United States v. Thompson

• Decision Date: 06 September 2012
• Docket Number: No. 11–3429.,11–3429.
• Citation: 686 F.3d 575
• Parties: UNITED STATES of America, Appellee, v. Sabranino Altranino THOMPSON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

686 F.3d 575

UNITED STATES of America, Appellee,
v.
Sabranino Altranino THOMPSON, Appellant.

No. 11–3429.

United States Court of Appeals,
Eighth Circuit.

Submitted: May 16, 2012.
Filed: July 25, 2012.
Rehearing and Rehearing En Banc Denied Sept. 6, 2012.

[686 F.3d 577]

David Nadler, argued and on the brief, Cedar Rapids, IA, for appellant.

Dan Chatham, USA, argued and on the brief, Cedar Rapids, IA, for appellee.

Before RILEY, Chief Judge, MELLOY and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

After a jury trial, Sabranino Thompson was convicted on two counts of distribution of cocaine base, one count of possession of cocaine base with intent to distribute, and one count of possession of marijuana with intent to distribute, all in violation of 21 U.S.C. § 841. The district court ¹ sentenced Thompson to 300 months' imprisonment. Thompson appeals his convictions, challenging a jury instruction regarding “intent to distribute,” the admission into evidence of a wage record from the Iowa Workforce Development Agency, and the sufficiency of the evidence. We affirm.

I. BACKGROUND

The evidence at trial was as follows. Officers with the Cedar Rapids Police Department (“CRPD”) encountered Thompson on June 24, 2010 during a traffic stop that resulted in the temporary impoundment of Thompson's vehicle, a Cadillac. At that time, Thompson provided the officers with his address and phone number. Later that day, a man who had previously worked with the CRPD as a paid informant and “controlled buy” purchaser approached CRPD officers, proposed making a controlled buy of illegal drugs from Thompson, and provided the officers with the same phone number and address that Thompson had given officers previously that day. The informant called Thompson to arrange a drug purchase, and the jury heard a recording of that phone call. During the call, the informant asked to purchase an “eight ball,” which amounts to approximately 3.5 grams of cocaine, and indicated that he would pay $150. Thompson agreed to meet the informant.

Later that day, officers searched the informant to ensure he did not have any drugs in his possession, gave him $150, transported him to the address Thompson had given them, and observed the informant enter and remain inside for approximately one minute. The informant testified that while inside the apartment he gave Thompson the $150 and that Thompson gave him a baggie containing crack cocaine. The jury also watched video surreptitiously taken by the informant while

[686 F.3d 578]

inside the apartment. Upon leaving the apartment, the informant returned to the officers and gave them a baggie containing a hard, off-white substance. A lab technician subsequently analyzed the substance and testified that it amounted to 1.04 grams of cocaine base.

CRPD officers conducted a second controlled buy the next day using the same procedures and the same informant. The jury heard another recorded phone call in which the informant arranged to meet Thompson. The jury watched video of the informant meeting Thompson outside the same address and heard the two of them refer to the $150 purchase the previous day. This time, Thompson entered the apartment alone and returned shortly thereafter. The video shows Thompson and the informant make a hand-to-hand transaction outside the apartment in which money can be seen changing hands. The informant testified that he again gave Thompson $150 in exchange for a baggie containing crack cocaine. The informant returned to the officers and gave them the baggie he obtained from Thompson. The lab technician testified that this baggie contained 0.99 grams of cocaine base.

Based on the two controlled buys, CRPD officers obtained a search warrant for the apartment where the two transactions occurred. The officers executed the warrant on July 2 and found cocaine residue on the kitchen counter and on a digital scale. They also found sandwich baggies. A narcotics officer testified that the digital scale and sandwich baggies were indicative of drug distribution. After searching the apartment, the officers searched the vicinity for Thompson's Cadillac and found it in the parking lot of a nearby building. After the June 24 traffic stop, the Cadillac had been registered in Thompson's name at an address in that building. The officers knocked on the door at that new address, and it was answered by Eleighcia Easter, Thompson's then-girlfriend. The officers noted an odor of burnt marijuana and asked whether Thompson was there. Easter confirmed that Thompson was there and allowed the officers to enter her apartment.

