US v. Fenner

• Decision Date: 30 March 2010
• Docket Number: No. 08-3953,08-3955.,08-3953
• Citation: 600 F.3d 1014
• Parties: UNITED STATES of America, Appellee, v. Kevin Joseph FENNER, Appellant. United States of America, Appellee, v. Eric Dion Davis, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

600 F.3d 1014

UNITED STATES of America, Appellee,
v.
Kevin Joseph FENNER, Appellant.

[600 F.3d 1015]

United States of America, Appellee,
v.
Eric Dion Davis, Appellant

Nos. 08-3953, 08-3955.

United States Court of Appeals, Eighth Circuit.

Submitted: October 21, 2009.

Filed: March 30, 2010.

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William M. Orth, argued, Minneapolis, MN, for appellant Fenner.

Stephen W. Walburg, argued, Shakopee, MN, for Davis.

David Gerald Wilhelm, AUSA, argued, Jeffrey S. Paulsen, AUSA, on the brief, Minneapolis, MN, for appellee.

Before MELLOY, SMITH, and SHEPHERD, Circuit Judges.

MELLOY, Circuit Judge.

A jury convicted Kevin Fenner and Eric Davis of conspiring to distribute fentanyl and more than fifty grams of cocaine base in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). The jury also convicted them of various distribution and possession-with-intent-to-distribute charges stemming from the conspiracy. Fenner and Davis assert that prosecutorial misconduct occurred before the grand jury. Fenner also argues that cumulative prosecutorial misconduct before the petit jury deprived him of a fair trial and that, absent prejudice stemming from this misconduct, insufficient evidence existed to convict him of the crack cocaine-related charges. Additionally, Fenner and Davis present constitutional challenges to the mandatory minimum sentences in § 841(b)(1)(A). Finally, Davis, a convicted sex offender, maintains that the district court¹ erred in imposing sex-offender and/or mental-health treatment as a special condition of supervised release. For the following reasons, we affirm.

I. Background

"We present the facts in the light most favorable to the jury's verdict." United States v. Foxx, 544 F.3d 943, 946 (8th Cir.2008). In 2006, Fenner and Davis, along with Eric Hargrove, were involved in a drug trafficking operation in the Twin

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Cities. Hargrove is Fenner's cousin and pleaded guilty to charges related to his involvement in the events described below

A. The investigation

Hargrove, Fenner, and Davis were arrested following an investigation that included four controlled buys involving two confidential informants. Prior to the first controlled buy, one of the informants discussed buying crack cocaine with Davis, whom he knew as "Smurf." Davis confirmed he would be able to sell the informant the drug. The informant provided this information to the police, who asked the informant to make a controlled purchase. The informant later met Fenner, whom he knew as "Nitty," and Fenner supplied the telephone number the informant used to set up the deal.

The first buy, for crack cocaine, occurred on May 11, 2006. The informant attempted to set up the purchase over the phone beginning the previous day, but it was delayed due to difficulties Fenner and Davis had cooking the powder cocaine into crack cocaine. Fenner and Davis both spoke with the informant at different times leading up to the buy. Their conversations were recorded. In the first conversation between Fenner and the informant, Fenner explained he could not cook the powder cocaine into crack cocaine himself because he was subject to random urinalysis. Davis answered the phone on other calls. On one, in which the informant testified he ordered crack cocaine, Davis confirmed he was with Fenner. Later, Davis said they were almost ready and would call the informant as soon as he finished and weighed the drug. In a subsequent call, Fenner said that he planned to cook the crack cocaine himself. Fenner eventually set up a meeting spot and the appellants arrived together in Fenner's car. Davis entered the informant's car while Fenner waited on the street, talking with an individual in a third vehicle while Davis completed the deal. The informant wore a wire to the meeting, and the wire picked up Davis describing problems in cooking powder cocaine into crack cocaine. The informant received more than sixty grams of crack cocaine from Davis.

The second buy, for fentanyl,² occurred on June 21, 2006. The same confidential informant testified that he originally tried to buy both crack and heroin, but Fenner only had heroin (actually fentanyl) available After a series of recorded calls between Fenner and the informant, they negotiated in person and eventually closed a deal for approximately eight grams of heroin (fentanyl).³

The third buy, also for fentanyl, occurred the next day, June 22, 2006. A second confidential informant⁴ and Davis set up the deal in recorded phone calls. Davis sent Hargrove to complete the transaction. Hargrove met with the informant to sell nearly six grams of fentanyl.

