U.S.A v. Wilder

• Decision Date: 10 March 2010
• Docket Number: Nos. 08-3056, 08-3265, 08-3565, 08-3570.,s. 08-3056, 08-3265, 08-3565, 08-3570.
• Citation: 597 F.3d 936
• Parties: UNITED STATES of America,Appellee, v. Timothy B. WILDER, Appellant. United States of America, Appellee, v. Lawrence Verl Smith, Appellant. United States of America, Appellee, v. Andre L. Williams, Appellant. United States of America, Appellee, v. Willie Curry, Jr., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

597 F.3d 936

UNITED STATES of America, Appellee, v. Timothy B. WILDER, Appellant. United States of America, Appellee, v. Lawrence Verl Smith, Appellant. United States of America, Appellee, v. Andre L. Williams, Appellant. United States of America, Appellee, v. Willie Curry, Jr., Appellant.

Nos. 08-3056, 08-3265, 08-3565, 08-3570.

United States Court of Appeals,

Eighth Circuit.

Submitted: Oct. 22, 2009.

Filed: March 10, 2010.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

David R. Treimer, Davenport, IA, for Timothy B. Wilder.

Alfred E. Willett, Cedar Rapids, IA, for Lawrence Verl Smith.

Curtis Lee Blood, Collinsville, IL, for Willie Curry, Jr.

Stephen P. Wing, Davenport, IA, for Andre L. Williams.

Clifford R. Cronk, AUSA, argued, Davenport, IA, for United States of America.

Before COLLOTON and BENTON Circuit Judges, and PIERSOL, ¹ District Judge.

COLLOTON, Circuit Judge.

These consolidated appeals arise from judgments entered in a criminal case that originated with a multi-defendant indictment alleging a conspiracy to distribute cocaine and related charges in the Southern District of Iowa. The case against four defendants proceeded to trial, and appellant Lawrence Smith pled guilty after opening statements to one count of maintaining a drug-involved premises, in violation of 21 U.S.C. § 856. The district court² sentenced him to 51 months' imprisonment. Appellants Timothy Wilder Andre Williams, and Willie Curry, Jr. were convicted by a jury on all counts charged. Williams was found guilty on one count of conspiracy to distribute cocaine, two counts of opening and maintaining a drug-involved premises, and one count of distributing cocaine. Wilder was convicted on one count of conspiracy, one count of opening and maintaining a druginvolved premises, and two counts of distribution. Curry was found guilty on one count of conspiracy and two counts of distribution. The district court sentenced Wilder to 360 months', Williams to 292 months', and Curry to 137 months' imprisonment, respectively.

Williams and Curry challenge their convictions based on sufficiency of the evidence and alleged trial-related errors. Williams, Wilder, and Smith appeal their sentences. We affirm.

I.

Viewed in the light most favorable to the verdict, the evidence at trial showed a drug trafficking operation based at 206 East 12th Street and 809 Perry Street in Davenport, Iowa, during 2006 and 2007. The Perry Street apartment was rented by Williams and Amber Self, and it was used for the division and packaging of cocaine. The 12th Street apartment, occupied by Tony Hauschild and owned by Smith served as the distribution center.

Williams played a leadership role in the distribution ring, buying crack cocaine from out-of-town suppliers and overseeing its packaging at Perry Street and sale from the 12th Street apartment. Williams also introduced new members to the conspiracy and established them at the 12th Street apartment to make sales. One of these people was Timothy Wilder, whom Williams installed as the supervisor of the sales operation there.

In the spring of 2006, a confidential informant introduced Curry to Special Agent Matthew Allers of the Iowa Division of Narcotics Enforcement, who was posing as a would-be drug purchaser. On two occasions, Curry sold crack cocaine to Special Agent Allers, and agents arrested Curry on February 8, 2007. The government relied on Curry's post-arrest statement his cell phone and phone records, and recent residence in an apartment at 206 East 12th Street to link him to members of the conspiracy.

In March 2007, surveillance officers observed Williams leave 809 Perry Street carrying two duffel bags and enter a waiting Cadillac driven by William Combs. After the car drove away, officers executed a traffic stop and searched the car with consent. They found a digital scale and more than $5000 in cash, most of which was stored in the duffel bags. The officers also confiscated Williams's key ring, which included a key to Apartment 5 at 809 Perry Street. The officers went to 809 Perry Street, obtained consent to search, and proceeded to search the unit. In a locked closet, opened by another key on Williams's ring, officers found several empty prescription pill bottles. Knowing that drug traffickers often use the corners of plastic baggies to package rocks of crack cocaine, the officers seized thirty-two baggies with corners missing from a trash receptacle, and they found other materials often used for packaging drugs.

