U.S. v. Womack, 98-3519

• Decision Date: 10 March 1999
• Docket Number: No. 98-3519,98-3519
• Citation: 191 F.3d 879
• Parties: (8th Cir. 1999) United States of America, Appellee, v. Alex E. Womack, Eastern Division Appellant. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 879

191 F.3d 879 (8th Cir. 1999)

United States of America, Appellee, v. Alex E. Womack, Eastern Division Appellant.

No. 98-3519

United States Court of Appeals FOR THE EIGHTH CIRCUIT

Submitted: March 10, 1999

Filed: September 15, 1999

Appeal from the United States District Court for the Northern District of Iowa [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before McMILLIAN, MORRIS SHEPPARD ARNOLD, Circuit Judges, and NANGLE,¹ Senior District Judge.

NANGLE, Senior District Judge.

Alex E. Womack appeals from the final judgment entered in the District Court for the Northern District of Iowa upon a jury verdict finding him guilty of conspiracy to distribute fifty or more grams of cocaine base (crack) in violation of 21 U.S.C. 846. The district court sentenced Womack to 292 months imprisonment, with five years supervised release and $100 special assessment. Womack appeals on four grounds: (1) the district court erroneously admitted inadmissible hearsay statements at trial, (2) the evidence does not support the jury's verdict, (3) the district court erroneously denied Womack's motion for new trial based upon newly discovered evidence, and (4) the district court erred in applying a four level increase when sentencing Womack pursuant to the United States Sentencing Guidelines. We affirm.

I. BACKGROUND

On March 13, 1997, Womack was indicted for two counts of distribution of cocaine base in violation of 21 U.S.C. 841 (a) (1). Clerk's R. at 1-2. On April 25, 1997, a superseding indictment was filed which added a third count. This count charged that between 1992 and 1997, Womack conspired "to distribute and possess with the intent to distribute fifty or more grams" of crack cocaine in violation of 21 U.S.C. 846. Clerk's R. at 3-4. Prior to the trial, which began on October 21, 1997, the government dismissed the two distribution counts. The jury found Womack guilty on the conspiracy count on October 24, 1997. Clerk's R. at 19. Womack then filed a pro se motion for new trial. Clerk's R. at 20.

On November 19, 1997, Judge Melloy received a letter from Dennis Patrick Murphy, an inmate at Linn Correctional Center, which alleged that some of the government's witnesses had fabricated testimony at Womack's trial. Appellant's Br. Add. at A-5 through A-10. On November 25, 1997, Womack filed a motion for a new trial based upon newly discovered evidence as a result of the emergence of this letter. Appellant's Br. at 2. The hearing on the motion for new trial began on February 20, 1998. On March 13, 1998, Womack filed a motion for new trial based on ineffective assistance of counsel. Clerk's R. at 22. The court held a hearing on March 20, 1998 and authorized Womack's trial counsel to withdraw. The court appointed substitute counsel, who represented Womack in the motion for new trial hearing on June 1 and 10, 1998. Appellant's Br. at 2.

On July 15, 1998, Womack filed an amended motion for new trial based on ineffective assistance of counsel. On August 20, 1998, Judge Melloy denied Womack's motion for new trial based upon the newly discovered evidence but declined to rule on the ineffective assistance of counsel claims, explaining that these claims would be more appropriately raised at the post conviction stage. Clerk's R. at 25; Appellant's Br. at 2.

At the sentencing hearing on September 14, 1998, the district court assigned Womack a base offense level of 36 pursuant to U.S.S.G. 2D1.1, after determining that the drug quantity attributable to Womack was 850 grams. Tr. Sentencing Hr'g Sept. 14, 1998, at 26. The court imposed a four level enhancement for playing an aggravating role in the offense, pursuant to U.S.S.G. 3B1.1. Tr. Sentencing Hr'g, Sept. 14, 1998, at 29-31. Womack had no criminal history, and Judge Melloy placed him in criminal history category I. Appellant's Br. at 3; Appellee's Br. at 2. Since Womack's total offense level was now 40, the guideline range for that level was 292 to 365 months. Judge Melloy sentenced Womack to serve 292 months, with five years supervised release and $100 special assessment. Tr. Sentencing Hr'g, Sept. 14, 1998, at 35-38. Womack then filed a timely notice of appeal. Clerk's R. at 26.

