U.S. v. Sherman

• Decision Date: 15 March 2006
• Docket Number: No. 05-1058.,05-1058.
• Citation: 440 F.3d 982
• Parties: UNITED STATES of America, Appellee, v. Fontaine Demmond SHERMAN, Appellant. United States of America, Appellee, v. Tremayne Scoggins, also known as Scruff, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

440 F.3d 982

UNITED STATES of America, Appellee, v. Fontaine Demmond SHERMAN, Appellant.

United States of America, Appellee, v. Tremayne Scoggins, also known as Scruff, Appellant.

No. 05-1058.

United States Court of Appeals, Eighth Circuit.

Submitted: October 11, 2005.

Filed: March 15, 2006.

COPYRIGHT MATERIAL OMITTED

E. Alvin Schay, argued, Little Rock, AR, for appellant Sherman.

Madison Aydelott, argued, Conway, AR, for appellant Scoggins.

Patrick C. Harris, argued, Asst. U.S. Attorney, Little Rock, AR, for appellee.

Before RILEY, HANSEN, and COLLOTON, Circuit Judges.

COLLOTON, Circuit Judge.

Fontaine Diamond Sherman and Tremayne Scoggins were convicted after a jury trial of conspiring to distribute and possess with intent to distribute more than 5 kilograms of cocaine and more than 50 grams of cocaine base, in violation of 21 U.S.C. §§ 841 and 846. Scoggins was also convicted of using a communication facility to facilitate the commission of a drug offense, in violation of 21 U.S.C. § 843(b). Sherman was sentenced to 240 months' imprisonment, and Scoggins was sentenced to a term of 360 months. After considering their appeals, we affirm the district court's judgment with respect to Sherman. We also affirm Scoggins's conviction, but we vacate his sentence and remand for resentencing in accordance with United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

I.

Scoggins and Sherman were indicted, along with fourteen others, for various offenses arising out of an FBI investigation of drug trafficking activities in central Arkansas from January 1997 through December 2, 2001. According to the government's theory at trial, Scoggins purchased cocaine and cocaine base from suppliers, including Sherman, in Bakersfield, California, and returned to central Arkansas. Scoggins then converted portions of the cocaine into cocaine base and distributed the cocaine powder and cocaine base to his associates, some of whom distributed the drugs.

Eleven of the sixteen defendants pled guilty. A superseding indictment charged Sherman, Scoggins, and Larry Brown (who was eventually acquitted) with conspiring to distribute and possess with intent to distribute more than 5 kilograms of cocaine and more than 50 grams of cocaine base. Scoggins also was charged with three counts of distributing various quantities of cocaine base, and both Scoggins and Sherman were charged with using a communication facility to commit a drug felony. Apparently because of uncertainty in the law after the Supreme Court's decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the indictment also included allegations concerning sentencing issues to be determined under the United States Sentencing Guidelines. Specifically, the indictment charged that Scoggins and Sherman were organizers and leaders of the criminal activity, see USSG § 3B1.1, and that Scoggins possessed a dangerous weapon during the period of the conspiracy, see USSG § 2D1.1(b). The jury returned a guilty verdict against Scoggins and Sherman on the drug conspiracy charge, but was unable to agree unanimously on a drug quantity. It found Scoggins guilty of the communications facility charge. The jury also found that Scoggins was an organizer or leader of a criminal activity that involved five or more participants, and that he possessed a dangerous weapon during the period of the conspiracy. The court sentenced Scoggins to 360 months' imprisonment for the conspiracy and 48 months for the use of a communications facility, to run concurrently. Sherman was sentenced to 240 months' imprisonment.

II.

A.

Scoggins first argues that the district court did not have subject matter jurisdiction to submit the sentencing issues to the jury. The district court plainly had jurisdiction over the criminal case, pursuant to 18 U.S.C. § 3231, which gives the district courts original jurisdiction "of all offenses against the laws of the United States." Whether the court committed a procedural error by submitting certain issues to the jury within the criminal case is a question independent of the court's subject matter jurisdiction over the action.

Scoggins does contend that the submission of the sentencing issues to the jury was an improper trial procedure that violated his rights under the Sixth Amendment. He claims it was error for the court to read to the jury allegations from the indictment that pertained only to sentencing issues, and that the jury instructions on these issues were inadequate. The government asserts that because this case was tried after Blakely, but before the Supreme Court's decision in Booker, the district court acted correctly under the law at the time of the trial.

