U.S. v. Shepard
| Decision Date | 11 September 2006 |
| Docket Number | No. 04-3669.,No. 04-3693.,No. 05-1024.,No. 05-1827.,04-3669.,04-3693.,05-1024.,05-1827. |
| Citation | 462 F.3d 847 |
| Parties | UNITED STATES of America, Appellee, v. Erroll Flynn SHEPARD, Appellant. United States of America, Appellee, v. Tony Skannell, also known as Tomcat, Appellant. United States of America, Appellee, v. Barry Renfold Cooley, Appellant. United States of America, Appellee, v. Roy G. Straughan, also known as George Clark, also known as C-Note (3), also known as C-Nutt (3), Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Michael D. Gooch, argued, Omaha, NE, for appellant Shepard.
Philip G. Wright, argued, Omaha, NE, for appellant Skannel.
William L. Switzer, Jr., Omaha, NE, for appellant.
A. Michael Bianchi, argued, Omaha, NE, for appellant Straughan.
Nancy A. Svoboda, argued, Assistant U.S. Attorney, Omaha, NE (Michael G. Heavican, on the brief), for appellee.
Before LOKEN, Chief Judge, HANSEN and MELLOY, Circuit Judges.
Erroll Flynn Shepherd,1 Tony Skannell, Barry Cooley, Roy Straughan, Vincent Brown, and Oraina Fellows were indicted by a federal grand jury on one count of conspiracy to distribute and possess with intent to distribute 50 grams or more of a mixture or substance containing a detectable amount of cocaine base between November 1, 2000, and November 5, 2001, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1), 846. Brown and Fellows entered into plea agreements with the Government and testified against the appellants, while the other four proceeded to trial. Trial began on May 19, 2004, and a jury returned verdicts of guilty against all four appellants on May 28, 2004. The jury also found that the conspiracy involved 50 grams or more of a mixture or substance containing cocaine base. Cooley was sentenced to life in prison and Shepherd, Straughan, and Skannell were each sentenced to 360 months of imprisonment. All four appeal, raising multiple issues. For the reasons set forth herein, we affirm the conspiracy conviction as to each appellant and the sentences of Straughan and Cooley, but we vacate the sentences of Shepherd and Skannell and remand their cases to the district court for resentencing.
A large number of pretrial motions were filed in this case, many by the appellants, and that, along with the number of defendants involved, caused several delays in setting a trial date. While the indictment was filed on October 24, 2002, the joint trial did not commence until May 19, 2004. Shepherd successfully petitioned to represent himself and proceeded pro se, with standby counsel appointed to assist if requested, while the other three defendants were represented by counsel.
At trial, the Government offered the testimony of five alleged coconspirators to establish the conspiracy, and also presented the testimony of Officer Steve Orsi of the Omaha, Nebraska, Police Department. Because each of the appellants challenges the sufficiency of the evidence as to him, we provide a rather thorough account of the testimony from the trial, which we present "in the light most favorable to the jury verdict, as we are required to do." United States v. Milk, 447 F.3d 593, 596 (8th Cir.2006).
Officer Orsi testified that he had been assigned to the Narcotics Unit for five years and primarily worked long-term investigations, many of which involved conspiracies. He testified about his experience as a narcotics officer investigating long-term drug conspiracies and how he conducted such investigations himself. Over an objection, Officer Orsi testified as to what the average cost in Omaha was to purchase powder cocaine and crack, and what he understood to be "dealer amounts" of narcotics as opposed to drug amounts for individual use. Officer Orsi also testified as to how investigations into drug conspiracies are generally conducted, including how officers work to corroborate the stories of witnesses and coconspirators, why investigators work with individuals charged with drug crimes, and what evidence investigators use in such investigations.
Oraina Fellows, who entered into a plea agreement two days before trial, testified against the appellants. She testified that from September 1999 to October 2001 she lived in an apartment in Omaha, Nebraska. She met Shepherd in 2000 through Anthony Wiley, a man she was dating at the time. Fellows testified that Shepherd and Wiley would cook powder cocaine into crack in her apartment. Shepherd and Fellows later became romantically involved, and in December 2000, Shepherd asked Fellows to rent the apartment across the hall from her place for him. Shepherd arranged to pay the rent and utilities. Fellows stated that between December 2000 and April or May 2001, Shepherd and others would come and go from her apartment and the apartment across the hall, sometimes staying for a couple of weeks at a time.
