United States v. Reed
| Decision Date | 25 August 2020 |
| Docket Number | No. 19-2487,19-2487 |
| Citation | 972 F.3d 946 |
| Parties | UNITED STATES of America, Plaintiff - Appellee v. Cleophus REED, Jr., Defendant - Appellant |
| Court | U.S. Court of Appeals — Eighth Circuit |
Craig Raymond Baune, Assistant U.S. Attorney, Katharine Thornton Buzicky, Assistant U.S. Attorney, David P. Steinkamp, Assistant U.S. Attorney, U.S. Attorney's Office, District of Minnesota, Minneapolis, MN, Lisa D. Kirkpatrick, Assistant U.S. Attorney, U.S. Attorney's Office, Saint Paul, MN, for Plaintiff-Appellee.
Robert August Lengeling, Beito & Lengeling, Minneapolis, MN, for Defendant-Appellant.
Cleophus Reed, Jr., Pekin, IL, Pro Se.
Before KELLY, ERICKSON, and STRAS, Circuit Judges.
KELLY, Circuit Judge Cleophus Reed, Jr., appeals after a jury convicted him on three counts of drug and gun charges. He challenges the sufficiency of the evidence on all counts, the racial composition of the jury venire, and the length of his sentence. Finding no basis for reversal, we affirm the district court's1 judgment.
Sergeant Adam Lepinski of the Minneapolis Police Department began investigating a suspected drug-trafficking organization in the spring of 2017. During this investigation, law enforcement executed a search warrant at a house on Colfax Avenue in Minneapolis. No one appeared to reside at the house, but officers found evidence of drug trafficking: respirator masks, latex gloves, scales, packing material, a blender used to grind and cut heroin with other substances, two hydraulic presses for making bricks of heroin, and 300 grams of heroin inside a large travel mug. Officers also found 839 grams of heroin, 751 grams of crack cocaine, and a 9 mm semi-automatic handgun in the trunk of a car parked in the driveway.
Law enforcement later obtained a warrant to search an apartment on Emerson Avenue in Minneapolis, where they believed Reed lived. No one was home when officers executed the search warrant, but they found evidence that Reed lived there, including photographs of his wife, Vivian; men's clothing; and mail, tax documents, and casino rewards cards bearing his name. Officers also found a handwritten note claiming responsibility for everything in the apartment:
I Cleophus Reed Jr.[date of birth] am responsible forall activities in [street number] emerson Ave N 19To whomever it mayconcern with all knowledgeVivian M. Reed, has know [sic] knowledge of anything.
Officers discovered evidence of drug trafficking at the Emerson apartment: the same brand of respirator masks, hydraulic press, latex gloves, and travel mug as found at the Colfax house. They also found two guns in an unlocked box on the bedroom floor: a Ruger .40 caliber semi-automatic pistol with a scratched-off serial number and a Taurus .22 caliber semi-automatic pistol with a distinctive tip-up barrel.
After searching the Emerson apartment, law enforcement obtained a warrant to collect Reed's DNA. Lepinski went to the apartment to execute this warrant on July 25, 2017. He could hear someone inside, but no one answered the door. Lepinski testified that he believed Reed was inside the apartment based on text messages later recovered from Reed's phone. One message sent from Reed's phone on that date read: Another message sent to Reed's wife read:
The next day, Lepinski stopped Reed while he was driving his van. Lepinski's microphone recorded the traffic stop, and the government played the recording at trial. During the stop, Reed told Lepinski, "Let uh, the bird know ... he'll be decapitated before the Super Bowl." A subsequent search of Reed's van uncovered the same brand of latex gloves found at both the Colfax house and the Emerson apartment. Additionally, text messages on Reed's phone indicated he was involved in drug trafficking. One sender wrote, "I need an oz of fast." Reed replied, "On Rez."
In September 2017, the grand jury returned a six-count indictment charging Reed, David Kline, Timothy Dulaney, and Manley Humphries with drug and firearms offenses. Reed was charged in Count One with conspiracy to distribute heroin, powder cocaine, and crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. He was charged in Count Two with possession with intent to distribute heroin and crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), and 18 U.S.C. § 2. And he was charged in Count Five with possessing firearms as a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Special Agent Bryan Lervoog transported Reed to court to make an initial appearance. Lervoog testified that during the trip, Reed volunteered, without prompting, "The CRI is going to have a bad time."2
Reed was the only co-defendant to proceed to trial. During jury selection, he objected to the racial composition of the jury venire as overwhelmingly white. Reed argued the venire did not represent a fair cross-section of the community. The district court provisionally overruled the objection after finding no evidence to establish that the venire was unrepresentative of the community, or that any under-representation was due to a systematic exclusion of any group from the jury pool.
