U.S. v. Poole

• Decision Date: 04 April 1991
• Docket Number: No. 90-3184,90-3184
• Citation: 929 F.2d 1476
• Parties: 32 Fed. R. Evid. Serv. 981 UNITED STATES of America, Plaintiff-Appellee, v. James POOLE, Sr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1476

929 F.2d 1476

32 Fed. R. Evid. Serv. 981

UNITED STATES of America, Plaintiff-Appellee, v. James POOLE, Sr., Defendant-Appellant.

No. 90-3184.

United States Court of Appeals Tenth Circuit.

April 4, 1991.

Robert S. Streepy, Asst. U.S. Atty., Kansas City, Kan. (Lee Thompson, U.S. Atty and Julie A. Robison, Asst. U.S. Atty., with him on the brief), for plaintiff-appellee U.S.

Zygmunt J. Jarczyk, Kansas City, Kan., for defendant-appellant James Poole, Sr.

Before BALDOCK and BRORBY, Circuit Judges, and ANDERSON, ^* District Judge.

ALDON J. ANDERSON, District Judge.

Defendant Poole appeals a jury conviction for possession with intent to distribute approximately 7.8 grams of cocaine base in violation of 21 U.S.C. Sec. 841(a)(1) and unlawful possession of a firearm which had been shipped or transferred in interstate commerce in violation of 18 U.S.C. Sec. 922(g)(1). Poole asserts four grounds of error on appeal. First, Poole challenges the sufficiency of the indictment, claiming that it does not allege the specific elements constituting the violation. Second, Poole argues that the trial court erred by admitting certain testimony of prior crack cocaine sales by Poole under Rule 404(b) Fed.R.Evid. Third, Poole claims that the court erred in giving instruction number three stating that the government need not prove the exact date of the crime as long as it showed that the crime occurred on or about the date charged. Finally, Poole argues that the trial court erred in imposing a sentence based on possession of the entire quantity of drugs seized since the evidence established the presence of multiple parties at the premises.

I.

On January 8, 1990, the Bureau of Alcohol, Tobacco and Firearms ("ATF") served a search warrant at "Lynn's Place," a restaurant operated as a partnership by appellant James Poole, Sr. and codefendant Sylvester Harris. The ATF had been investigating the restaurant for sales of cocaine. ATF undercover agents or confidential informants had purchased crack cocaine from codefendant Harris at the restaurant on January 5, 1990 and twice on January 8th approximately one to two hours prior to serving the search warrant. Poole was not present during any of these pre-buys made by ATF undercover agents or informants. (Tr.Vol. I, pp. 10-12, 40)

When the search warrant was served on January 8, 1990, Poole was sitting at a booth in the front area of the restaurant and was apprehended after he jumped up and started to run. Several other individuals were also present in the restaurant but Harris was absent. (Tr.Vol. I, pp. 12, 14)

After being advised of his rights, Poole was asked if there were any weapons present. He told the agents that there was a carbine in the back room underneath the bar and that they would probably find his fingerprints on the gun because he had handled it. Upon searching the back room of the restaurant, agents found a .30 caliber carbine underneath the bar along with some matching magazines near the gun. (Tr.Vol. I, pp. 14-18)

Poole also told ATF agents that he had quite a lot of fishing gear in the back room and that all of the gear was his. With the assistance of a drug-sniffing dog, the agents found four miniature cellophane bags containing crack cocaine in a minnow pail among some fishing gear in the back room. While searching the kitchen area of the restaurant, agents found a band-aid box containing 20 bags of crack cocaine behind a wall partition. (Tr.Vol. I, pp. 19-21, 24-25)

Agents recovered $2,190 from Poole's pants pocket and the pocket of a jacket claimed by Poole. The agents also recovered $418 from the person of an employee of the restaurant who was found in the kitchen which included $50 identified as "buy money" from the two pre-buys made by the ATF informant on January 8th. The drug dog alerted positive to each stack of money recovered. (Tr.Vol. I, pp. 27-31)

II.

A.

Poole's first claim on appeal is that the indictment is insufficient in that it does not allege the specific elements constituting a violation of 18 U.S.C. Sec. 922(g)(1). An indictment is sufficient "if it contains the elements of the offense charged, putting the defendant on fair notice of the charge against which he must defend, and if it enables a defendant to assert an acquittal or conviction in order to prevent being placed in jeopardy twice for the same offense." United States v. Staggs, 881 F.2d 1527, 1530 (10th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 719, 107 L.Ed.2d 739 (1990) (citing Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974)). Count II of the indictment alleges that the defendant, having been convicted of a felony, "did unlawfully possess a firearm ... which had been shipped or transferred in interstate commerce." ¹ The relevant portion of Sec. 922(g) provides that it shall be unlawful for any person who has been convicted of a felony to "possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." 18 U.S.C. Sec. 922(g) (Supp.1990) (emphasis added).