The fourth buy was scheduled to occur on June 23, 2006. In recorded phone calls, Davis and the second informant set up a deal for crack cocaine and heroin (fentanyl).

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Davis and Hargrove arrived at the informant's residence, and the informant met with them in their car. The informant signaled to officers, who moved in to arrest Davis and Hargrove. The officers recovered nearly six grams of fentanyl and approximately 120 grams of crack cocaine from Hargrove

Officers arrested Fenner shortly after the arrests of Hargrove and Davis. Fenner told officers that he had cocaine in his underwear, and police recovered a hard, rocky substance physically resembling crack cocaine. The substance field tested positive for cocaine.⁵ Subsequent testing later revealed the substance was powder cocaine, notwithstanding its rock-like appearance.

After the arrests, officers executed a search warrant for Fenner's residence, which he shared with his father and Hargrove. In Fenner's bedroom, officers recovered a loaded gun hidden under a mattress and $7,000 in cash from a safe, which included $900 from the second controlled buy of fentanyl. Officers also discovered a digital gram scale in the kitchen. In Hargrove's bedroom, officers found approximately 28.5 grams of crack cocaine, approximately thirty-three grams of fentanyl, and approximately $3,500.

B. Grand jury indictment, trial, and sentencing

On July 13, 2006, a grand jury returned a multi-count indictment against Fenner, Davis, and Hargrove. Count 1 charged all three defendants with conspiracy to distribute fentanyl and more than fifty grams of crack between May 11 and June 23, 2006, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). The other counts charged various distribution and possession-with-intent-to-distribute offenses based on the events described above. Those involving crack cocaine are the most relevant to this appeal. Count 2 charged Fenner and Davis with aiding and abetting each other in the distribution of crack during the first controlled buy on May 11, 2006. Count 5 charged Davis (and Hargrove) with aiding and abetting each other in possession with the intent to distribute crack cocaine on June 23, 2006, the day of their arrest. Count 7 originally charged Fenner with possession with intent to distribute crack cocaine on June 23. As noted above, subsequent lab tests, reported August 9, 2006, revealed this to be powder cocaine and the indictment was amended to read as such.

For Fenner, the crack cocaine-related charges were the most serious. He had five prior felony drug convictions, triggering the statutory mandatory minimum of life imprisonment for an offense involving fifty or more grams of crack cocaine. 21 U.S.C. § 841(b)(1)(A)(iii). The Government filed a motion of sentencing enhancement under 21 U.S.C. § 851 based on the prior felony drug convictions. Fenner then participated in a proffer session with a written agreement that his statements could not be used against him at trial unless he took the stand and contradicted his proffer statements. Fenner eventually declined to cooperate and the plea deal fell through.

The case proceeded to a three-day jury trial in January 2007. During direct examinations of the informants, the jury heard the recorded phone calls arranging the controlled buys, as well audio picked up by the informants' wires during the buys themselves. The jury was permitted to follow along with transcripts while listening to these recordings and during the informants' testimony about the conversations. The informants also explained slang terms used by the participants as well as

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their understandings of the various conversations and transactions. The jury also saw separate law enforcement surveillance video for all but the last controlled buy, which resulted in the arrest of Davis and Hargrove

The Government sought to establish the existence and nature of the overall conspiracy through, among other things, Hargrove's testimony. According to Hargrove, he and Fenner started selling crack cocaine, powder cocaine, and heroin after Hargrove moved to Minnesota in November 2005. They eventually began selling as partners, each taking orders and splitting up the proceeds. They kept the money in a safe in Fenner's room. Fenner had between ten to twenty customers all together, with approximately an equal number of crack and powder cocaine customers. Around January 2006, Davis joined their enterprise. After Davis joined the group, they continued to sell crack cocaine and heroin and share the profits. Fenner would obtain the drugs, and they would store some of the drugs at Fenner's and Hargrove's residence prior to sale. Hargrove described his participation in the various controlled buys and confirmed that Davis set up the June 22 and June 23 deals. Hargrove also testified that Fenner provided the crack cocaine and heroin (fentanyl) found in Hargrove's bedroom during the June 23 search.

Both Fenner and Davis testified. Fenner's defense was designed to avoid a life sentence. He testified that he had pleaded guilty to prior drug offenses and admitted that he distributed fentanyl during the second controlled buy on June 21 and that he possessed powder cocaine with the intent to distribute on the...