At trial, the government alleged Reed conspired with his co-defendants and others to distribute heroin and cocaine from the Colfax house. The government contended that Dulaney rented the Colfax house and allowed Kline to use it as a stash house. Reed's alleged role in the conspiracy was to prepare heroin for distribution by cutting it with other substances and pressing it into blocks. He also cooked powder cocaine into crack cocaine and would occasionally sell the drugs. The government alleged that while Reed prepared the drugs, he wore a respirator mask and latex gloves to protect himself. A forensic analyst from the Minnesota Bureau of Criminal Apprehension testified that one of the respirator masks from the Colfax house tested positive for Reed's DNA.
Several of Reed's alleged co-conspirators testified for the government at trial. Jevone Gentle acknowledged that he sought "a break on his sentence" by testifying. He implicated Reed in the conspiracy, explaining that Reed would bring heroin and cocaine to the Colfax house and would "cook" the drugs while using the hydraulic presses and respirator masks. Gentle saw Reed put drugs in the trunk of the car parked in the driveway. He also saw Reed with guns on numerous occasions but was unable to provide specific dates.
Dulaney also testified. He had pleaded guilty to the drug-trafficking conspiracy and acknowledged that he also was testifying in hopes of receiving a reduced sentence. He explained that Reed's role was to prepare the drugs and to sometimes sell them. Dulaney said Reed had access to the drugs stored in the car parked at the Colfax house. He also testified that Reed possessed firearms. Kenneth Mack, a cooperating witness, told the jury that he too agreed to testify "[w]ith the hope that [he] will get reduction in his sentence." According to Mack, Reed worked with Kline to produce and sell drugs.
Vivian Reed testified for the defense. She explained that Reed did not have access to the Emerson apartment when the police searched it. She believed law enforcement planted the guns in the apartment. On cross-examination, the government elicited testimony from Vivian about a previous search warrant executed at a home she shared with Reed in 2012, where the police recovered crack cocaine. The government argued this provided context for the handwritten note found at the Emerson apartment: she had been drawn into Reed's illegal activities before, so he wrote the note to prevent the same from happening again.
Reed also testified. He denied being involved in the charged conspiracy and challenged the government's evidence against him. Reed explained that he worked with Kline's mother and, as part of his work, used a respirator mask while cleaning. He suggested this was how a respirator mask with his DNA turned up at the Colfax house. He denied any knowledge of the guns found at the Emerson apartment.
After a three-day trial, the jury convicted Reed on all three counts. Reed then moved for a new trial under Federal Rule of Criminal Procedure 33, based on the racial composition of the jury venire. The district court denied the motion. At sentencing, the court calculated an offense level of 34 and a criminal history category V, resulting in a Guidelines range of 235 to 293 months in prison. Reed objected to how the Guidelines' drug conversion tables treat crack cocaine significantly more harshly than powder cocaine, and urged the district court to disregard the Guidelines for this reason. The court acknowledged its authority to disagree with the Guidelines for policy reasons but declined to do so. The court imposed a 240-month sentence on Counts One and Two and a concurrent 120-month sentence on Count Five. Reed timely appealed.
Reed first challenges the sufficiency of the evidence against him on all three counts. He argues the three cooperating witnesses only testified against him to receive reduced sentences in their own criminal cases. He notes that Gentle was unable to provide much detail about when Reed participated in the drug conspiracy or possessed firearms. He also points out that Lepinski testified that he never saw Reed with his co-defendants or at any of the properties Lepinski surveilled.
We review the sufficiency of the evidence de novo, evaluating the evidence in the light most favorable to the verdict and drawing all reasonable inferences in its favor. United States v. Parker, 871 F.3d 590, 600 (8th Cir. 2017). We will reverse only if no reasonable jury could have found the defendant guilty beyond a reasonable doubt. United States v. Ways, 832 F.3d 887, 894 (8th Cir. 2016).
To prove Reed guilty of Count One, the government had to establish that: (1) two or more people reached an...
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