United States v. Dunn, s. 11–3255

• Decision Date: 03 September 2013
• Docket Number: 11–3258,11–3257,11–3256,11–3318.,Nos. 11–3255,s. 11–3255
• Citation: 723 F.3d 919
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Adrian L. DUNN, Defendant–Appellant. United States of America, Plaintiff–Appellee v. Danny R. Moore, Defendant–Appellant. United States of America, Plaintiff–Appellee v. Cheo D. Miles, Defendant–Appellant. United States of America, Plaintiff–Appellee v. Vincent E. Charles, Defendant–Appellant. United States of America, Plaintiff–Appellee v. Dennis L. Westbrook, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

723 F.3d 919

UNITED STATES of America, Plaintiff–Appellee

v.Adrian L. DUNN, Defendant–Appellant.

United States of America, Plaintiff–Appellee

v.Danny R. Moore, Defendant–Appellant.

United States of America, Plaintiff–Appellee

v.Cheo D. Miles, Defendant–Appellant.

United States of America, Plaintiff–Appellee

v.Vincent E. Charles, Defendant–Appellant.

United States of America, Plaintiff–Appellee

v.Dennis L. Westbrook, Defendant–Appellant.

Nos. 11–3255, 11–3256, 11–3257, 11–3258, 11–3318.

United States Court of Appeals, Eighth Circuit.

Submitted: Feb. 12, 2013.

Filed: July 22, 2013.

Rehearing Denied Sept. 3, 2013.

Christine M. Blegen, Blegen Law Firm, LLC, Lee's Summit, MO, argued, for appellant Adrian L. Dunn.

Adrian L. Dunn, Oakdale, LA, pro se.

David E. Woods, O'Fallon, MO, argued (Ronald E. Partee, Kansas City, MO, on the brief), for appellant Danny R. Moore.

Danny R. Moore, Greenville, IL, pro se.

Susan M. Hunt, Kansas City, MO, argued, for appellant Cheo D. Miles.

Patrick J. O'Connor, Kansas City, MO, argued, for appellant Vincent E. Charles.

Charles D. Lamb, Kansas City, MO, argued, for appellant Dennis L. Westbrook.

Joseph M. Marquez, Asst. U.S. Atty., Kansas City, MO, argued (David M. Ketchmark, Acting U.S. Atty., Philip M. Koppe, Asst. U.S. Atty., on the brief), for appellee.

Before RILEY, Chief Judge, LOKEN and SHEPHERD, Circuit Judges.

LOKEN, Circuit Judge.

After a five-day trial, a jury convicted Adrian Dunn, Cheo Miles, Dennis Westbrook, Danny Moore, and Vincent Charles of conspiring to distribute five kilograms or more of cocaine and convicted Dunn, Westbrook, and Moore of using a communication facility to facilitate cocaine distribution. See21 U.S.C. §§ 841(a)(1), (b)(1)(A), 843(b) and (d), and 846. The district court ¹ sentenced Dunn to 262 months in prison, Miles and Westbrook to 240 months, Moore to 175 months, and Charles to 151 months. In these consolidated appeals, they raise many challenges to their convictions and sentences. We will first address two issues raised by more than one appellant and then take up additional issues raised by each. We affirm the convictions and sentences.

I. Sufficiency of the Evidence

Dunn, Moore, and Charles argue the evidence was insufficient to support their cocaine conspiracy convictions. To convict a defendant of conspiracy to distribute cocaine, the government must prove the defendant knew of and intentionally joined a conspiracy (agreement) to distribute cocaine. United States v. Huggans, 650 F.3d 1210, 1222 (8th Cir.2011), cert. denied,––– U.S. ––––, 132 S.Ct. 1583, 182 L.Ed.2d 172 (2012). We review the sufficiency of the evidence de novo, viewing evidence in the light most favorable to the jury's verdict, resolving conflicts in the government's favor, and accepting all reasonable inferences that support the verdict. United States v. Miller, 698 F.3d 699, 702 (8th Cir.2012), cert. denied,––– U.S. ––––, 133 S.Ct. 1296, 185 L.Ed.2d 224 (2013).

At trial, the government presented testimony by numerous law enforcement agents and then by its primary witness, conspiracy leader Alejandro Corredor, pursuant to his plea agreement. Corredor testified that, from the summer of 2007 until his arrest in June 2009, he received forty to fifty kilograms of cocaine each month from his contacts in Mexico, which he then supplied on consignment to distributors in the Kansas City area, usually in kilogram quantities. Beginning in 2007, Dunn sold about eight kilograms of cocaine per month for Corredor, Westbrook about four kilograms of cocaine per month, and Charles about one kilogram per month. Beginning in the summer of 2008, Corredor stored twenty to forty kilograms of cocaine per month at the house of his good friend Moore. Corredor knew Miles because he was “always with [Dunn].” Corredor usually met Dunn at a house in Kansas City near 87th and Kentucky to drop off cocaine or pick up money. On four or five occasions, Miles was the one “receiving the drugs or giving me the money.”