As the officers entered the apartment, they observed Thompson emerge from a bedroom and arrested him on a warrant stemming from the controlled buys. They found $740 in cash in Thompson's pocket. After Easter consented to a search of her apartment, the officers found marijuana in an ashtray in the living room and 33.04 grams of cocaine base in a cigar box on a nearby desk. They also found a black plastic bag containing several small zip-top bags on the floor by the desk. While searching the bedroom from which Thompson had emerged just before his arrest, the officers found 153 small zip-top bags containing marijuana inside a Timberland bag. Investigators matched a fingerprint on the Timberland bag to Thompson.

At trial, the Government introduced evidence that Thompson previously had been convicted of felony drug distribution, as well as the above-mentioned evidence regarding the two controlled buys and the evidence obtained during the two apartment searches on July 2. Furthermore, Easter testified that she spent several hours per day with Thompson nearly every day in May and June 2010, that they frequently smoked marijuana together, and that Thompson always provided the marijuana, typically in small zip-top bags. She testified that Thompson was the only person who brought marijuana into her apartment between May and early July 2010. She also testified that the marijuana located in the Timberland bag and the crack cocaine did not belong to her. Although she had a roommate whose possessions were stored in a second bedroom and who

[686 F.3d 579]

had a key to the apartment, Easter testified that her roommate never stayed the night, had only been in the apartment two to three times per month, and did not have a key to enter the building. She also testified that Thompson received frequent phone calls and sometimes would leave her apartment to buy cigars at a nearby gas station but would return thirty minutes later without any cigars.

The Government also introduced evidence of Thompson's unexplained wealth. Easter testified that she never saw Thompson go to work or heard him talk about having a job, except that he occasionally braided hair, receiving up to $20 per occasion. Although she believed that Thompson did not have a regular job, she testified that she routinely saw him carrying a fair amount of cash, generally between $100 and $500. The Government introduced a motor vehicle purchase agreement dated May 13, 2010 showing that Thompson paid $4,600 in cash for his Cadillac. The Government also introduced a record from the Iowa Workforce Development Agency (“IWDA”) ² showing no reported wages for Thompson's social security number during 2009 and 2010.

The jury returned unanimous verdicts of guilty on Counts I and II, the distribution counts based on the controlled buys on June 24 and 25, and on Counts III and IV, the possession with intent to distribute counts based on the cocaine and marijuana seized from Easter's apartment on July 2. The jury, however, returned a unanimous verdict of not guilty on Count V, which related to a subsequent arrest in November 2010 for possession with intent to distribute of 6.4 grams of cocaine base that officers found in between the cushions of a couch in close proximity to Thompson. Thompson appeals his conviction on each of Counts I through IV.

II. DISCUSSIONA. Jury Instruction

Thompson contends that the district court erroneously instructed the jury with respect to inferring an intent to distribute. “We review a district court's jury instructions for abuse of discretion and ‘[w]e will reverse a jury verdict when the errors misled the jury or had a probable effect on the jury's verdict.’ ” United States v. Slagg, 651 F.3d 832, 848 (8th Cir.2011) (alteration in original) (internal citation omitted) (quoting United States v. Faulkner, 636 F.3d 1009, 1019–20 (8th Cir.2011)). In contrast, we will affirm “if the entire charge to the jury, when read as a whole, fairly and adequately contains the law applicable to the case.” United States v. Wisecarver, 644 F.3d 764, 772 (8th Cir.) (quoting United States v. Webster, 442 F.3d 1065, 1067 (8th Cir.2006)), cert. denied,565 U.S. ––––, 132 S.Ct. 533, 181 L.Ed.2d 374 (2011).

The district court instructed the jury that “[p]ossession of a large quantity of cocaine base, marijuana, paraphernalia used to aid in the distribution of drugs, or large sums of unexplained cash can support an inference of an intent to distribute.” Thompson contends that the instruction misstated the holding of United States v. Shurn, 849 F.2d 1090 (8th Cir.1988), “by leaving out two factors: ‘[the] high purity level [of the drugs]’ and ‘the presence of firearms.’ ” However, Shurn squarely held that the district court in that case did not err in instructing the jury that it could infer an intent to distribute merely from the possession of a large

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quantity of a controlled substance. Id. at 1095. In affirming the sufficiency of the evidence supporting the verdict, we indeed noted that “the intent to distribute ... 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 the distribution of drugs, large sums of unexplained cash, and the presence of firearms.” Shurn, 849 F.2d at 1093 (emphases added). Contrary to Thompson's contention, Shurn...