U.S. v. Williams

• Decision Date: 19 August 2003
• Docket Number: No. 02-3941.,02-3941.
• Citation: 340 F.3d 563
• Parties: UNITED STATES of America, Appellee, v. Edward Lee WILLIAMS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

340 F.3d 563

UNITED STATES of America, Appellee, v. Edward Lee WILLIAMS, Appellant.

No. 02-3941.

United States Court of Appeals, Eighth Circuit.

Submitted: May 16, 2003.

Filed: August 19, 2003.

Rehearing and Rehearing En Banc Denied: September 25, 2003.

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John F. Broz, argued, Cedar Rapids, IA, for appellant.

Peter E. Deegan, Jr., argued, Asst U.S. Atty., Cedar Rapids, IA, for appellee.

Before BOWMAN and BYE, Circuit Judges, and ERICKSEN,¹ District Judge.

BOWMAN, Circuit Judge.

Edward Lee Williams raises five issues in this appeal of his conviction for one count of aiding and abetting the distribution of cocaine base. We affirm.

The charge against Williams arose from a controlled purchase of cocaine base on July 18, 2001. Special Agent Brugman of the Iowa Division of Narcotics Enforcement and a confidential informant, James Kimpton, arranged to buy the cocaine base from Williams's sister, Emma, at her apartment in Cedar Rapids. After entering the apartment, Brugman asked Williams's sister for one-quarter ounce of cocaine base. This discussion and the ensuing conversation between Brugman, Kimpton, and Williams's sister were audio-taped by the Government. Williams's sister left and re-entered the apartment several times during the transaction. At one point, she used Brugman's cell phone to call her source for the drugs; after placing that call, she told Brugman that her brother would come inside to let her know when the source had arrived at the apartment. Shortly thereafter, Williams's sister left the apartment and returned with a plastic bag containing one-eighth of one ounce of cocaine base. A few minutes later, she met her brother in the hallway immediately outside the apartment. Brugman followed her but stopped at the apartment doorway, which was approximately eight-to-ten feet from where Williams and his sister stood. From there, Brugman saw Williams extend his arm and his sister take a small plastic bag containing 1.42 grams of cocaine base, which she then carried back to the apartment in the palm of her hand. The charge against Williams was based on this exchange. Williams never came any closer to Brugman nor did he enter the apartment.

We now address the five issues raised by Williams.

I. Brugman's Identification of Williams

Brugman testified at trial that on the day after the controlled purchase, he viewed a copy of a prior arrest photograph of Williams and identified Williams as the person who handed the cocaine base to his sister. Trial Tr. at 92. Williams contends that Brugman's pretrial identification of Williams was overly suggestive and therefore should have been suppressed by the District Court.² We review de novo. United States v. Johnson, 56 F.3d 947, 953 (8th Cir.1995).

A two-part test governs the admissibility of identification evidence. First, we determine if the identification procedures were "impermissibly suggestive." Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). If they were, we examine the totality of the circumstances to determine whether the suggestive procedures created "a very substantial likelihood of irreparable misidentification." Simmons, 390 U.S. at 384, 88 S.Ct. 967; see also Manson v. Brathwaite, 432 U.S. 98, 113, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) (reaffirming totality-of-circumstances standard rather than exclusionary rule). The Government concedes that the identification procedure used by Brugman was impermissibly suggestive. Br. of Appellee at 10. We therefore move to the second part of the test — the likelihood of misidentification — in which we consider "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation." Manson, 432 U.S. at 114, 97 S.Ct. 2243. We have balanced these five factors and conclude there was very little likelihood of misidentification. Brugman viewed Williams from eight-to-ten feet away in the hallway of the apartment during daytime hours. Although Brugman saw Williams only for a moment, there is no evidence of poor lighting or an obstructed view. A twenty-year veteran of the Iowa Division of Narcotics Enforcement who is frequently involved in controlled purchases with persons whom he has never seen, Trial Tr. at 81, 150-51, Brugman surely employed his highest degree of attention throughout the controlled purchase. Although Brugman did not describe Williams immediately following the controlled purchase, he witnessed a photograph of Williams within two days of the purchase and recognized him at that time. For these reasons, we reject Williams's argument that the pretrial identification should have been suppressed.

