United States v. Warren

• Decision Date: 05 June 2015
• Docket Number: No. 14–2681.,14–2681.
• Citation: 788 F.3d 805
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Daryl WARREN, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

788 F.3d 805

UNITED STATES of America, Plaintiff–Appellee

v.Daryl WARREN, Defendant–Appellant.

No. 14–2681.

United States Court of Appeals, Eighth Circuit.

Submitted: March 13, 2015.

Filed: June 5, 2015.

Warren Hoff, Law Office of Warren Hoff, St. Louis, MO, argued, for appellant.

Cristian M. Stevens, Asst. U.S. Atty., St. Louis, MO, argued (Richard G. Callahan, U.S. Atty., Allison Hart Behrens, Asst. U.S. Atty., on the brief), for appellee.

Before MURPHY and SHEPHERD, Circuit Judges, and HARPOOL,¹ District Judge.

Opinion

MURPHY, Circuit Judge.

An undercover agent working for the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) recruited Daryl Warren and two other men, Michael Twitty and Robert Washington, to rob a home in St. Louis reportedly being used to store cocaine. After Warren, Twitty, and Washington had agreed to the robbery, they were arrested and charged with various drug and firearm offenses. A jury convicted Warren of conspiring to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846, possessing a firearm in furtherance of a drug trafficking conspiracy, in violation of 18 U.S.C. § 924(c), and being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2). The district court² sentenced Warren to 211 months imprisonment followed by a five year term of supervised release. Warren appeals, raising several arguments related to the investigation, the trial evidence, and his sentence. We affirm.

In 2009 the ATF implemented Operation Gideon, a series of undercover sting operations designed to arrest criminals who were robbing locations where drugs were stored. Rather than planting drugs in such locations with the expectation of making arrests, the ATF developed an alternative technique. Undercover ATF agents would describe a fictitious location to suspects and support plans for gaining access to it. When suspects were later about to carry out such a plan, they were arrested. The ATF used this technique in St. Louis, Missouri from April to June 2013 following increased violence in drug related robberies.

The investigation and arrest of Warren involved two confidential informants and Richard Zayas, an undercover ATF agent. On May 21, 2013 the confidential informants purchased an ounce of cocaine from Warren's cousin, Robert Washington. The informants subsequently introduced Washington to Zayas, who purchased another ounce of cocaine from Washington. During this purchase, Zayas claimed that he was a disgruntled drug courier looking for a crew to help him rob a Mexican drug cartel of large amounts of cocaine. Washington said that he knew people who were “involved in this type of activity” and agreed to organize a meeting with them at a future date.

On June 3, 2013 Washington introduced Zayas to Warren and Michael Twitty in a grocery store parking lot. Zayas told them his cover story: he was a cocaine courier for a group of Mexican drug dealers and was unhappy with the pay he was receiving. He was interested in robbing the Mexican drug dealers to make up for his low pay. Zayas claimed that a few times each month he would receive a call from Mexican dealers informing him that they had some drugs ready for transportation at a particular house. He would have a few minutes to pick up the drugs or they would be moved to a new location. They told him that on entry to the house he would see two Mexican men, one of whom would be carrying a pistol. The other man would go to a back room and retrieve five to six kilograms of cocaine to give to Zayas, then tell him where to make the delivery. Zayas claimed that each time he went to the house, he could see anywhere from 20 to 22 kilograms of cocaine stored in a back room. As Zayas finished telling the story, Warren declared that “they could handle the robbery” and he had “one more guy” who would help out.

The group convened again the next day. On behalf of “his people,” Warren asked Zayas where the house was located, what it looked like, how many guards would be present outside, and whether there would be only one man guarding the cocaine in the back room. After Zayas answered the questions, Warren agreed to use a “trap car” with a secret back seat compartment to transport the cocaine from the house. One of the confidential informants asked whether there would be any problems “unloading” the cocaine, and Warren replied, “nah, nah, man we good.” The group then discussed who would enter the house first and who would follow behind, and everyone agreed to commit the robbery the following afternoon. When asked for his final thoughts on the plan, Warren replied, “I think it's pretty good. It's gonna be like a little shootout though.”