At trial, four witnesses testified to conversations between themselves and Ronnie Rice, an alleged co-conspirator with Womack in the drug business. Appellant's Br. at 11-12; Appellee's Br. at 16. Three witnesses testified to conversations they had with someone named "Mike" or "Mike Thurman," another alleged co-conspirator with Womack. Appellant's Br. at 13; Appellee's Br. at 17. One other witness testified to a conversation he had with a man named Chuckie, another alleged co-conspirator.Appellant's Br. at 14; Appellee's Br. at 19. A total of thirteen witness testified that they had bought crack cocaine from Womack, had seen Womack in possession of large quantities of crack, had seen him selling crack to others, or had seen Womack direct others to sell crack for him. Appellee's Br. at 2-13. Womack alleges that five of these witnesses fabricated their stories in order to obtain downward departures from the government. Appellant's Br. at 16. Womack's girlfriend and another woman testified on his behalf. The second woman testified that one of the government's witnesses had attempted to persuade her to gather evidence against Womack. Appellant's Br. at 7.

At the hearing for new trial, Womack called Murphy and five other witnesses who testified that five of the government witnesses had worked together to fabricate their stories about Womack. The government called those five trial witnesses, who all denied lying under oath. Appellant's Br. at 7-9.

II. DISCUSSION

A. Admissibility of Alleged Co-Conspirators' Statements

Womack argues that the district court erred by admitting numerous hearsay statements as co-conspirator statements made during the course of and in furtherance of the alleged conspiracy. Womack alleges that the testimony of the witnesses as to their conversations with Ronnie Rice, Mike Thurman, and Chuckie were not admissible because there was no evidence that Rice, Thurman, Chuckie and Womack were in a conspiracy together. Further, Womack argues, the alleged statements were not made in furtherance of a conspiracy. Appellant's Br. at 11-14.

The Court reviews a district court's determination to admit evidence under the deferential abuse of discretion standard. United States v. Johnson, 28 F.3d 1487, 1496 (8th Cir. 1994), cert. denied, 513 U.S. 1098 (1995) (citing United States v. Layne, 973 F.2d 1417, 1421-22 (8th Cir. 1992), cert. denied, 506 U.S. 1066 (1993)). The district court's decision will be affirmed unless there is "a clear and prejudicial abuse of discretion." Id. at 1498; United States v. McCracken, 110 F.3d 535, 542 (8th Cir. 1997). Womack argues that the district court's admission of the alleged co-conspirator hearsay statements was an abuse of discretion

In order to admit statements of co-conspirators against a defendant, "the government must prove by a preponderance of the evidence that (1) a conspiracy existed; (2) the defendant and the declarant were members of the conspiracy; and (3) the declaration was made during the course of and in furtherance of the conspiracy." United States v. Guerra, 113 F.3d 809, 813 (8th Cir. 1997). Further, the court may consider the co-conspirator statement itself when determining whether a conspiracy existed. Bourjaily v. United States, 483 U.S. 171, 176-81(1987); U.S. v. Wood, 851 F.2d 185, 189 (8th Cir. 1988). In United States v. Bell, 573 F.2d 1040, 1043 (8th Cir. 1978), we set out the procedure for determining the admissibility of a co-conspirator's statement. In that case, the Court explained that the district court may admit the hearsay statement of alleged co-conspirators on the condition that the government "prove by a preponderance of the independent evidence that the statement was made by a co-conspirator during the course and in furtherance of a conspiracy." Id. at 1044. ²

In the instant case, there was sufficient evidence for the district court to find a conspiracy between Rice, Thurman, Chuckie and Womack. Several witnesses testified that Rice and Thurman delivered cocaine that the witnesses had ordered from Womack. Other witnesses testified that they saw Womack supply Rice and Thurman cocaine for the purpose of selling it. Additionally, some of the witnesses testified that they were told by Rice and Thurman that they were working for Womack and that Womack supplied the two men with crack cocaine to sell. Appellant's Br. at 3-7; Appellee's Br. at 2-13. One witness testified to receiving crack from Womack through Chuckie. The witness testified that Chuckie stated that he was working for Womack. Appellant's Br. at 14; Appellee's Br. at 8. The evidence suggests that the admitted statements were made by members of a conspiracy and in furtherance of that conspiracy. Under the circumstances, the district court did not abuse its discretion by admitting these hearsay statements.

B. Sufficiency of Evidence to Support Jury Verdict

Womack argues that there was insufficient evidence to convict him of conspiracy. We must review the sufficiency of the evidence in the light most favorable to the government. United States v. Jorgensen, 144 F.3d 550, 557 (8th Cir. 1998) (citing United States v. Berndt, 86 F.3d 803, 809 (8th Cir. 1996)). The court "can reverse for insufficient evidence only if no reasonable jury could have found the defendant guilty beyond a reasonable doubt." United States v. Roach, 28 F.3d 729, 736 (8th Cir. 1994).

In order to prove that a conspiracy existed, the government must prove that two or more people agreed to commit an unlawful act. The government must also prove that at least one of these people acted to achieve the unlawful act. It must be proven, beyond a reasonable doubt, that the defendant knew the main object of the conspiracy. United States v. Slaughter, 128 F.3d 623, 628 (8th Cir....