US v. Bass

• Decision Date: 11 August 1997
• Docket Number: 96-2879.,No. 96-2325,96-2325
• Citation: 121 F.3d 1218
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Herbert Lee BASS, Jr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Todd WAKEFIELD, also known as T-Dub, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

121 F.3d 1218

UNITED STATES of America, Plaintiff-Appellee, v. Herbert Lee BASS, Jr., Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Todd WAKEFIELD, also known as T-Dub, Defendant-Appellant.

Nos. 96-2325, 96-2879.

United States Court of Appeals, Eighth Circuit.

Submitted March 12, 1997.

Decided August 11, 1997.

Ernest H. Anderson, argued, for Defendant-Appellant Herbert Lee Bass, Jr.

Michael F. Gutowski, Omaha, NE, argued, for Defendant-Appellant Todd Wakefield.

Michael G. Heavican, Omaha, NE, argued, for Plaintiff-Appellee.

Before McMILLIAN, FLOYD R. GIBSON, and JOHN R. GIBSON, Circuit Judges.

FLOYD R. GIBSON, Circuit Judge.

Herbert Lee Bass and Todd Wakefield were adjudicated guilty of violating 21 U.S.C. §§ 841(a)(1), 846 (1994), by conspiring to distribute and possess with intent to distribute at least fifty grams of crack cocaine. In these appeals, Bass challenges numerous aspects of his conviction and sentence. Wakefield, on the other hand, raises a single argument that the district court abused its discretion by imposing special conditions of supervised release which absolutely prohibit him from obtaining or consuming alcohol, subject him to testing to detect the presence of alcohol in his body, and require him to submit to warrantless searches for alcohol. We affirm Bass's conviction and sentence in all respects, but we vacate portions of Wakefield's sentence and remand for proceedings consistent with this opinion.

I. BACKGROUND

On June 14, 1995, a federal grand jury returned a one count indictment charging Bass and Wakefield with conspiring to distribute and possess with intent to distribute crack cocaine, a violation of 21 U.S.C. §§ 841(a)(1), 846. Both men initially entered pleas of not guilty, but Wakefield subsequently changed his plea to guilty pursuant to an agreement he reached with the Government. Bass proceeded to trial, and after four days of testimony a jury convicted him of the drug distribution crime. The district court sentenced Bass to 188 months (fifteen years, eight months) imprisonment, while Wakefield received a period of confinement to span 135 months (eleven years, three months). Upon release from prison, each will serve an additional five years on supervised release.

At the present time, Bass contends that the Government did not introduce sufficient evidence to sustain his conviction. He also complains about certain evidentiary rulings, claiming that the district court abused its discretion when it (1) permitted the Government to implicate Bass in what he contends were other criminal schemes, and (2) exposed the jury to inadmissible hearsay by allowing a prosecution witness to testify about out of court statements made by one of Bass's alleged coconspirators. In challenging his sentence, Bass asserts that the district court committed error when it refused his request for a downward departure to help ameliorate the 100-to-1 ratio between penalties for crack and powder cocaine. Finally, Wakefield maintains that the district court wrongfully levied special conditions of supervised release which are crafted to ensure that he totally abstains from alcohol usage. We address these allegations seriatim.

II. DISCUSSION

A. Bass

Bass assails his conviction and sentence on a number of grounds, but we need not tarry long on any of his contentions. For none of Bass's arguments has more than a mere modicum of merit.

1. Sufficiency of the evidence

Bass propounds that the Government did not present sufficient evidence to support his conviction. "In reviewing the sufficiency of the evidence to support a guilty verdict, we look at the evidence in the light most favorable to the verdict and accept as established all reasonable inferences supporting the verdict." United States v. Black Cloud, 101 F.3d 1258, 1263 (8th Cir.1996). From this perspective, we must consider whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). An affirmative answer to this inquiry precludes reversal of the conviction.

To prevail in a conspiracy trial, the Government must prove "that there was an agreement to achieve some illegal purpose, that the defendant knew of the agreement, and that the defendant knowingly became a part of the conspiracy." United States v. Ivey, 915 F.2d 380, 384 (8th Cir.1990) (citation omitted). The agreement which lies at the heart of any conspiracy case need not, of course, be expressly stated. Instead, the Government must "only establish a tacit understanding between the parties, and this may be shown wholly through the circumstantial evidence of the defendant's actions." United States v. Fregoso, 60 F.3d 1314, 1325 (8th Cir.1995). "Once a conspiracy is established, even slight evidence connecting a defendant to the conspiracy may be sufficient to prove the defendant's involvement." Ivey, 915 F.2d at 384.