When they gathered on June 5, 2013, Warren told Zayas that a fourth man would meet them at the cocaine house and that he would instruct that man after they arrived. Although Zayas wanted to meet the fourth man before the robbery to ensure he understood the plan, Warren emphasized, “I'm the orchestrator. I'm the orchestrator. [I will tell] him know what to do.” Warren also declared that if anything went wrong at the house, he “didn't need [his] people taking no fall for nothing, if you know what I'm saying.” Zayas then showed Warren, Twitty, and Washington how to operate the hidden compartment of the “trap car.” As he opened the compartment, ATF officers emerged from a nearby parking lot and arrested them. The officers searched Warren's car and found a semiautomatic pistol and an assault rifle, both loaded. Two pairs of gloves, a red bandana, and two knives were found in the glove compartment.

A grand jury returned a five count indictment against Warren, Washington, and Twitty. Warren was charged in three counts for conspiring to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and § 846, possessing a firearm in furtherance of a drug trafficking conspiracy, in violation of 18 U.S.C. § 924(c), and being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2). While Washington and Twitty pled guilty, Warren proceeded to trial. At a pretrial conference, the government moved to introduce Rule 404(b) evidence pertaining to Warren's prior convictions for possession of a controlled substance and felon in possession of a firearm in 2007, drug trafficking and possession of a controlled substance in 2001, and possession of a controlled substance in 1999. The district court granted the motion, concluding that the convictions qualified as “other act” evidence of Warren's guilt under Rule 404(b).

During jury selection the government struck two black jurors, Juror 5 and Juror 21, and Warren challenged the strikes under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In defending the peremptory strikes, the government argued that Juror 5 and Juror 21 were the only members of the panel who had not answered any general questions during voir dire. The district court agreed with the government, finding that both jurors had failed to respond to questions asked by counsel during voir dire and that this silence was a nondiscriminatory reason for the strikes.

While Warren did not testify at trial, Zayas and the two confidential informants testified about his involvement in the conspiracy to rob the home. Over Warren's renewed objections, the government introduced evidence of his prior convictions under Federal Rule of Evidence 404(b). The district court instructed the jury not to consider the evidence as proof of his criminal propensity, but only as proof of his knowledge and intent. It then instructed on Warren's entrapment defense, stating that the “law allows the government to use undercover agents, deception, and other methods to present a person already willing to commit a crime with the opportunity to commit a crime, but the law does not allow the government to persuade an unwilling person to commit a crime.” The jury convicted Warren of all counts.

At sentencing Warren objected to portions of his presentence report, arguing that he was a victim of sentencing entrapment because “no drugs were ever involved in this case” and he did not have the ability to distribute over 15 kilograms of cocaine. The district court overruled the objections, sentencing Warren to 211 months imprisonment followed by a five year term of supervised release. Warren now appeals his conviction and sentence. He contends that the government failed to prove beyond a reasonable doubt that he was not entrapped. He also asserts that the reverse sting operation was outrageous government conduct in violation of the Fifth Amendment and that the trial court erred in admitting evidence of his prior convictions under Rule 404(b), denying his Batson challenges, and incorrectly calculating the amount of cocaine for which he was responsible.

Warren first argues that the government presented insufficient evidence to support the jury's finding that he had not been entrapped. We review de novo the sufficiency of the evidence, resolving conflicts in favor of the government, viewing the evidence in the light most favorable to the government, and accepting all reasonable inferences that support the verdict. See United States v. Martin, 777 F.3d 984, 992 (8th Cir.2015). The entrapment defense “recognizes that law enforcement officers go too far when they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.” United States v. Williams, 720 F.3d 674, 697 (8th Cir.2013). Entrapment has two elements: government inducement and a lack of predisposition on the part of the defendant to engage in the crime. Mathews v. United States, 485 U.S. 58, 62, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988).

Inducement occurs when the government creates a substantial risk that an otherwise law abiding person will commit a criminal offense. United States v. Myers, 575 F.3d 801, 806 (...