U.S. v. Perkins, 95-3880

• Decision Date: 02 October 1996
• Docket Number: No. 95-3880,95-3880
• Citation: 94 F.3d 429
• Parties: 45 Fed. R. Evid. Serv. 477 UNITED STATES of America, Plaintiff-Appellee, v. Martin PERKINS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 429

94 F.3d 429

45 Fed. R. Evid. Serv. 477

UNITED STATES of America, Plaintiff-Appellee, v. Martin PERKINS, Defendant-Appellant.

No. 95-3880.

United States Court of Appeals Eighth Circuit.

Submitted March 12, 1996.

Decided Aug. 23, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied Oct. 2, 1996.

Alfredo Parrish, Des Moines, IA, argued, for appellant.

Richard Lee Richards, Asst. U.S. Atty., Des Moines, IA, argued, for appellee.

Before McMILLIAN, BEAM, and HANSEN, Circuit Judges.

HANSEN, Circuit Judge.

Martin Perkins was charged by grand jury indictment with one count of possession of cocaine base with intent to distribute in violation of 21 U.S.C. § 841(a)(1), and using and carrying a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c). His first trial ended in a hung jury. At his second trial, the jury found him guilty of the possession with intent to distribute charge but could not reach a verdict on the firearms charge. The district court ¹ sentenced Perkins to 135 months' confinement on the drug conviction, and the government elected to dismiss the firearms charge with prejudice. Perkins appeals both his conviction and sentence. We affirm.

I.

When viewed in the light most favorable to the verdict, the evidence at trial established that on the evening of December 4, 1994, a woman who identified herself as Keisha Bateman telephoned the Burlington, Iowa, police department to report that she was involved in a domestic dispute with the defendant at his apartment and that he had pointed a gun at her and assaulted her. She also told the police that the defendant was cutting up a quantity of crack cocaine and that he had a large stack of cash beside him as he did so.

Later that evening, police officers obtained and executed a state court search warrant for Perkins' apartment. Officers observed Perkins entering the living room from the bedroom. There were no other persons in the apartment, Perkins told the officers he was the only person living there, and there was but a single bed. Perkins was arrested on an outstanding Illinois warrant. A pager device, which Perkins said he wore because his sick grandmother often paged him, was taken from his person when it beeped. Stored in its memory and displayed on its readout were several telephone numbers, one of which was followed by the numbers 911. Testimony indicated those three numbers were a code used by crack addicts to indicate to a supplier that the addict needed drugs as soon as possible. In the bedroom, officers seized $5,723 in cash found in two socks in a footlocker; several pieces of crack individually wrapped in torn off corners of plastic sandwich bags, which were found in two sandwich bags within a plastic shopping bag located between the footlocker and the wall; and two razor blades in the pocket of a pair of pants. Officers found several plastic bags with the corners cut out in the kitchen and a razor blade with crack residue in the kitchen garbage. Also seized were various bills and letters addressed to the residence in the names of Martin Perkins, Clint Coleman, and Edward Perkins. A leather wallet with two photo identification cards of the defendant (one of them a Michigan driver's license) was found in the same footlocker in the bedroom which held the cash, and a fully loaded Colt Delta Elite 10 mm pistol was found in a shoe in the closet of the bedroom. A quantity of ammunition for the weapon was also located and seized. While the search was being conducted, two men, one who identified himself as Edward Perkins and who said he lived there, and the other who would not identify himself, came to the door and wanted to enter. Entry was denied.

Keisha Bateman turned out to be Kela Cooper who had used a false name when making the call to the police department. She testified about the events which preceded her telephone call to the police including her observations of the defendant cutting up crack cocaine in his living room with a substantial amount of cash at hand.

II.

Perkins appeals his conviction, contending that there is insufficient evidence to support the jury's verdict, that the government knowingly presented perjured testimony, that the district court erred in admitting evidence of his prior conviction for possession of crack cocaine, and that he received ineffective assistance of counsel at trial in violation of his Sixth Amendment right. He appeals his sentence, challenging the enhanced statutory penalties for crack cocaine and the district court's determination of the quantity of drugs for which he should be held accountable.

