U.S. v. Swinney

• Decision Date: 30 July 1992
• Docket Number: 91-1502,91-2486,Nos. 91-1294,91-2135,91-2931 and 91-3151,s. 91-1294
• Parties: UNITED STATES of America, Appellee, v. Levi SWINNEY, Appellant. UNITED STATES of America, Appellee, v. Freddie BLACKSHIRE, Appellant. UNITED STATES of America, Appellee, v. Donzell MAYFIELD, Appellant. UNITED STATES of America, Appellee, v. James Harvey BRADLEY, also known as Junior Bradley, Appellant. UNITED STATES of America, Appellee, v. Terence SWINNEY, Appellant. UNITED STATES of America, Appellee, v. James A. WILLIS, also known as Jimmy Willis, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 494

970 F.2d 494

UNITED STATES of America, Appellee, v. Levi SWINNEY, Appellant.

UNITED STATES of America, Appellee, v. Freddie BLACKSHIRE, Appellant.

UNITED STATES of America, Appellee, v. Donzell MAYFIELD, Appellant.

UNITED STATES of America, Appellee, v. James Harvey BRADLEY, also known as Junior Bradley, Appellant.

UNITED STATES of America, Appellee, v. Terence SWINNEY, Appellant.

UNITED STATES of America, Appellee, v. James A. WILLIS, also known as Jimmy Willis, Appellant.

Nos. 91-1294, 91-1502, 91-2135, 91-2486, 91-2931 and 91-3151.

United States Court of Appeals,

Eighth Circuit.

Submitted April 13, 1992.

Decided July 30, 1992.

Rehearing Denied in Nos. 91-1502,

91-2486, 91-2931 and 91-3151

Oct. 1, 1992.

Gary M. Cupples, Kansas City, Mo., argued, for Levi Swinney.

David S. Rauzi, Kansas City, Mo., argued, for Fred Blackshire.

Truman K. Eldridge, Jr., Kansas City, Mo., for Donzell Mayfield.

Kevin E. Regan, Kansas City, Mo., for James Bradley, Jr.

Julie Faye Keith, Kansas City, Mo., argued (Ward K. Brown, on the brief), for Terence Swinney.

Patrick J. Stueve, Kansas City, Mo., argued (Charles E. Atwell, on the brief), for James Willis.

Mark Andrew Miller, Asst. U.S. Atty., Kansas City, Mo., argued (David Detar Newbert, on the brief), for U.S.

Before FAGG, Circuit Judge, HENLEY, Senior Circuit Judge, and WOLLMAN, Circuit Judge.

FAGG, Circuit Judge.

In two separate trials, Levi Swinney, Freddie Blackshire, Donzell Mayfield, James Harvey Bradley, Terence Swinney, and James A. Willis (collectively the defendants) were convicted of various drug-related crimes arising out of a large cocaine distribution conspiracy. The defendants appeal their convictions and sentences. We affirm.

The four defendants convicted at the first trial, Levi Swinney, Terence Swinney, Blackshire, and Mayfield, contend they are entitled to a new trial because the Government, in violation of Batson v. Kentucky, 476 U.S. 79, 96-98, 106 S.Ct. 1712, 1723-24, 90 L.Ed.2d 69 (1986), used two peremptory challenges to remove black jurors based on their race. One of the jurors the Government struck from the jury had stated during voir dire that he might lose the opportunity for a job promotion if he was required to sit on jury duty. The Government explained that it believed this juror was "a loose cannon" that might hold a grudge against the Government. The Government struck the second black juror because he wore dark sunglasses and "a big gold watch" into the courtroom, and the prosecuting attorney was unable to establish eye contact with him. Based on these observations, the Government explained that it believed the juror might not respect the judicial system or the Government's case. Although the district court expressed some skepticism about the Government's logic in striking the second juror, the court found the Government's challenges were properly based on race-neutral reasons.

Whether the Government exercised its peremptory challenges in a race-neutral manner is a question of fact subject to the clearly erroneous standard of review. Jones v. Jones, 938 F.2d 838, 841 (8th Cir.1991). As is often the case, the Government exercised its peremptory challenges using intuitive guesses about the jurors' attitudes toward the Government and the subject matter of the case, relying on the jurors' statements during voir dire, their general demeanor, and personal traits like style of dress. The district court was in a unique position to judge the Government's peremptory challenges in light of the voir dire, and the district court's observations in this regard are particularly crucial. United States v. Sherrills, 929 F.2d 393, 395 (8th Cir.1991). In this case, the district court characterized the Government's reason for striking the second juror as "a rather wild guess." Nevertheless, the court accepted the Government's explanation, noting the juror's dress and behavior "might tend to show some possible tolerance for drug use." The district court expressly found the Government exercised its peremptory challenges on a race-neutral basis and denied the defendants' motion for a mistrial. Having reviewed the record, we are not left with the definite and firm conviction that the district court's finding is mistaken. See Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). We thus reject the defendants' contention that the Government violated Batson and deprived them of an impartial jury.

