United States of America, Appellee, v. Keith Maynie, Jr., Appellant. United States of America, Appellee, v. Dietrick Lavon Banks, Appellant. United States of America, Appellee, v. Lenora Logan, Appellant.
Nos. 00-1264, 00-1269, 00-1271
United States Court of Appeals for the Eighth Circuit
July 30, 2001
Appeals from the United States District Court for the Southern District of Iowa. Submitted: November 30, 2000. Filed: July 30, 2001.
Before HANSEN, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
Defendants Keith Maynie, Dietrick Banks, and Lenora Logan were each convicted of conspiracy to distribute and possess with the intent to distribute cocaine base, in violation of
I. Background
Stuart Stewart, Dietrick Banks, and Lenora Logan decided that Davenport, Iowa, would be a promising market in which to sell crack cocaine. Both Stewart and Dietrick Banks resided in Harvey, Illinois. Logan informed the two that she had several family members in Davenport who could be enlisted to help the trio break into the local drug market. The three made their first trip to Davenport for purposes of selling crack cocaine in December 1997, bringing with them a total of two ounces of the drug. After a few days, Logan arranged for the three to stay at Rosie Butler‘s apartment on State Street, which became the group‘s initial venue for selling crack cocaine. Logan and Butler are cousins.
The group was successful in selling crack cocaine out of Ms. Butler‘s apartment, and Banks and Stewart made several return trips to Harvey to replenish their inventory of crack cocaine. On their third trip in late December 1997, Tyrone Banks, Dietrick Banks’ cousin, returned to assist with the drug-sales operation in Davenport. At some point, a decision was made that more money could be made if the group expanded its operation by selling drugs at an apartment building on Harrison Street. Logan‘s brother, Edward Green (E.G.) Harrison, who resided at the Harrison Street apartment, spearheaded the sale of crack cocaine (and later the conversion of cocaine powder into crack cocaine) at the Harrison Street building.
In March 1998, a dispute arose between Dietrick Banks and Stewart over who was entitled to certain proceeds from the drug sales. Stewart left Davenport and returned to Harvey, taking with him $10,000. Dietrick Banks believed that at least part of the $10,000 belonged to him. Sometime later in Harvey, a car driven by Maynie pulled alongside Stewart‘s automobile, and Dietrick Banks began firing at Stewart from the rear seat of Maynie‘s vehicle. At least one round struck Stewart‘s car, but he was not injured in the incident.
Maynie, who was also a Harvey native, joined Dietrick Banks in Davenport sometime after Stewart‘s departure from the operation. Around the same time, the Quad-City Metropolitan Enforcement Group (“MEG“) initiated a series of controlled buys of crack cocaine from various individuals at the Harrison Street building. MEG officers purchased crack cocaine on seven occasions from March 5 through June 9, and the investigation culminated in a raid of the building on June 10, 1998. Officers seized cash, crack cocaine, scales, drug notes and various other drug paraphernalia. Maynie was present at the time of the raid, but the officers found no drugs or money on him.
Following the raid, E.G. Harrison and others who resided at the Harrison Street building were evicted, and they moved to another Davenport apartment building at 620 Perry Street where they resumed trafficking crack cocaine. The Perry Street building was eventually raided on July 14, 1998, and E.G. Harrison and three females, including Ms. Butler, were arrested for selling crack cocaine. Maynie was not present at the time of the raid, but officers seized a keyless remote to Maynie‘s vehicle, and found his vehicle parked outside the building at the time of the raid. According to those involved in the distribution, Dietrick Banks, Tyrone Banks, and Maynie supplied the cocaine sold at the Harrison Street and Perry Street apartments.
Dietrick Banks and Maynie were initially charged in an indictment in August 1998 with conspiracy to distribute crack cocaine. The government filed a superceding
On appeal, defendants raise a number of independent and interrelated arguments. Maynie argues his conviction should be set aside because the government violated the Speedy Trial Act, the district court should have transferred his trial, the district court erred in admitting Stewart‘s testimony concerning the shooting incident in Harvey, and the evidence was insufficient to support his conviction. Dietrick Banks joins Maynie‘s
II. Pretrial Matters
A. Speedy Trial Act
Maynie claims on appeal that his rights under the Speedy Trial Act,
Maynie was originally scheduled to be tried in November 1998 but his attorney filed a motion for a competency evaluation and a motion to withdraw. The district court continued the trial, ordered the medical examination, and permitted Maynie‘s attorney to withdraw. The evaluation was completed in December 1998. Maynie was determined competent to stand trial, and the district court, through a series of four
The district court addressed the numerous delays and the Speedy Trial Act issues in a hearing on the first day of trial. Both Maynie and his first attorney presented testimony. Maynie complained that he had not approved his attorney‘s request for a continuance and competency evaluation, and that the trial delay prejudiced him because the government secured additional witnesses who would not have testified had the trial been conducted in November 1998. The district court ruled that the delay was caused by Maynie‘s numerous motions (which the court found were filed with Maynie‘s consent and approval) and that the time was excluded under the Speedy Trial Act.