II. Alleged Hearsay Statements

Williams next argues that the District Court erred in failing to suppress statements made by his sister during the controlled purchase that he believes are hearsay. The statements were taped by the Government, and the jury listened to the tape and received a copy of its transcript to follow during the playing of the tape (the jury was not allowed to keep the transcript after the playing of the tape was completed). The statements by Williams's sister were also admitted at trial through Brugman's testimony.

Hearsay is "a statement, other than one made by the declarant while testifying at ... trial, offered in evidence to prove the truth of the matter asserted," Fed.R.Evid. 801(c), and is generally inadmissible, Fed.R.Evid. 802. But a statement is not hearsay if it is offered against a party and was made "by a coconspirator of a party during the course and in furtherance of the conspiracy." Fed.R.Evid.801(d)(2)(E). More specifically, a statement is admissible pursuant to Rule 801(d)(2)(E) "if the government demonstrates (1) that a conspiracy existed; (2) that the defendant and the declarant were members of the conspiracy; and (3) that the declaration was made during the course and in furtherance of the conspiracy." United States v. Bell, 573 F.2d 1040, 1043 (8th Cir.1978). The standard of proof for these requirements is preponderance of the evidence. Id. at 1044. Williams argues that the statements made by his sister, who did not testify at trial, were offered to prove the truth of the matters she asserted. The District Court, however, ruled that her statements were not hearsay because they met the requirements of Rule 801(d)(2)(E). We review evidentiary rulings for an abuse of discretion. United States v. Alcantar, 271 F.3d 731, 739 (8th Cir.2001), cert. denied, 535 U.S. 964, 122 S.Ct. 1380, 152 L.Ed.2d 371 (2002).

Williams offers two arguments for why Rule 801(d)(2)(E) should not apply. We find his first argument — that "[a] sale of drugs does not constitute a conspiracy," Br. of Appellant at 15 — to be frivolous. In the criminal context, a "conspiracy" is "`an agreement between at least two people'" whose "`objective was a violation of the law.'" United States v. Guerrero-Cortez, 110 F.3d 647, 651 (8th Cir.) (quoting United States v. Jenkins, 78 F.3d 1283, 1287 (8th Cir.1996) (internal quotations omitted)), cert. denied, 522 U.S. 1017, 118 S.Ct. 604, 139 L.Ed.2d 492 (1997). Obviously, an agreement between two persons to sell drugs in violation of federal law meets this definition.

Williams also contends that his participation in a conspiracy was not proven by independent evidence, as he believes it must be, but instead only by his sister's statements, the very statements he argues are hearsay. Contrary to Williams's assertion, the District Court relied on more than his sister's statements in concluding that he and his sister were involved in a conspiracy. In particular, the District Court considered Brugman's testimony that he saw Williams hand his sister a plastic bag containing cocaine base. The circumstances surrounding this exchange — its rapid occurrence in the back hallway of a small apartment while purchasers waited in the front of the apartment — are strong hints Williams knew his sister intended to sell the drugs rather than use them herself. Cf. Iannelli v. United States, 420 U.S. 770, 777 n. 10, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975) (explaining that agreement underlying conspiracy can "be inferred from the facts and circumstances of the case"). Taken together, the independent evidence and the statements provide proof of a conspiracy in which Williams and his sister were involved, and there is little doubt that her statements were "made during the course and in furtherance of the conspiracy" — a sale of cocaine base was ongoing, and her statements were made with the purpose of explaining the sale procedure to the purchasers. Accordingly, the District Court did not abuse its discretion by admitting the statements.

III. Evidence of Prior Drug Conviction

Williams was convicted in 1996 in Iowa state court of delivery of cocaine base. Over Williams's objection, the District Court permitted the Government to introduce the 1996 conviction as evidence of Williams's knowledge of cocaine base and his intent to aid and abet in its distribution. Williams argues that introducing the conviction violated Rule 404(b) of the Federal Rules of Evidence. Again, our review is for abuse of discretion. United States v. LeCompte, 99 F.3d 274, 277 (8th Cir.1996).³

Evidence of a prior crime is admissible if the prior crime is relevant to a material issue, similar in kind and close in time to the charged crime, and supported by sufficient evidence. United States v. Ruiz-Estrada, 312 F.3d 398, 403 (8th Cir.2002), cert. denied, ___ U.S. ___, 123 S.Ct. 1766, 155 L.Ed.2d 525 (2003). In addition, its probative value must not be outweighed by any improper prejudicial impact. Id. Evidence of a prior crime is inadmissible, however, "to prove the character of a person in order to show action in conformity...