An indictment is not insufficient merely because it fails to recite the precise language of the statute. The phrase "in or affecting commerce" in Sec. 922(g) was intended by Congress to mean "that the firearm had been at some time, in interstate commerce." Scarborough v. United States, 431 U.S. 563, 575, 97 S.Ct. 1963, 1969, 52 L.Ed.2d 582 (1977); see United States v. Conner, 886 F.2d 984, 985 (8th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1156, 107 L.Ed.2d 1060 (1990). Because the indictment specifically identified the firearm and alleged that it had been shipped or transported in interstate commerce, the indictment was sufficient to place Poole on notice of the charge against him.

Poole also argues that the indictment was insufficient because he could be convicted of two separate crimes under Sec. 922(g)--receiving as well as possessing a firearm shipped or transported in interstate commerce. This claim is without merit. If a subsequent prosecution should occur, Poole could refer to the entire record and not just the indictment to avoid being twice placed in jeopardy for the same offense. See Staggs, 881 F.2d at 1530; United States v. Apodaca, 843 F.2d 421, 430 n. 3 (10th Cir.), cert. denied, 488 U.S. 932, 109 S.Ct. 325, 102 L.Ed.2d 342 (1988). Thus, we conclude that the indictment was sufficient to charge Poole with a violation of Sec. 922(g)(1).

B.

Poole argues that the trial court erred by admitting the testimony of four ATF confidential informants regarding prior cocaine sales by Poole. Poole claims that the testimony should have been excluded because their testimony was uncertain and unclear as to specific times, places and dates. We review the trial court's decision to admit the testimony for an abuse of discretion. United States v. Record, 873 F.2d 1363, 1373 (10th Cir.1989).

The trial court admitted the evidence under Fed.R.Evid. 404(b), which provides:

Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Thus, evidence of prior criminal acts is admissible under Rule 404(b) if it is relevant to something material other than criminal propensity. United States v. Shepherd, 739 F.2d 510, 512 (10th Cir.1984).

At trial, four ATF confidential informants testified that they had either purchased crack cocaine from Poole at the restaurant or observed him participate in the sale of crack cocaine at the restaurant. Oliver Todd testified that he had been in Lynn's Place about 100 times and understood that Poole and codefendant Sylvester Harris ran it as a partnership. Todd testified that he had purchased cocaine at Lynn's Place three or four times, the last purchase having occurred about two weeks before the raid. Todd testified that he did not buy cocaine from Poole at Lynn's Place but had bought cocaine from Poole about a year before at another location. He further testified that he had seen Poole collect money from a person who Todd had seen lay drugs on the bar counter for sale. Todd testified that he knew drugs were sometimes kept in the back part of the restaurant and that Poole kept a gun behind the cash register. (Tr.Vol. I, pp. 62-69)

Charles Johnson testified that he had purchased crack cocaine at Lynn's Place in late 1989 or early 1990 from both Poole and Harris, the last purchase having been about two months before the raid. Johnson testified that he had purchased crack cocaine from both Poole and Harris about 10 to 15 times and that the transactions routinely occurred in the front part of the restaurant by the counter or in the hallway. He testified that Poole would sometimes have the crack cocaine on his person, but at other times, the cocaine was behind the counter or on the person of an employee. He testified that he had seen Poole sell crack cocaine to others approximately 50 times. He stated that Poole was at Lynn's Place frequently but Poole often brought crack cocaine to his workers and left the crack cocaine in their charge. (Tr.Vol. I, pp. 92-102)

Robert Haywood testified that he had been at Lynn's Place three or four times in late 1989 with other people who were purchasing crack cocaine. He had seen these people purchase from both Harris and Poole. Haywood thought that he had seen Poole sell crack cocaine twice. (Tr.Vol. I, pp. 112-116)

Kris Kramer testified that he had purchased crack cocaine at Lynn's Place many times and had purchased directly from Poole at least five times. He testified that these transactions had occurred from approximately the summer of 1989 through one month before the raid. (Tr.Vol. I, pp. 128-130)

After the...