U.S. v. Stuart
| Decision Date | 16 January 1991 |
| Docket Number | Nos. 90-5201M,90-5215MN,s. 90-5201M |
| Citation | 923 F.2d 607 |
| Parties | 32 Fed. R. Evid. Serv. 339 UNITED STATES of America, Appellee, v. Earl Samuel STUART and Jerome Olen Hayden, Appellants. |
| Court | U.S. Court of Appeals — Eighth Circuit |
John P. Sheehy, and Daniel M. Scott, Minneapolis, Minn., for appellants.
James E. Lackner, Minneapolis, Minn., for appellee.
Before ARNOLD and MAGILL, Circuit Judges, and BATTEY, * District Judge.
Appellants Earl Samuel Stuart and Jerome Olen Hayden were convicted by jury trial in the United States District Court for the District of Minnesota. 1 They were tried jointly for the offense of aiding and abetting each other in knowingly and intentionally attempting to possess with the intent to distribute more than 500 grams of cocaine, a Schedule II controlled substance, a violation of 21 U.S.C. Sec. 846 and 21 U.S.C. Sec. 841(b)(1)(B).
Stuart raises the following claims of error on appeal: (1) the evidence produced at trial was insufficient to establish Stuart's intent to distribute the cocaine; (2) the trial court permitted the government to introduce evidence of specific instances of conduct to improperly rehabilitate the credibility of an important prosecution witness; (3) the trial court should have compelled government production of certain materials under Brady and Jencks; (4) the defense was improperly restricted from introducing extrinsic evidence for use in impeaching the government's key witness; and, (5) the trial court erred in denying Stuart a two-point reduction at sentencing for acceptance of responsibility.
Appellant Hayden challenges his conviction on the grounds that (1) the government is guilty of outrageous misconduct in offering to front (advance on credit) co-defendant Stuart money to fund the one kilogram cocaine purchase, and (2) Hayden raises a defense which he characterizes as "sentence entrapment." He argues that he was entrapped into committing a more serious offense than one which he was predisposed to commit.
We affirm both convictions.
Richard Cohen, a resident of Florida, was arrested in 1988 for distribution of one kilogram of cocaine. Cohen was also under investigation by the Minnesota Bureau of Criminal Apprehension (MBCA) concerning three separate shipments of cocaine into Minnesota. He was indicted in the United States District Court for the District of Minnesota on the cocaine charges, and was separately charged by the State of Florida for the one kilogram transaction in that state. He entered a guilty plea under a plea bargain in the Minnesota case. The United States agreed to move for a downward departure in Cohen's offense level at sentencing provided Cohen substantially assisted the MBCA in investigating Minnesota cocaine traffickers. A plea agreement with Florida authorities allowed Cohen to plead guilty in the one kilogram charge as well. He received a nine-month sentence.
Cohen provided assistance in unrelated cases as well as this case. In the course of his cooperation with the government, Cohen identified Stuart as a Minnesota resident who, over a period of several years, had visited Cohen in Florida and purchased multi-kilo quantities of cocaine from Cohen
for distribution in Minnesota. In the two years prior to Cohen's arrest Stuart purchased fourteen kilograms of cocaine from Cohen. Cohen testified that as the business relationship progressed, Cohen fronted cocaine to Stuart with the understanding that Stuart would return to Minnesota to sell the drugs and thus repay Cohen.
The instant case arises out of a transaction initiated by Stuart only seven days before Cohen was to voluntarily surrender to authorities to begin service of his nine-month prison sentence.
On October 5, 1989, Stuart paged Cohen on his electronic pager. Cohen returned the call at a previously designated number and was told by Stuart that he was going to Florida and purchase some cocaine. 2 This initial contact from Stuart was followed by several other phone conversations over the next few days, as well as a personal meeting between Cohen and Stuart at a motel in Miami on or about October 8, 1989.
During this meeting Stuart told Cohen that because he was short of money he was interested in purchasing less than the kilogram of cocaine proposed in their earlier phone conversations. Cohen was aware that he could not interest authorities in the case, and thereby receive a government recommendation for a second reduction in his sentence, if the transaction was for less than a kilogram. Accordingly, Cohen offered to front Stuart sufficient cocaine to allow Stuart to purchase an entire kilogram. Stuart agreed to this arrangement.
Cohen and Stuart were not able to complete the transaction during Stuart's visit to Florida. Cohen suggested that Stuart return to Minnesota and Cohen would arrange to have a "friend" deliver the cocaine to Stuart. Cohen notified MBCA Agent Eugene Leatherman on October 10, 1989, that he had arranged this drug sale in Minnesota. Agent Leatherman encouraged Cohen to proceed with the transaction and to record all further telephone calls between Stuart and Cohen.
A series of five recorded phone calls between Stuart in Minnesota and Cohen in Miami took place. The subject of the calls was to organize the logistics of the delivery. At the conclusion of each phone call Cohen contacted Agent Leatherman and replayed each call. Originally Cohen arranged to fly to Minneapolis to deliver the cocaine to Stuart personally, but Agent Leatherman preferred to act as Cohen's "friend" and make the delivery himself. Ultimately, Cohen and Stuart settled on a plan whereby Stuart, accompanied by his bodyguard, was to drive to Rochester, Minnesota, park his car bearing Florida plates in a pre-arranged parking lot and leave the key in the trunk of the lock. Cohen's "friend" was then to approach the car, open the trunk, retrieve the money Stuart had left in the trunk, and deposit the cocaine. Stuart and Hayden were to watch at a distance.