We agree that Maynie‘s speedy trial rights were not violated. As the district court noted, the continuances were precipitated primarily by Maynie‘s disruptive conduct and his inability to sustain representation. Maynie‘s first attorney indicated during testimony that he felt a competency exam was required based on his observations of Maynie‘s conduct in jail. The attorney testified that Maynie smeared his own feces on jail walls and appeared unable to comprehend and defend against the charges against him. As for his allegation that he was unaware of the motion for the competency evaluation, Maynie suggests no authority in support of his assertion that the time to conduct the evaluation should be charged against the government if his counsel acted without his approval in seeking the evaluation. Even if that were the case, we conclude the district court‘s finding that Maynie approved of his counsel‘s actions was not clearly erroneous. See United States v. Van Someren, 118 F.3d 1214, 1216 (8th Cir. 1997) (“In the context of the Speedy Trial Act, we review the district court‘s findings of fact for clear error . . . .“). The district court thus properly excluded the time necessary to conduct the competency examination. See
The additional delay caused by Maynie‘s numerous other motions to continue was also properly excluded. Maynie initially signed a plea agreement in October 1998, leaving the government and the district court with the impression that there would be no trial. During his April 1999 change of plea hearing, however, Maynie informed the court that he was not going to plead guilty and that he wanted new counsel. Trial delay caused by a defendant‘s vacillation after informing the government or the court that he would plead guilty is properly charged to the defendant and excluded from the 70-day period. See United States v. Mentz, 840 F.2d 315, 330 (6th Cir. 1988). The remaining delay from April until the time of trial was properly excluded as time necessary to appoint Maynie‘s third counsel and to permit his counsel to prepare for trial. See
As for Maynie‘s argument that the district court erred in proceeding to trial on the same day he was arraigned on the superceding indictment, our circuit rejects the proposition that
The district court did not abuse its discretion in proceeding to trial immediately following the arraignment. Neither Maynie nor his counsel complained prior to trial, nor do they now, that the last minute arraignment prejudiced Maynie‘s defense in any manner. In fact, the district court offered to continue the trial after finding out that Maynie had not been arraigned, but Maynie informed the court that he wanted to withdraw his motion to continue the trial and proceed to trial because he disliked the jail at which the United States Marshal had arranged for him to be held. Furthermore, the record establishes that Maynie‘s counsel was adequately prepared for trial, and the district court offered to accommodate Maynie‘s counsel in the event he later determined he was unprepared for one of the government‘s witnesses. There is no indication any such accommodations were needed.
B. Motion to Transfer
Maynie also challenges the district court‘s denial of his motion pursuant to
III. Evidentiary Ruling
Maynie and Banks attempted both prior to and during their trial to prohibit the government from offering Stewart‘s testimony concerning the Harvey shooting incident. Both argued that the government sought to offer the evidence to show their propensity for criminal conduct in violation of
Evidence that a coconspirator participated in acts which furthered the conspiracy constitutes substantive evidence of the conspiracy‘s existence. See id. at 833-34. Such evidence is probative of the crime charged and does not fall within Rule 404(b)‘s exclusion of “other crimes, wrongs, or acts.” See United States v. Dierling, 131 F.3d 722, 732 (8th Cir. 1997), cert. denied, 523 U.S. 1054 (1998). Our circuit has previously recognized that evidence of violent acts committed by conspirators during and in relation to the conspiracy are direct evidence of the conspiracy and are therefore admissible. See, e.g., id. (concluding evidence of slaying and shooting committed during a drug conspiracy was not subject to Rule 404(b) exclusion); United States v. Grajales-Montoya, 117 F.3d 356, 363-64 (8th Cir.) (stating evidence that drug conspirators kidnaped, interrogated, and arranged for their maid to be killed was admissible as direct evidence of a conspiracy), cert. denied, 522 U.S. 983 (1997).