The two defendants convicted in the second trial, Bradley and Willis, contend their convictions on count fifteen, possession with intent to distribute cocaine, must be reversed because venue in the Western District of Missouri was improper for this count. We review the evidence in the light most favorable to the Government to determine whether the Government established venue by a preponderance of the evidence. United States v. Delgado, 914 F.2d 1062, 1064 (8th Cir.1990). Viewed in this light, we conclude the evidence supports venue over count fifteen in the Western District of Missouri.

Bradley and Willis contend venue was not proper because the evidence does not show they possessed the cocaine in the Western District of Missouri or intended to distribute it there. We disagree. "Proper venue lies in the district where the ... offense was committed. Fed.R.Crim.P. 18. If the offense was begun in one district and completed in another, or committed in multiple districts, the government may try the case in any district where the offense was 'begun, continued, or completed.' " United States v. Kiser, 948 F.2d 418, 425 (8th Cir.1991) (quoting 18 U.S.C. § 3237 (1988)), cert. denied, --- U.S. ----, 112 S.Ct. 1666, 118 L.Ed.2d 387 (1992). Possession with intent to distribute a controlled substance is a continuing crime. Id. Thus, Bradley and Willis could properly be tried in any district where they had possession of the cocaine, whether they intended to distribute the cocaine in that district or someplace else.

In this case, we conclude Bradley possessed the cocaine in the Western District of Missouri. Possession of a controlled substance can be either actual or constructive. Id.; United States v. Nunn, 940 F.2d 1128, 1132-33 (8th Cir.1991). We have defined constructive possession as knowledge of presence plus control. E.g., Nunn, 940 F.2d at 1132-33. " '[T]he essence of constructive possession is not direct, physical control, but the ability to reduce an object to actual possession.... It is enough if one person is sufficiently associated with another having physical possession that he is able to produce a controlled substance for a customer.' " Id. at 1133 (quoting United States v. Holm, 836 F.2d 1119, 1123 (8th Cir.1988) (citations omitted)). Bradley and Willis worked in concert to purchase the cocaine. After arranging the purchase, Bradley and Willis each contributed to the purchase price. Willis then travelled to Los Angeles, where he paid for and took possession of the cocaine. Although Bradley stayed in Kansas City, Missouri, he had a vested interest in the successful completion of the cocaine purchase, and he stayed in contact with Willis and another coconspirator who was helping with the purchase. Bradley was told when the cocaine purchase was completed and that the quality of the cocaine was good. Given these circumstances, Bradley had constructive possession of the cocaine in Kansas City, Missouri, once his partner in the crime, Willis, had actual possession of the cocaine in Los Angeles.

Based on his constructive possession of the cocaine in Kansas City, Missouri, Bradley was properly subject to venue in the Western District of Missouri. Venue was also proper over Willis. "One who has never been physically present in a district may nonetheless be prosecuted there for possession if he aids and abets [another] who has either actually or constructively possessed a controlled substance in the jurisdiction." United States v. Medina-Ramos, 834 F.2d 874, 877-78 (10th Cir.1987); see also Delgado, 914 F.2d at 1065-66 (constructive possession by one aider and abetter in district where charge is filed provides basis for venue over second aider and abetter). Because Willis aided and abetted Bradley in the purchase of a controlled substance, cocaine, he may properly be tried in the Western District of Missouri, where Bradley had constructive possession of the cocaine.

Willis contends the district court committed error in refusing to allow him to represent himself pro se with the assistance of standby counsel. The record does not support Willis's contention. Defendants in criminal trials have a constitutional right to waive the assistance of counsel and conduct their own defense. Faretta v. California, 422 U.S. 806, 821, 95 S.Ct. 2525, 2534, 45 L.Ed.2d 562 (1975). A court, however, may appoint standby counsel to assist a defendant who chooses to proceed pro se. McKaskle v. Wiggins, 465 U.S. 168, 184, 104 S.Ct. 944, 954, 79 L.Ed.2d 122 (1984). The defendant remains free, of course, to elevate standby counsel to a lead counsel role, thereby waiving the defendant's Faretta rights. Id. at 182, 104 S.Ct. at 953. "Once a pro se defendant invites or agrees to any substantial participation by [standby] counsel, subsequent appearances by counsel must be presumed to be with the defendant's acquiescence, at least until the defendant expressly and unambiguously ... request[s] that standby counsel be silenced." Id. at 183, 104 S.Ct. at 953. The defendant, however, does not have a constitutional right to hybrid representation. Id.; Cross v. United States, 893 F.2d 1287, 1291-92 (11th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 138, 112 L.Ed.2d 105 (1990). That is, the defendant cannot demand the right to act as co-counsel. Cross, 893 F.2d at 1292. Thus, the district court may properly require the defendant to choose either to proceed pro se, with or without the help of standby counsel, or to utilize the full assistance of counsel...