A.

The defendant's claim that the government knowingly presented false testimony at the defendant's second trial, if true, would violate the Due Process Clause. United States v. Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375, 3381-82, 87 L.Ed.2d 481 (1985); Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959); United States v. Martin, 59 F.3d 767, 770-71 (8th Cir.1995).

The allegedly false testimony in this case involves the location where the defendant's Michigan driver's license was found during the search. At the defendant's first trial, Deputy Sheriff Salsberry identified a photograph as being taken during the search and as depicting a pair of white jeans with two razor blades and a photo ID laying on top of them. He testified that the razor blades and the ID had been found in the pockets of the jeans and placed on top of the jeans for photographing, that the ID was not the Michigan driver's license found in the wallet in the footlocker, and that neither the jeans nor the ID depicted in the photo had been seized. From his testimony, a fact finder could have concluded that three IDs of the defendant were found during the search, two (including the Michigan driver's license) in the wallet in the footlocker and one in the pocket of the jeans, but only the two in the wallet were seized. Defense counsel, working from an enlargement of the same photograph, clearly demonstrated in the cross-examination of the deputy that the photo ID depicted in the photograph on top of the jeans was in fact the same Michigan driver's license that the deputy's testimony indicated had been found in the defendant's wallet in the footlocker. The prosecutor so stipulated. The jury was unable to reach a verdict on the drug count.

At the second trial, Deputy Salsberry testified that from his recollection alone, he was unable to recall what type of ID he had found in the jeans but he was sure that it was not seized. He further testified that he "now knows" that the ID in the photograph is in fact the Michigan driver's license he found in the defendant's wallet and that he does not know how it came to be photographed with the jeans. The photograph was admitted with a stipulation by the parties that "[t]he government agrees that the pants were not in the position originally located. The government further agrees that the Michigan driver's license photographed with the pants was not found in those pants. It was originally found in the wallet." (Tr. of second trial at 72.)

All of this conflicting evidence and the inferences to be drawn from it, was put before the second jury, and nothing was withheld from it concerning the Michigan driver's license. The same conflicting and impeaching evidence was before the jury as it determined the credibility of Deputy Salsberry and the weight to give to his other testimony. The second jury convicted the defendant on the drug charge.

To prove prosecutorial use of false testimony that violates due process, Perkins must show: (1) use of perjured testimony (2) that the prosecution knew or should have known was perjured, and (3) "a 'reasonable likelihood' that the perjured testimony could have affected the jury's judgment." Martin, 59 F.3d at 770 (quoting United States v Nelson, 970 F.2d 439, 443 (8th Cir.), cert. denied, 506 U.S. 903, 113 S.Ct. 293, 121 L.Ed.2d 217 (1992)). Our review of the facts convinces us that there was no attempt by the government to mislead the second jury through the use of false or perjured testimony. The government held nothing back and laid all of the evidence about the Michigan driver's license before the second jury, including Deputy Salsberry's prior conflicting testimony. The officer's testimony at both trials was that the Michigan driver's license was found in the wallet in the footlocker and that a third ID was found in the pants but not seized. It is his testimony at the first trial that the ID in the photograph was the one taken from the pants and that it was not the Michigan driver's license found in the footlocker which was directly impeached and disproved by the enlarged photograph. The government candidly informed the second jury that the Michigan license shown in the photograph was not found in the pants. The government did not advance at the second trial the impeached testimony given by the officer at the first trial that the ID card in the photograph was not the Michigan ID. Moreover, the officer's testimony at the second trial about the Michigan driver's license was consistent with the officer's contemporaneous written report and the search warrant inventory. While the officer's impeached first trial testimony would also tend to impeach his other testimony that the Michigan driver's license was initially found in the footlocker, we are unable to say on this record that his testimony at both trials about finding the Michigan ID in the wallet in the footlocker was in fact perjured, and that the government knew or should have known it. Indeed, at the second trial the stipulation between the parties included the sentence: "It was originally found in the wallet." No objection was made to that part of the stipulation by the defendant, and the stipulation was specifically agreed to in front of the jury.

The jury was fully informed about the discrepancies, contradictions, and...