U.S. v. Surratt, 98-1789

• Decision Date: 04 May 1999
• Docket Number: 98-1898,No. 98-1789,98-1789
• Citation: 172 F.3d 559
• Parties: UNITED STATES of America, Appellee, v. Romelle Monte SURRATT, Appellant. United States of America, Appellee, v. Gregory Surratt, Sr., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 559

172 F.3d 559

UNITED STATES of America, Appellee, v. Romelle Monte SURRATT, Appellant.

United States of America, Appellee, v. Gregory Surratt, Sr., Appellant.

No. 98-1789, 98-1898.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 22, 1998.

Decided March 31, 1999.

Rehearing and Rehearing En Banc Denied May 4, 1999.

Steven A. Pihlaja, Minneapolis, MN, argued, for Appellant R. Surratt.

Arthur D. Walsh, Minneapolis, MN, for Appellant G. Surratt.

Carol A. Needles, Asst. U.S. Atty., Minneapolis, MN, argued, for Appellee.

Before McMILLIAN, JOHN R. GIBSON, and HANSEN, Circuit Judges.

HANSEN, Circuit Judge.

A jury convicted Romelle Surratt and his brother Gregory Surratt, Sr., on federal drug trafficking charges. Romelle Surratt was also convicted of being a felon in possession of a firearm. The district court ¹ sentenced Romelle Surratt to 324 months' imprisonment. Gregory Surratt, Sr., received a 121-month sentence. Romelle Surratt and Gregory Surratt, Sr., appeal their convictions and respective sentences. For the reasons stated below, we affirm the district court's judgments in all respects.

I. FACTUAL BACKGROUND

On August 20, 1997, Hennepin County Sheriff's deputies arrested Devon Wright for possession of crack cocaine. Wright agreed to cooperate with the police. Using a secure phone, Wright paged his source. Upon the source's return phone call, Wright placed an order for two ounces of crack cocaine, and officers set up surveillance in the area where the delivery was to occur. The officers were told to expect a black male with the initials R.M. driving either a motor home or an older gray or silver Chevrolet Suburban bearing a particular license plate number.

Shortly thereafter the officers spotted a Suburban matching the description. The vehicle contained three persons: a driver, a front-seat passenger, and a rear-seat passenger. The Suburban stopped in front of Wright's apartment building. Sergeant Folkens, driving a marked Minneapolis Police Department patrol car, drove up behind the Suburban and activated the patrol car's lights. The Suburban then drove away in an apparent attempt to evade the police. Thereafter, Sergeant Folkens pursued the vehicle until it stopped after a minor collision with an unmarked police vehicle approaching from the opposite direction. The driver of the Suburban was later identified as Romelle Surratt. His brother, Gregory Surratt, Sr., occupied the front passenger seat, while Gregory's son, Gregory, Jr., rode in the back seat.

Detectives Zimmer and Moe testified that as the Suburban was coming to a stop, they observed the passenger later identified as Gregory Surratt, Sr., extend his arm out of the window and toss a white bag or object towards the sidewalk. ² Detective Zimmer was riding in the front seat of Sergeant Folkens' patrol car. He testified that the Suburban's rear tailgate window was down and he could easily view its occupants. According to Detective Zimmer's testimony, he observed Gregory Surratt, Sr., holding a plastic bag containing a white substance he recognized as being crack cocaine. Detective Zimmer further testified that he saw Gregory Surratt, Sr., toss the bag onto the adjacent sidewalk.

Detective Moe was traveling in a vehicle approaching the Suburban head-on. Detective Moe testified that he saw Gregory Surratt, Sr., extend his arm out of the window, and that he saw a white object hanging from Surratt, Sr.'s, hand. According to Detective Moe, as the Suburban was stopping, Surratt, Sr., tossed the white object towards the sidewalk. Detective Moe retrieved the white object from the sidewalk; it was a plastic bag containing two ounces of crack cocaine.

Officers then searched the Suburban and its occupants. The officers found a pager inside the Suburban. A download of the pager's memory revealed that it contained the phone number for the secure phone Devon White had used to place the drug order. While searching Romelle Surratt, the officers found, inter alia, approximately $600, mostly in small denominations, and a receipt for rent paid for a Minneapolis apartment located at 2633 Pleasant Avenue South. Gregory Surratt, Sr., likewise possessed approximately $600, primarily in small denominations. The officers did not discover any remarkable items in their search of Gregory Surratt, Jr.