As part of its investigation, the government placed a wiretap on Corredor's phone; it introduced at trial dozens of recorded calls between Corredor and the defendants. Corredor identified each defendant as the speaker on certain calls and testified the calls pertained to cocaine transactions, explaining the use of code words that referred to drugs and nicknames or aliases that referred to defendants. The government also presented testimony by other conspirators. Appellants' challenge to the admission of this testimony is discussed in Part II, infra. We need not describe the testimony in this Part because we conclude that Corredor's testimony combined with the recorded calls and extensive testimony by the investigating agents were sufficient to support the conspiracy convictions of Dunn, Moore, and Charles.

On appeal, Dunn, Moore, and Charles argue that only Corredor's testimony supports their convictions because the government presented no evidence that law enforcement agents directly observed their involvement in drug-related activity. Appellants urge us to consider Corredor's testimony unreliable due to inconsistencies with his pre-trial proffers, contradictions with testimony by other witnesses, Corredor's admission that he had lied to law enforcement in the past, and his incentive to lie created by his hope of a lesser sentence and the government's promise not to seek the death penalty for his involvement in arranging a homicide and an attempted homicide on behalf of his Mexican drug suppliers.

“We have repeatedly upheld jury verdicts based solely on the testimony of co-conspirators and cooperating witnesses, noting that it is within the province of the jury to make credibility assessments and resolve conflicting testimony.” United States v. Coleman, 525 F.3d 665, 666 (8th Cir.), cert. denied,555 U.S. 958, 129 S.Ct. 430, 172 L.Ed.2d 311 (2008). Corredor's testimony supported the jury's findings that Dunn, Moore, and Charles knew of and intentionally joined a conspiracy to distribute cocaine. Inconsistencies and motivations for bias were thoroughly developed on cross-examination and were rejected by the jury. We reject Dunn's contention there was insufficient evidence for the jury to find him responsible for at least 5 kilograms of cocaine and for the district court at sentencing to find him responsible for at least 15 kilograms of cocaine.

Dunn and Moore also challenge the sufficiency of the evidence to convict them of using a communication facility to facilitate cocaine distribution because the only evidence implicating them in drug-related phone calls was Corredor's unreliable testimony. As Corredor's credibility was an issue for the jury, the evidence was also plainly sufficient to support these convictions.

II. Late Disclosure of Government Witnesses and Proffer

A. At a pretrial conference, the court directed that witness lists be submitted by late January 2011. After this deadline, the government disclosed, one week prior to the February trial, six trial witnessesnot on its witness list. Defendants filed motions in limine to exclude these newly disclosed witnesses. The district court excluded two witnesses and then heard argument on the others prior to the start of trial, focusing on witnesses Terrance Harris and Joel Guevara. The government explained that Harris would testify to acquiring cocaine from defendants Dunn and Charles, and Guevara would testify he saw Westbrook bring cash to Charles's house. The court expressed disappointment with the government's unexcused late disclosures but noted defense counsel were provided proffer statements “a week ago” and asked how the defense would be prejudiced. Counsel complained that they had prepared to defend only against Corredor, “who is not the most credible witness.” Defendants declined the court's offer of a continuance to prepare for these newly disclosed witnesses. The court then denied the motion to exclude those witnesses because “in fact, you had enough time.”

On appeal, Dunn, Westbrook, and Charles argue the district court erred in denying their motions in limine to exclude late-disclosed witnesses Harris, Guevara, and Keith Rayford. We review the district court's ruling for abuse of discretion, considering “(1) whether the Government acted in bad faith and the reason(s) for delay ...; (2) whether there is any prejudice to the defendant; and (3) whether any lesser sanction is appropriate to secure future Government compliance.” United States v. Sandoval–Rodriguez, 452 F.3d 984, 989 (8th Cir.) (quotation omitted), cert. denied,549 U.S. 1040, 127 S.Ct. 600, 166 L.Ed.2d 445 (2006). “Even if the government failed to disclose a witness in violation of a discovery order, the defendant still has to show prejudice to his substantial rights.” United States v. Washington, 318 F.3d 845, 857 (8th Cir.), cert. denied,540 U.S. 884, 899, 124 S.Ct. 209, 251, 157 L.Ed.2d 152, 179 (2003). Defendants were provided proffer statements a week before trial and declined the court's offer of a continuance. As in Sandoval–Rodriguez, we conclude the court did not abuse its discretion because defendants made no showing of prejudice “other than the lateness of the disclosure itself.” 452 F.3d at 990.

B. During Guevara's direct examination at trial, Dunn objected when Guevara testified to facts incriminating Dunn that were not disclosed in the proffer statement produced to defense counsel. The ensuing colloquy revealed that the government had inadvertently produced only one of Guevara's two proffer statements. Although neither proffer implicated Dunn as Guevara did at trial (government counsel expressed surprise at that testimony), defendants renewed their objections to Guevara's testimony and moved for a mistrial based on the government's mistake. After lengthy argument, the district court denied these motions, instead giving defense counsel a half-hour recess to confer with their clients and prepare for Guevara's cross-examination.

On appeal, Dunn,...