hester had just called. Hester was arrested and jailed, but Hines was arrested and released.
Castle introduced Hester to Hines in 2007. Castle knew that Hines was a crack dealer, and she thought that Hester could obtain better prices from Hines for crack cocaine. Castle had observed Hines with ounce quantities of crack cocaine. Hester estimated that Hines had supplied him with 50 to 100 rocks of crack cocaine on approximately 25 to 30 separate occasions. Hester met Payton when Hines brought Payton with him to Hester's home.
Payton distributed crack cocaine to Rhonda Cowan, Parks, Castle, Leslie Lueders, and others. Between August 2008 and December 18, 2008, Hines and Payton sold crack cocaine together. Payton provided a cell phone to Hines, which Hines then used to conduct his drug business. Payton also received Supplemental Security Income (SSI) and spent all of his $650 SSI checks on crack cocaine.
In October 2008, Payton used Michael Bowes's apartment to distribute crack cocaine. The police received complaints about drug dealing from Bowes's apartment. On October 19, 2008, Davenport police asked Lueders to go to Bowes's apartment with a $50 bill to see if she could purchase crack cocaine. Lueders met Payton at the apartment and paid him $50 for crack cocaine. During the transaction, Payton revealed a “wad of dope,” placing it on the table for Lueders to choose. When Lueders picked up a rock, Bowes took a small piece of it for himself. Lueders left the apartment and gave the police a description of Payton.
After the sale, the police apprehended Payton outside of the apartment building. He possessed the $50 bill that Lueders had given him and a cell phone. A records check of the cell phone revealed numerous calls between Payton's cell phone and the phone that Hines used, including calls that evening.
In October or November 2008, Payton and Hines began using Parks's apartment to distribute crack cocaine. On December 18, 2008, Morgan, while working under the direction of Davenport Detective Gilbert Proehl, arranged to purchase $300 worth of crack cocaine from Hines. Prior to the purchase, the police equipped Morgan with an audio and video recording device and gave him $300 in prerecorded funds to use for the purchase. Then, Morgan placed recorded calls to Hines, and Hines advised Morgan to meet him at Parks's apartment. Payton met Morgan at the door of the apartment building and followed him up the stairs to Parks's apartment. A short time later, Morgan met Detective Proehl and gave him 20 individually wrapped rocks of crack cocaine.
The police obtained a search warrant for Parks's apartment and executed the search that evening. After forcefully entering the apartment, the police discovered Hines in the bathroom attempting to flush evidence down the toilet. The police found $300 from the earlier drug transaction on Hines after his arrest. In the toilet, officers discovered six individually wrapped rocks of crack cocaine, a broken cell phone, two rocks of crack cocaine inside the vacuum tube of the toilet, and a $10 bill in the sewage line directly under the toilet. The police found another rock of crack cocaine on the floor of the apartment, along with items used to cut and package crack cocaine. On the ground outside the window of the apartment, officers discovered packaging material, latex gloves, and baggie remnants.
At trial, Hines testified that he is a crack user, not a crack dealer, and that he works for a construction company from time to time. He admitted to meeting Payton in September 2008. He also admitted that on December 18, 2008, he used Payton's cell phone to contact Morgan.
Payton also testified, admitting that he had been a crack user for 14 years, had a very bad crack habit from 2007 to 2008, and had smoked crack “all day, everyday.” According to Payton, he was recently diagnosed as schizophrenic and began receiving SSI as a result. He received $650 each month in SSI checks, and he used all of the money to buy crack cocaine. He stated that he usually purchased crack cocaine in $50 amounts but sometimes in $20 amounts. Payton said that he shared the crack cocaine with others on many occasions. Payton testified that he traded his property for crack cocaine and sold cell phones for crack cocaine, one time receiving two $20 rocks for a phone. Payton acknowledged that a $20 rock is .2 grams of crack cocaine and that a $50 rock is a half of a gram of crack cocaine.
Payton admitted to using crack cocaine with Cowan, Parks, Bowes, and Rocky Wales. According to Payton, on October 18, 2008, Bowes and Payton reached an agreement that Payton would buy $50 worth of crack cocaine for them to share. He also testified that he went to Parks's apartment on numerous occasions to get crack cocaine and that he knew a lot of people came to Parks's apartment to get “high.” He said that Parks would “run” for the drugs. To explain how Hines's phone number appeared on his cell phone in August and September 2008, Payton stated that he let people use his cell phone to order crack cocaine. Payton denied knowing Hester and Castle.
As to the December 18, 2008 raid at Parks's apartment, Payton claimed that he was in the apartment building to smoke crack cocaine and not as part of any arrangement with Hines or Parks. He admitted that he saw Morgan come into the building and that he followed Morgan to Parks's apartment. Payton maintained that he did not see Hines in the apartment for a while; he said that he only saw Parks with crack cocaine. According to Payton, after Morgan left, Payton saw Hines come out of the kitchen. Payton stated that Hines never went into the bathroom that evening.
After a seven-day trial, the jury found Payton guilty on all counts.
On appeal, Payton argues that (1) the district court erred in denying his motion to sever the case for trial; (2) the district court...
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