Soon after she rented the apartment for Shepherd, Fellows stated that Skannell moved into it. She also saw Straughan at the apartment at various times. Fellows testified that she saw all four defendants at the apartment across the hall cooking powder cocaine into crack. Shepherd would give Fellows money to pay bills and buy groceries, and Fellows prepared meals for the people staying in the other apartment. Shepherd also often asked Fellows to obtain the items necessary to cook the powder into crack. She testified that Straughan accompanied her on one trip to obtain such materials, as did Cooley on another trip. Fellows maintained that she did not participate in the cooking process.
Fellows testified that she saw Shepherd with a package of what she believed to be powder cocaine or crack in May 2001, and that she thought he received similar packages several times from April 2001 through the end of that summer. She estimated that during that time she saw Skannell give Shepherd such a package three or four times and Cooley give packages to Shepherd more than twice. Fellows began to see less of Skannell and Cooley in September or October 2001, and Shepherd told her that he had had a falling out with the two men over a cocaine cooking session that had occurred at the apartment without Shepherd's knowledge or participation.
Throughout the spring and summer of 2001, Fellows estimated that she was in the apartment across the hall and saw powder cocaine being cooked into crack more than two times but less than ten. She also testified that during those times all four defendants were present, along with various other people. Fellows also admitted that she herself was using powder and crack cocaine two or three times a day from December 2000 through October 2001, as well as smoking marijuana and drinking alcohol.
Fellows testified that she observed Cooley pass money to Shepherd more than once between December 2000 and September 2001. In that same time period, she saw Skannell give Shepherd money multiple times at the apartment in Omaha and twice in Los Angeles. She did not see Straughan give money to Shepherd, but she did observe Vincent Brown pass money to Shepherd numerous times.
Curtis Holmes testified for the Government. He stated that he was testifying pursuant to a plea agreement and that he believed the terms of his plea agreement required that he cooperate with law enforcement and talk about his involvement with the appellants. Holmes stated he had been sentenced to 292 months of imprisonment, that the judge could still lower his sentence, and that he had two prior federal convictions—a felony crack cocaine conviction and a conviction for being a felon in possession of a firearm.
Holmes testified that he was acquainted with all four defendants. He first met Shepherd in March 2001 when he had some cocaine powder he wanted to cook into crack. Shepherd and Holmes' cousin cooked nine ounces of cocaine powder into 15 or 16 ounces of crack cocaine for Holmes. As payment for the cooking, Holmes gave 3 or 4 ounces of crack to the men. Holmes then saw Shepherd again in May or June 2001 at a hotel in Los Angeles. Shepherd helped Holmes locate a man Holmes was looking for in order to purchase some cocaine. At that time, Shepherd introduced Holmes to Cooley, who then introduced Holmes to Brown.
Soon after the meeting in Los Angeles, Holmes met Shepherd at the apartment in Omaha that Fellows had rented. Holmes testified that it appeared Shepherd was living in the apartment. At this meeting, Holmes paid Shepherd for marijuana that Shepherd had sold him. About two weeks later, Holmes again met Shepherd at the apartment, where he received nine ounces of crack cocaine from Shepherd, packaged in single, plastic-wrapped packages. Holmes testified that Skannell was present in the apartment when he received this crack from Shepherd. Holmes took the crack, broke the packages down into quarter ounces, and sold them around Omaha. Once he sold all the crack, Holmes went back to the apartment and paid Shepherd $2,400.
Approximately two weeks later, Holmes again purchased nine ounces of crack from Shepherd, this time for $5,400, obtaining some of the crack on credit. After the crack was sold, Holmes returned to the apartment and paid Shepherd the amount he still owed. Holmes testified that Shepherd would make trips to Omaha from California and stay a few weeks, then be gone for two or three weeks, and then Shepherd would come back to Omaha, which supported Fellows' similar testimony. He testified he met with Shepherd approximately every two or three weeks at the apartment throughout the summer of 2001.
Holmes obtained crack a third time at the apartment in Omaha, this time from Cooley who had come into town from Los Angeles. Holmes watched Cooley and Brown cook the crack, and Holmes then bought nine ounces for $5,400. Shepherd and Skannell were not present on this occasion. About two weeks later, Holmes went back a...
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