U.S. v. Yerks

• Decision Date: 21 November 1990
• Docket Number: No. 89-2621WM,89-2621WM
• Citation: 918 F.2d 1371
• Parties: 31 Fed. R. Evid. Serv. 885 UNITED STATES of America, Appellee, v. Troy Carlos YERKS, (John Doe, a/k/a Spanky, James Dennis Stewart, Prince Gervell Campbell, John Dennis Smith, Tim Smith, James Carlos Smith), Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1371

918 F.2d 1371

31 Fed. R. Evid. Serv. 885

UNITED STATES of America, Appellee, v. Troy Carlos YERKS, (John Doe, a/k/a Spanky, James Dennis Stewart, Prince Gervell Campbell, John Dennis Smith, Tim Smith, James Carlos Smith), Appellant.

No. 89-2621WM.

United States Court of Appeals Eighth Circuit.

Submitted March 15, 1990.

Decided Nov. 21, 1990.

R. Steven Brown, Federal Public Defender, Springfield, Mo., for appellant.

Richard E. Monroe, Asst. U.S. Atty., Springfield, Mo., for appellee.

Before JOHN R. GIBSON, Circuit Judge, BRIGHT, Senior Circuit Judge, and MAGILL, Circuit Judge.

MAGILL, Circuit Judge.

Troy Yerks was convicted by a jury of possession of crack cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1), (b)(1)(A), and was sentenced to thirty years' imprisonment. Yerks appeals his conviction and sentence, contending that the district court ¹ erred by (1) admitting other crimes evidence; (2) denying his motion for judgment of acquittal based upon insufficiency of the evidence; and (3) incorrectly applying the Sentencing Guidelines. We affirm.

I.

On April 25, 1989, officers of the Springfield, Missouri Police Department executed a search warrant at Apartment F-22 of the Briarwood Apartments complex in Springfield. The officers seized a large quantity of crack cocaine that was hidden in the tank of the toilet. Yerks arrived during the search and unlocked the apartment door with a key he had. He was arrested in the hallway outside the apartment as he attempted to flee. Yerks told the officers he had come to visit a friend and that the friend had given him the key, but then later asked one of the officers how they had found out about the apartment. As he was escorted from the apartment building, Yerks attempted to escape custody. He also yelled to his girlfriend the number combination for a safe located in her apartment, where he frequently stayed, telling her to get the money and get him out.

Other items found in Apartment F-22 included the safe's combination, a rent receipt for April 1989 bearing one of Yerks' aliases, an expensive stereo system, cash, and a set of triple-beam scales. The apartment contained no furniture and appeared as though it was not being used as a residence.

II.

A.

Yerks argues that the district court erred in admitting evidence that he distributed crack cocaine in the months preceding his arrest. Four witnesses testified that they repeatedly received crack from Yerks during this period. These witnesses were admitted drug users and had been promised that they would not be prosecuted for the crimes about which they testified. In addition, a Springfield police officer testified that on several occasions he had seen Yerks in a particular vehicle with two of the four witnesses and had often observed this vehicle near a house where illegal drugs were sold.

Other crimes evidence is admissible under Fed.R.Evid. 404(b) if it is (1) relevant to a material issue; (2) of crimes similar in kind and reasonably close in time to the crime charged; (3) sufficient to support a jury finding that the defendant committed the other crimes; and (4) more probative than prejudicial. United States v. Dobynes, 905 F.2d 1192, 1194-95 (8th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 206, 112 L.Ed.2d 167 (1990). We view Rule 404(b) as a rule of inclusion, "permitting admission of other crimes evidence unless it tends to prove only the defendant's criminal disposition." Id. at 1195. The district court has broad discretion in determining whether to admit such evidence, and " 'its decision will not be overturned unless it is clear that the evidence had no bearing upon any of the issues involved.' " Id. (quoting United States v. O'Connell, 841 F.2d 1408, 1422 (8th Cir.), cert. denied, 487 U.S. 1210, 108 S.Ct. 2857, 101 L.Ed.2d 893 (1988), 488 U.S. 1011, 109 S.Ct. 799, 102 L.Ed.2d 790 (1989)).

In light of these principles, we cannot say that the district court erred in admitting the evidence of prior crack cocaine distribution by Yerks. This evidence was certainly relevant to establishing that Yerks intended to distribute the crack seized in Apartment F-22. The credibility of the witnesses was for the jury to evaluate. United States v. Hudson, 717 F.2d 1211, 1213 (8th Cir.1983). If given credence, their testimony was enough to permit a finding that Yerks had engaged in the prior distribution. We are satisfied that the other requirements for admission were also met and note that the district court properly instructed the jury several times as to the limited purposes for which the other crimes evidence could be considered.