Evidence of Maynie and Banks’ attempt to shoot Stewart is similarly admissible as substantive evidence. The shooting incident occurred during the time period in which the government charged that the conspiracy was ongoing. According to Stewart‘s testimony, a rift occurred between himself and Dietrick Banks because Banks
We reject Maynie and Banks’ argument that evidence of the shooting was unfairly prejudicial. See
IV. Sufficiency of the Evidence
Maynie and Logan argue the evidence presented at their trials was insufficient to support that they were members of a conspiracy to distribute crack cocaine. In determining whether the evidence was sufficient to support a conviction, we view the evidence in a light most favorable to the verdict, giving it the benefit of all reasonable inferences. United States v. Calderin-Rodriguez, 244 F.3d 977, 983 (8th Cir. 2001). Reversal is required only where no reasonable jury could have found a defendant guilty beyond a reasonable doubt. Id. “[T]he standard to be applied to determine the sufficiency of the evidence is a strict one, and the finding of guilt should not be overturned lightly.” Hill v. Norris, 96 F.3d 1085, 1088 (8th Cir. 1996) (quoting United States v. Brown, 921 F.2d 785, 791 (8th Cir. 1990)). To support a conviction for
A. Maynie
Maynie directs his challenge at the third showing. He contends the evidence showed, at best, that he was aware of the conspiracy and that he was present when drug sales were made but that he was not actively involved. We conclude, however, that there was an abundant amount of evidence presented showing that Maynie was actively involved in the distribution of crack cocaine and that he undertook numerous other acts in furtherance of the conspiracy, which supports a finding that he was a knowing participant.
Tyrone Banks testified to much of Maynie‘s involvement in the conspiracy. According to his testimony, Maynie first appeared in Davenport after Stewart and Dietrick Banks had their disagreement, and Maynie and Dietrick Banks then “went together on everything.” (Tr. at 131.) Tyrone Banks testified that part of his role in the operation was to store crack cocaine at a different location until the drug was needed and that Maynie would drop off crack cocaine to him and pick it up later when there was need for it. He also testified that either Maynie or Dietrick Banks called him to inform him when Maynie would be by to pick up the drug.
There was also other evidence of Maynie‘s involvement in the operation‘s distribution of crack cocaine. One individual testified that Maynie, E.G. Harrison, and others traveled to Chicago three to four times per month to replenish their supply of crack cocaine. Rosie Butler also testified that she saw Maynie drop off drugs and pick up money at both the Harrison Street and Perry Street apartments. She also testified that she observed Maynie selling crack cocaine at the Harrison Street apartment on the
Evidence of Maynie‘s involvement extended beyond the mere logistics of distributing the crack cocaine. Three witnesses testified that they were present at the Harrison Street apartment when Dietrick Banks and Maynie beat an individual with a board because he had stolen crack cocaine from them. Tyrone Banks also testified that Dietrick Banks became suspicious after Stewart‘s departure and believed that he had also stolen drug money. He testified that Maynie, at Dietrick Banks’ direction, later placed a gun to his head and robbed him of his clothing and drug money that was in his possession. Finally, Stewart testified that Maynie was an accomplice in the shooting incident, which, as we have already discussed, was highly probative of Maynie‘s involvement.
We reject Maynie‘s assertion that this evidence merely established that he was present when drugs were being sold. Once the existence of a conspiracy is established, “only slight evidence is required to link a defendant to the conspiracy.” United States v. Jiminez-Perez, 238 F.3d 970, 973 (8th Cir. 2001). Evidence of Maynie‘s knowing participation was far greater than “slight,” and we accordingly conclude that the evidence supports his conviction.
B. Logan
Logan also contends there was insufficient evidence to support her conviction, although she herself identifies numerous instances in which nine witnesses, coconspirators, and others somehow connected to the operation, gave testimony directly implicating her knowledge of the conspiracy and her active participation in it. In light of Logan‘s candid and forthright admission, we do not need to discuss the evidence in detail. Needless to say, we have reviewed the record and conclude that there was adequate evidence presented to support her conviction. The evidence
Logan suggests instead that the evidence of her involvement was insufficient because the nine witnesses were incredible. She essentially argues that the jury was not entitled to believe their testimony because most of the witnesses admitted personal drug use and because all nine were seeking leniency, in some respect, from either the state or federal government for their involvement in the conspiracy. Memory and bias are matters implicating a witness‘s credibility and the weight to be given the testimony. They are within the province of the jury, and we are prohibited from evaluating them when reviewing the sufficiency of the evidence. See United States v. Stroh, 176 F.3d 439, 440 (8th Cir. 1999).