Although there was ambiguity in the law before Booker was decided, we consider Scoggins's argument in light of law as it has developed by the time of this appeal. United States v. O'Malley, 425 F.3d 492, 495 (8th Cir.2005). It is now clear, under the advisory guidelines scheme announced in Booker, that allegations concerning adjustments under the sentencing guidelines need not be included in an indictment or submitted to a jury. United States v. Haack, 403 F.3d 997, 1003 (8th Cir.2005). Accordingly, we analyze the inclusion of these matters in the indictment as surplusage, United States v. Bates, 77 F.3d 1101, 1105 (8th Cir.1996), and we will find error only if the surplusage is prejudicial and the district court abused its discretion in failing to strike it. United States v. Washington, 992 F.2d 785, 787-788 (8th Cir.1993).

Scoggins argues that submission of evidence to the jury concerning his role in the offense and possession of a dangerous weapon was prejudicial. We disagree, because the disputed evidence would have been admissible as relevant to the charged drug conspiracy, regardless of whether the jury was asked to make specific findings on those sentencing issues. There is a well-known connection between firearms and drug trafficking, and we often have held that evidence of firearms is relevant and admissible in a prosecution of drug trafficking charges. E.g., United States v. Ruiz, 412 F.3d 871, 880-81 (8th Cir.2005); United States v. Barry, 133 F.3d 580, 582 (8th Cir.1998); United States v. Milham, 590 F.2d 717, 721 (8th Cir.1979). Evidence about Scoggins's role in the offense is part and parcel of the proof that he was a member of the conspiracy. Therefore, the jury was entitled to hear this evidence whether or not the sentencing issues were under consideration. We note, moreover, that the jury was asked to consider the sentencing issues only after it determined whether Scoggins was guilty of the charged conspiracy offense, and this sequence makes it unlikely that the district court's highlighting of the sentencing issues caused any prejudice to Scoggins.

Scoggins further contends that the jury instructions improperly allowed the jury to convict him of the charged conspiracy without finding the requisite quantity of drugs. Jury instruction number 9, however, did list quantity as the fourth element of the conspiracy offense, and provided that the jury must find that "the agreement or understanding involved in excess of 5 kilograms of cocaine or more than 50 grams of cocaine base." See 21 U.S.C. § 841(b)(1)(A); United States v. Serrano-Lopez, 366 F.3d 628, 638 (8th Cir. 2004) (explaining that drug quantity is an element of the offense if it "can and does lead to the imposition of a sentence greater than the otherwise applicable statutory maximum."). The jury returned a verdict of guilty on the conspiracy charge, thus indicating that it found unanimously that the offense involved more than 5 kilograms of cocaine or 50 grams of cocaine base. The verdict form then asked the jury, for sentencing purposes, to find whether the quantity of cocaine base was (a) more than 1.5 kilograms, (b) more than 500 grams but less than 1.5 kilograms, (c) more than 150 grams but less than 500 grams, or (d) more than 50 grams but less than 150 grams. The jury answered that it was unable to agree unanimously beyond a reasonable doubt on this question.

That the jury was unable to agree on an answer to the question concerning drug quantity on the verdict form does not undermine the jury's finding of guilt on the charged conspiracy, including the element that the conspiracy involved more than 50 grams of cocaine base or 5 kilograms of cocaine. The inability to choose one of several specific increments of quantity, all of which involved more than 50 grams of cocaine base, does not suggest that the jury was unable to understand its duty to decide whether the conspiracy involved more than 50 grams of cocaine base (or 5 kilograms of cocaine) in order to find Scoggins guilty of the charged offense. There is no reasonable likelihood that the instructions confused the jury, and we therefore reject this challenge to the verdict.

B.

Scoggins next argues that the district court erred by not granting his motions for a mistrial based on allegedly improper comments made by two witnesses. Prior to the testimony of the first, Anthony Flowers, Scoggins moved to prevent Flowers from testifying that Scoggins had shot a man. The district court agreed that the reference would be prejudicial and directed the prosecutor to instruct Flowers not to mention the shooting. Despite this instruction, when asked how he knew that Scoggins carried a gun, Flowers blurted out "he always shot it. He shot a guy in—." (T. Tr. at 344-345). At this point, the prosecutor interrupted Flowers, and the court, after denying a motion for mistrial, gave a cautionary instruction admonishing the jury to disregard the testimony.

Scoggins also moved prior to the testimony of witness Courtney Johnson to exclude prejudicial testimony, and the court admonished Johnson not to mention the word "gang," the names of any specific gangs, or shootings. During his testimony, when asked why he carried a pistol, Johnson stated "[b]...