Having reviewed the record and read the entire trial transcript, we conclude that the Government introduced ample, if not abundant, evidence of Bass's guilt. Five of Bass's coconspirators testified against him. Two of these individuals, Santanus Chambers and Terry Glen Ford, confirmed that they sold to Bass large quantities of cocaine over an extended period of time. Two street level dealers,¹ Antonio Nelson and Dale Giles, verified that they regularly purchased from Bass crack cocaine for further distribution. In addition, during trial the Government played a number of recorded phone conversations between Ford and Bass, and Ford deciphered for the jury the "code" the men used in an attempt to surreptitiously discuss their drug transactions.

There can be no question that this and other evidence provided an adequate foundation to sustain the jury's finding of guilt. Bass's protestations to the contrary consist predominately of attacks on the credibility of his former compatriots who testified at trial, each of whom had reached a plea agreement with the Government. While information such as this is "highly relevant in assessing the credibility of the witnesses," United States v. Cabrera, 116 F.3d 1243, 1245 (8th Cir.1997), evaluating the comparative trustworthiness of testimony is an endeavor for the jury, and not us, to undertake, see United States v. Wright, 119 F.3d 630, 634 (8th Cir.1997)("It is the sole province of the jury to weigh the credibility of a witness." (quotation omitted)). Bass's able trial attorney seized upon every available opportunity to point out to the jury that individual prosecution witnesses might have harbored a self-interested motivation to bolster the Government's case. That the jury rejected defense counsel's overtures, choosing rather to credit the disputed testimony, is not for us to review.

Bass also emphasizes that he was gainfully employed during the time of the conspiracy and that police officers did not confiscate any drugs or large sums of money from his person or belongings. Nonetheless, though lack of employment and the presence of drugs or large amounts of cash often serve to strengthen an inference that a defendant was dealing in contraband, the absence of any one, or all, of these factors in a given trial does not by any means necessitate an acquittal. Stated simply, the fact that the case against Bass might have been more ironclad does nothing to diminish the evidence which the Government did, in fact, introduce. Bass no doubt would have benefitted had the jury deemed the Government's case irreparably suspect due to a dearth of circumstantial evidence connecting him to drug transactions, but the jury's failure to live up to Bass's wishful thinking does not represent a constitutional violation. See Wright, 119 F.3d at 634 (mentioning that conviction only upon proof beyond a reasonable doubt is required by the Due Process Clause of the Constitution).

In the final analysis, Bass's multifaceted criticism of the case against him must succumb to the fact that the quantum of evidence introduced at trial, though perhaps not of the highest caliber, was more than sufficient to allow the jury to return a guilty verdict. We cannot say "that a reasonable fact-finder must have entertained a reasonable doubt about the government's proof of one of the offense's essential elements," Ivey, 915 F.2d at 383, and we must therefore affirm his conviction.

2. "Other crimes" evidence

Bass asserts that the district court abused its discretion when it allowed the Government to elicit testimony from Santanus Chambers concerning certain narcotics transactions Bass had entered into with him. In a related vein, Bass insists that the court committed error when it permitted the introduction of a recorded telephone conversation in which he discussed a drug deal with Ford. According to Bass, the admission of this evidence ran afoul of Rule 404(b) of the Federal Rules of Evidence, because through its introduction the prosecution intended to demonstrate that he had committed other crimes and was thus prone to engage in the criminal offense contained in the indictment.

Were Bass's characterization of the matter correct, this ground for reversal would, if nothing else, give us pause. It is axiomatic that "Rule 404(b) excludes evidence of other crimes or bad acts when offered to prove character in order to show action in conformity therewith." United States v. Falls, 117 F.3d 1075, 1077 (8th Cir.1997); see also Fed.R.Evid. 404(b). This type of evidence is, however, "admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Fed.R.Evid. 404(b). Even then, the district court should approve introduction of a defendant's other crimes or bad acts only if (1) the evidence is relevant to a material issue, (2) the other crime or bad act is reasonably similar in kind and close in time to the crime charged, (3) the...