B.

To convict Yerks of violating Sec. 841(a)(1), the government had to prove that he knowingly possessed cocaine and had the intent to distribute it. United States v. Matra, 841 F.2d 837, 840 (8th Cir.1988). Yerks contends that the district court should have granted his motion for judgment of acquittal because the evidence was insufficient to establish either of these elements. In reviewing this contention, we must examine the evidence in the light most favorable to the government, giving the government the benefit of all reasonable inferences that may logically be drawn from the evidence. See, e.g., United States v. Adkins, 842 F.2d 210, 212 (8th Cir.1988). We may overturn the jury's verdict "only if the evidence so viewed is such that a reasonable-minded jury must have entertained a reasonable doubt as to the government's proof of one of the essential elements of the offense." United States v. Noibi, 780 F.2d 1419, 1421 (8th Cir.1986) (emphasis in original). Applying this standard, we have no difficulty concluding that the district court properly denied Yerks' motion for acquittal.

"Proof of constructive possession is sufficient to satisfy the element of knowing possession under Sec. 841(a)(1)." Matra, 841 F.2d at 840. "A person has constructive possession of contraband if he has 'ownership, dominion or control over the contraband itself, or dominion over the premises in which the contraband is concealed.' " Id. (quoting United States v. Cardenas, 748 F.2d 1015, 1019 (5th Cir.1984)) (emphasis added). Both the manager and the leasing agent for the Briarwood Apartments identified Yerks as the person who rented Apartment F-22 in late March 1989. At the time of his arrest one month later, Yerks possessed the key to the apartment. This and other evidence of Yerks' dominion over Apartment F-22 were more than adequate to establish his constructive possession of the seized crack cocaine. See United States v. Brett, 872 F.2d 1365, 1369 & n. 3 (8th Cir.) (possession of key to front door of residence sufficient to prove constructive possession of cocaine concealed therein), cert. denied, --- U.S. ----, 110 S.Ct. 322, 107 L.Ed.2d 312 (1989).

The intent to distribute may be proven by circumstantial evidence and "may be inferred from such things as the possession of a large quantity of a controlled substance, its high purity level, the presence of paraphernalia used to aid in its distribution, large sums of unexplained currency, and the presence of firearms." Matra, 841 F.2d at 841. A police chemist testified that the substance recovered from the toilet tank in Apartment F-22 weighed 314.7 grams and was approximately 82% cocaine base. An experienced officer conservatively estimated the street value of this crack cocaine to be $63,300, and further testified that the type of scales found in the apartment are commonly used to weigh out drugs. Also found in the apartment was $1,298.25 in cash. An additional $7,525 in cash was discovered in the safe in Yerks' girlfriend's apartment. In combination with the testimony concerning prior crack cocaine distribution by Yerks, this evidence was clearly sufficient to support an inference that he had the intent to distribute the crack hidden in Apartment F-22. See United States v. Peters, 912 F.2d 208, 211 (8th Cir.1990) (intent to distribute established by quantity and purity of crack cocaine seized and drug paraphernalia seized).

III.

At the sentencing hearing, the district court set Yerks' total offense level at 42 and his criminal history category at III. This resulted in an applicable guideline range of 360 months to life. See Sentencing Guidelines Ch. 5, Pt. A (sentencing table). The court then sentenced Yerks to 360 months' imprisonment and five years of supervised release. Yerks argues that the court incorrectly applied the guidelines in (1) setting his base offense level at 36 rather than 34 under guidelines Sec. 2D1.1(a)(3); (2) increasing his offense level by four levels under guidelines Sec. 3B1.1(a); (3) increasing his offense level by two levels under guidelines Sec. 3C1.1; and (4) failing to consider a downward departure from the applicable guideline range.

We turn first to the adjustment under Sec. 3B1.1(a), which provides for a four-level increase "[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive." We have recognized that this section "employs a very broad definition of what constitutes a 'leadership and organizational role.' " United States v. Collar, 904 F.2d 441, 442 (8th Cir.1990); see also United States v. Johnson, 906 F.2d 1285, 1291-92 (8th Cir.1990) (finding that defendant is functioning as an organizer or leader does not necessarily mean he is directly controlling other individuals). A finding that the defendant was an organizer or leader for the purpose of Sec. 3B1.1(a) is reviewed under the clearly erroneous standard. United States v. Wayne, 903 F.2d 1188, 1198 (8th Cir.1990).

The evidence at trial supported a finding that there were at least five other participants in Yerks' criminal activity. There was testimony that Yerks fronted crack cocaine to one person, sold...