Later that same day, August 20, 1997, officers obtained and executed a warrant to search Romelle Surratt's apartment and motor home. The search of the apartment uncovered a large amount of drugs, money, drug paraphernalia, and a weapon. Officers found a .38 caliber handgun inside a hall closet, concealed in a car battery having a false lid. They also found fourteen bags of crack cocaine (weighing approximately 748 grams) and 608 grams of marijuana in the hall closet. A safe in the bedroom contained about $2,000 in cash and two digital gram scales. A pair of women's shoes found in the living room contained $4,000 in cash. Notebooks that expert testimony later identified as relating to cocaine trafficking were also seized.

A search of the bedroom and bedroom closet uncovered miscellaneous items linking Romelle Surratt to the apartment. Officers found documents, receipts, photographs, and identification cards bearing Romelle Surratt's likeness and name. The identification cards were found in a man's leather coat that also contained a bag of 13.1 grams of crack cocaine. In the motor home, officers found plastic baggies of the type commonly used to package drugs.

A fourteen-year-old female named Lashawnda Manson was in the apartment at the time the officers executed the search warrant. Over the course of the investigation and trial, Ms. Manson provided various accounts regarding the contraband found in the apartment. At trial, for example, Ms. Manson testified that the drugs found in the closet belonged to her former boyfriend, not one of the defendants. Ms. Manson claimed that she hid the drugs after learning that the police had arrested the three Surratts. She admitted, however, that at the time of the search she told the officers that she did not know who owned the drugs or weapon, and that she had also told the police a different story shortly before the trial.

The grand jury issued a superseding indictment on November 19, 1997. Counts I and II concerned the drugs associated with the stop of the Suburban. Count I charged Romelle Surratt, Gregory Surratt, Sr., and Gregory Surratt, Jr., with conspiring to distribute, and possessing with the intent to distribute, over 50 grams of a mixture of substance containing crack cocaine, in violation of 21 U.S.C. § 846. Count II charged the three men with aiding and abetting each other in possessing with the intent to distribute approximately 52 grams of a mixture of substance containing crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). Counts III and IV concerned the contraband discovered during the search of Romelle Surratt's apartment. Count III charged Romelle Surratt with possessing with intent to distribute approximately 365 grams of a mixture of substance containing crack, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). Count IV charged him with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g).

Each defendant pleaded not guilty, and a single jury heard all three cases. The jury found Romelle Surratt guilty on all four counts, and found Gregory Surratt, Sr., guilty on Counts I and II. Gregory Surratt, Jr., was acquitted. The district court sentenced Romelle Surratt to 324 months of imprisonment, and Gregory Surratt, Sr., received a 121-month sentence.

II. ROMELLE M. SURRATT

A. Sufficiency of the Evidence

Romelle Surratt argues that the government failed to present sufficient evidence to support the jury's verdict with respect to Counts III and IV of the superseding indictment. Counts III and IV relate to the drugs and weapon found during the search of Romelle Surratt's apartment. In Count III, the government charged Romelle Surratt with possession with the intent to distribute 365 grams of crack cocaine; Count IV charged Romelle Surratt with being a convicted felon in possession of a firearm. " 'In reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the government, resolving evidentiary conflicts in favor of the government, and accepting all reasonable inferences drawn from the evidence that support the jury's verdict.' " United States v. Smith, 91 F.3d 1199, 1200 (8th Cir.1996) (quoting United States v. White, 81 F.3d 80, 82 (8th Cir.1996)). "We will uphold the jury verdict if a reasonable minded jury could have found the defendant guilty beyond a reasonable doubt." Id. This standard of review is very strict; we will not lightly overturn the jury's verdict. United States v. Perkins, 94 F.3d 429, 436 (8th Cir.1996), cert. denied, 519 U.S. 1136, 117 S.Ct. 1004, 136 L.Ed.2d 882 (1997).

Romelle argues that although the government presented "ample evidence of the presence of the contraband, there was a complete absence of any evidence that it was [Romelle Surratt] who possessed either the firearm or the drugs." (Romelle Surratt's Br. at 9.) We reject this argument. It is well established that the government need not prove actual possession, constructive possession is sufficient. See, e.g., United States v. McCracken, 110 F.3d 535, 541 (8th Cir.1997) ("Proof of constructive possession is sufficient to satisfy the element of knowing possession."); United States v. Wesley, 990 F.2d 360, 364 (8th Cir.1993) ("This court has held that possession may be actual or constructive."). "Constructive possession of [contraband] is established if a person has 'ownership, dominion or control over the contraband itself, or dominion over the premises in which the contraband is concealed.' " McCracken, 110 F.3d at 541 (quoting United States v. Ojeda, 23 F.3d 1473, 1475 (8th Cir.1994)).

The government's evidence in ...