The transaction was originally to take place in the Country Kitchen parking lot at Rochester. Stuart parked his car there. Due to a delay in Leatherman's arrival, Stuart paged Cohen. When Cohen answered the page, the drop spot was changed to McDonald's parking lot. Stuart and Hayden, who had been watching the car from the Country Kitchen, walked to the car and after Hayden opened and closed the trunk, left the parking lot with Stuart driving, accompanied by Hayden as a passenger. Stuart and Hayden drove a few blocks to the McDonald's parking lot.
Stuart and Hayden were inside the restaurant when Leatherman arrived, located the car, opened the trunk and placed a brown bag inside the trunk. As Leatherman was retrieving the money, Stuart came out of the restaurant, walked past Leatherman, looked at him, and went back inside the restaurant. Stuart got into his
car, drove slowly towards the McDonald's exit and stopped to wait for Hayden. As Hayden was approaching the car, an unmarked police unit pulled in front of Stuart's car, and a uniformed officer stepped out of the car. Stuart shifted into reverse and sped off. A ninety mile-per-hour car chase around Rochester ensued before Stuart was apprehended.
Stuart was suspicious of the dealings with Cohen's "man" and stated, The bodyguard turned out to be Hayden.
Hayden was in McDonald's restaurant with Stuart prior to and at the time of the Leatherman transfer. After the transfer, Hayden left the restaurant and proceeded to meet Stuart as he stopped at the McDonald's exit. The arrival of the unmarked police car and the sudden flight of Stuart left Hayden standing at the scene.
Stuart first claims error in the denial of his motion for a judgment of acquittal on the distribution count on the grounds that the jury's verdict of guilty with respect to Stuart's intent to distribute was based upon insufficient evidence.
When reviewing the sufficiency of the evidence, an appellate court is required to view the evidence in the light most favorable to the government and to accept as established all reasonable inferences to support the conviction. United States v. Meeks, 857 F.2d 1201, 1204 (8th Cir.1988) (quoting United States v. Rich, 518 F.2d 980, 984 (8th Cir.1975)). It is not necessary that the evidence at trial be so overwhelming as to exclude every reasonable hypothesis except guilt; rather, the evidence must merely be sufficient to persuade a jury beyond a reasonable doubt that the defendant has committed the offense alleged. United States v. Marin-Cifuentes, 866 F.2d 988, 992 (8th Cir.1989).
A criminal defendant's intent to distribute a controlled substance may be proven by circumstantial as well as direct evidence. Marin-Cifuentes, 866 F.2d at 992 (citing Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 137, 99 L.Ed. 150 (1954)).
The appellant argues that the evidence of his intent to distribute the cocaine is insufficient because he was not observed selling cocaine, agreeing to sell cocaine, or acting as a courier. It is the rule of this circuit that "neither possession nor an actual sale by a defendant need be proved by the government on a charge of distributing or aiding and abetting the distribution of drugs." Marin-Cifuentes, 866 F.2d at 993; United States v. Nelson, 563 F.2d 928, 931 (8th Cir.1977).
We have reviewed the record and find ample evidence to support the verdict of the jury. Accordingly, we are unable to find that the district court erred in denying Stuart's motion for a judgment of acquittal.
...
To continue reading
Request your trial
-
U.S. v. Saborit
...1407, 1409 (8th Cir.1994); United States v. Armstrong, 16 F.3d 289, 292 (8th Cir.1994); Burks, 934 F.2d at 151; United States v. Stuart, 923 F.2d 607, 611 (8th Cir.1991); United States v. Nabors, 762 F.2d 642, 653 (8th Cir.1985); United States v. Newton, 756 F.2d 53, 54 (8th Cir.1985). The ......
-
U.S. v. Baker, s. 94-30125
...committing a greater offense subject to greater punishment.' " United States v. Staufer, 38 F.3d at 1106 (quoting United States v. Stuart, 923 F.2d 607, 614 (8th Cir.), cert. denied, 499 U.S. 967, 111 S.Ct. 1599, 113 L.Ed.2d 662 Baker does not contend he was subjected to this form of "sente......
-
People v. Claypool, Docket No. 122696. Calendar No. 4.
...is entrapped in committing a greater offense subject to greater punishment.'" Staufer, supra at 1106, citing United States v. Stuart, 923 F.2d 607, 614 (C.A.8, 1991). In Michigan, the concept of sentencing entrapment or escalation was first approved in People v. Shinholster, 196 Mich.App. 5......
-
Com. v. Nelson
...960 F.2d 191, 196 (1st Cir.1992). See also: United States v. Lenfesty, 923 F.2d 1293, 1300 (8th Cir.1991); United States v. Stuart, 923 F.2d 607, 613-614 (8th Cir.1991), cert. denied, 499 U.S. 967, 111 S.Ct. 1599, 113 L.Ed.2d 662 After careful review, we are satisfied that appellant's claim......