In April 2007, Special Agent Allers, working undercover, made two purchases of crack cocaine from 206 East 12th Street. Wilder furnished the crack cocaine that Allers obtained in his first undercover purchase, and Wilder pocketed the money. Later that month, police arrested Wilder after a search of a vehicle in which Wilder was riding uncovered several crack pipes and a small amount of crack cocaine.

On May 9, 2007, Williams visited the police station in Davenport intending to retrieve money that had been seized at the time of the traffic stop in March. A warrant had been issued for his arrest, and Williams was arrested upon his arrival at the station. Two weeks later, law enforcement officers searched the residence at 206 East 12th Street, and Smith was arrested in the wake of this search.

The trial commenced on February 15, 2008, and the jury returned its verdicts on February 22. The district court imposed sentences later in the year, and these appeals followed.

II.

A.

Williams argues that the district court abused its discretion by refusing to admit three pieces of evidence that he offered at trial: (i) a recording of a postarrest statement given by Lawrence Smith; (ii) a recording of a conversation between Williams and Combs that took place in a squad car after the two were arrested in March 2007; and (hi) a document from the Scott County, Iowa, Attorney's Office that ordered law enforcement officers to return to Williams the money seized from him at the time of his arrest. We review a district court's evidentiary rulings for abuse of discretion. United States v. Espinosa, 585 F.3d 418, 430 (8th Cir.2009).

Williams sought to introduce portions of a recorded post-arrest statement made by Lawrence Smith on May 23, 2007. According to Williams, he sought to offer the statement by Smith to rebut incriminating trial testimony of prosecution witness Ryan Shoup about Williams's interaction with Smith. Although Williams has not furnished Smith's statement or represented that it was made part of the record as an offer of proof, he contends that Smith denied direct dealings with Williams, and that his out-of-court statements would have contradicted Shoup.

At trial, Williams suggested that the prior statement was admissible because Smith was unavailable to testify. See Fed R.Evid. 804. The district court excluded the recording as inadmissible hearsay finding that there had not been a sufficient showing of unavailability under Rule 804, that the statement was not sufficiently against penal interest to make it admissi-ble under Rule 804(b)(3), and that there were no corroborating circumstances that established the reliability of Smith's prior statement. After Smith's attorney represented that Smith would exercise his Fifth Amendment right against self-incrimination if called as a witness, the court stated that it was persuaded of Smith's unavailability and offered to revisit its ruling if Williams offered Smith's prior statement as evidence. Williams does not point to a place in the trial when Smith's statement was offered, and we see none.

We doubt that Williams preserved this evidentiary issue for appeal, see United States v. Elbert, 561 F.3d 771, 775 (8th Cir.2009), but in any event, we see no abuse of discretion in the district court's preliminary ruling. The district court properly rejected Williams's reliance on Rule 804(b)(3), because Smith's exculpatory statements denying drug activity with Williams were not statements against interest that might be admissible under that provision. On appeal, Williams asserts that it can be reversible error to preclude defense counsel from impeaching the veracity of "hearsay declarants." See United States v. Moody, 903 F.2d 321, 327-30 (5th Cir.1990). That may be true, but Shoup was a witness at trial, not a hearsay declarant. Smith's prior statement was properly excluded.

Williams next contends that the district court abused its discretion by excluding the recorded conversation between Williams and Combs in the police car after their arrests in March 2007. The statements apparently included Williams's commentary about why he was stopped by police and the perceived unfairness of the stop, as well as Williams's assertions about the source of money that was in his possession. The district court ruled that Williams's statements were hearsay, and that they were not admissible to show Williams's "state of mind, " see Fed.R.Evid. 803(3), because state of mind was not relevant at that point.

The district court correctly determined that Williams's state of mind after his arrest was not relevant to the charges in the indictment. See. United States v. Udey, 748 F.2d 1231, 1243 (8th Cir.1984). Nor were Williams's exculpatory statements after arrest admissible as statements of a co-conspirator in furtherance of a conspiracy, as Williams now suggests. Federal Rule of Evidence 801(d)(2)(E) excludes from hearsay only co-conspirator statements offered "against a party, " that is, against the party making the statement. See United States v. Kapp, 781 F.2d 1008, 1014 (3d Cir.1986); see also United States v. Smith, 520 F.2d 1245, 1247 & n. 2 (8th Cir.1975). There was no abuse of discretion.

Williams also disputes the district court's refusal to admit a document that he asserts was a copy of an internal memorandum from the Davenport Police Department. Williams contends that the memorandum established a finding of the police department that the cash seized from Williams was not "...