V. Apprendi
Between the time of defendants’ trials and when we heard their appeals, the Supreme Court announced its decision in Apprendi v. New Jersey. The Court held in Apprendi that any fact (other than a prior conviction) which increases the penalty for a crime beyond the maximum statutory penalty authorized must be submitted to a jury and proved beyond a reasonable doubt. 530 U.S. at 488-90. We subsequently held in United States v. Aguayo-Delgado, 220 F.3d 926, 933-34 (8th Cir.), cert. denied, 121 S. Ct. 600 (2000), that the government is prohibited from seeking a penalty in excess of those provided in
Although the Supreme Court explicitly excluded prior convictions from those facts which constitute an element of the offense, defendants argue the Court was prepared to overrule its holding in Almendarez-Torres v. United States, 523 U.S. 224 (1998), and ask us to advance Apprendi that additional step. We decline. See United States v. Rush, 240 F.3d 729, 731 (8th Cir. 2001) (rejecting argument that prior conviction must be found by a jury because Apprendi expressly excluded prior convictions from its holding). We are obligated to follow what the Supreme Court has said, not guess what it might say in the future. See Agostini v. Felton, 521 U.S. 203, 237 (1997) (stating that a court of appeals should follow controlling Supreme Court precedent even though it may have been called into question indirectly).
The second prong of defendants’ Apprendi argument, that their sentences were unlawfully imposed because drug quantity was not alleged in the indictment or submitted to the jury, was not raised below and is therefore subject to plain error review. See
Whether the error is cognizable under plain error review has substantial consequences to defendants. Because all three have at least one prior drug felony conviction, the maximum sentence the district court could have imposed without
A defendant‘s rights are substantially affected when the error “prejudicially influenced the outcome of the district court proceedings.” Butler, 238 F.3d at 1005 (quoting United States v. Poulack, 236 F.3d 932, 938 (8th Cir. 2001)). In previous cases where a sentence has been challenged on a previously unraised ground, we have found a defendant‘s substantial rights were affected where correction of the error would result in a lesser term of imprisonment. See United States v. Kroeger, 229 F.3d 700, 702 (8th Cir. 2000) (holding that error causing sentence to exceed authorized Guideline sentence by 30 months affects substantial rights); United States v. Comstock, 154 F.3d 845, 850 (8th Cir. 1998) (recognizing that substantial rights were affected where defendant would serve 17 months less if the error had not occurred); see also United States v. Robinson, 250 F.3d 527, 529 (7th Cir. 2001)
Our court held in Poulack that an Apprendi error did not affect the defendant‘s substantial rights where the defendant (1) was informed prior to trial of drug quantity the government intended to prove, (2) had an opportunity to contest the weight of drug prior to trial, (3) stipulated to drug quantity at trial, and (4) where the defendant‘s counsel conceded there was no basis to contest the district court‘s quantity finding. See Poulack, 236 F.3d at 937-38. The circumstances are quite different here. The government has not suggested that defendants were informed prior to trial of the amount of crack cocaine it sought to prove, nor did defendants stipulate to drug quantity at trial. See Butler, 238 F.3d at 1005 (distinguishing Poulack where defendant had not “admit[ted] to the essential element of [drug] quantity at trial“). And, unlike in Poulack, defendants had grounds for attacking the credibility of the government‘s witnesses whose testimony formed the sole basis for the district court‘s drug quantity finding.
The government argues, relying on Johnson v. United States, that we should nevertheless refuse to recognize the Apprendi error because it does not seriously affect the fairness, integrity, or public reputation of judicial proceedings. In Johnson, the defendant was indicted for perjury under
The government argues here that the Apprendi error also has no effect on the judicial proceedings because there was “overwhelming” evidence that the defendants were responsible for 50 grams or more of crack cocaine. We recognize that there was a significant amount of testimony presented that, if the juries believed the witnesses, surely would have resulted in a finding that each defendant was responsible for substantially more than 50 grams. The Apprendi error in this case, however, unlike the error in Johnson, involves more than the mere failure to instruct the jury on an element of the offense; it involves the government‘s failure to charge an element of the offense in the indictment, and the district court‘s imposition of a sentence which both exceeds the crime charged by the government and exceeds the punishment authorized for the offense of conviction.
In United States v. Griffin, we recognized that a variance between facts charged in an indictment and the evidence presented by the government at trial that
is so fundamental that it permits the jury to convict the defendant of a different crime than that charged . . . is a constructive amendment of the indictment that – “destroy[s] the defendant‘s substantial right to be tried only on charges presented in an indictment returned by a grand jury. Deprivation of such a basic right is far too serious to be treated as nothing more than a variance and then dismissed as harmless error.”
VI. Conclusion
For the reasons set forth above, we affirm defendants’ convictions, but reverse defendants’ sentences and remand to the district court with directions to resentence each defendant to a 30-year term of imprisonment. See
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.