UNITED STATES of America, Plaintiff-Appellee v. Leslie ARMSTRONG, Defendant-Appellant.
No. 14-2146.
United States Court of Appeals, Eighth Circuit.
Submitted: Jan. 16, 2015. Filed: April 10, 2015.
Rehearing and Rehearing En Banc Denied June 17, 2015.
782 F.3d 1028
Before COLLOTON, BEAM, and KELLY, Circuit Judges.
Edward O. Walker, AUSA, argued, Little Rock, AR, for appellee.
The district court1 sentenced Leslie Armstrong to 180-months’ imprisonment following his conviction by a jury of one count of distribution of cocaine base, in violation of
I. BACKGROUND
On December 4, 2012, the government charged Armstrong in a one-count indictment with distribution of 12.5 grams of crack cocaine. This charge stemmed from Armstrong‘s alleged sale of crack cocaine to a confidential informant (CI) during a controlled buy that occurred in September 2009 (the “2009 Controlled Buy“). At the time of the 2009 Controlled Buy, the CI was working with the Drug Enforcement Agency (DEA) and local law enforcement and had already participated in several controlled buys involving different suspected drug dealers.
At trial, the government introduced substantial evidence regarding how the 2009 Controlled Buy unfolded and Armstrong‘s role in the buy. On the day of the buy, the CI met with DEA and local law enforcement officials at a confidential location. The officers thoroughly searched the CI to verify that he did not have any weapons, drugs, or money on his person. The CI then placed a call to a phone number he claimed belonged to Armstrong. At trial, the government played a recording of this call, and the CI can be overheard talking with a man and confirming that the man was ready to make the drug sale. Armstrong denies that he participated in the call, but the CI testified that the other voice in the recording belonged to Armstrong. The CI also testified that he was familiar with Armstrong‘s voice because he lived in the same apartment complex as Armstrong, had known him for years, and had purchased drugs from Armstrong on occasions prior to the 2009 Controlled Buy.
After the call, officers provided the CI with money to buy the drugs, placed an audio/video recording device on his clothing, and used a DEA vehicle to transport the CI to the apartment complex in which Armstrong lived. The CI exited the DEA vehicle and walked up to the apartment complex.2 The CI proceeded directly to Armstrong‘s apartment, although he apparently encountered several people, including a family member, along the way. The CI testified that, upon entering Armstrong‘s apartment, he paid Armstrong $700 in exchange for two baggies of crack cocaine. The government showed the jury footage that was captured by the audio/video recorder the CI wore during the buy. This footage, in relevant part, depicts the CI knocking on the door of Armstrong‘s apartment, receiving permission to enter, and handing something to Armstrong. Armstrong appears to examine the item(s) for several seconds, and then states “you paid me for two.” The footage then depicts Armstrong handing something to the CI, after which the CI exits the apartment. However, due to the angle of the recorder, the footage does not clear
After the CI exited the apartment, he immediately returned to the DEA vehicle and gave two baggies to the officers who had escorted him to the buy. The officers thoroughly searched the CI and verified that he had no additional drugs, weapons, or currency on his person. The government‘s forensic analyst testified that the baggies contained 12.5 grams of cocaine base. As noted above, Armstrong was not indicted on charges related to the 2009 Controlled Buy until December 2012.
Pursuant to
At trial, the CI was the first witness to provide substantive testimony about the 2007 Controlled Buy. Before allowing this testimony, the district court instructed the jury that evidence of the 2007 Controlled Buy was being offered only to help them decide whether Armstrong was the person who distributed crack cocaine to the CI during the 2009 Controlled Buy and whether Armstrong had the requisite intent to do so. The district court further admonished the jury that they could consider this evidence only if they unanimously found it was more likely true than not true, that this was a lower standard of proof than that required to convict Armstrong of the 2009 drug offense, and that they could not convict Armstrong merely because he had committed similar acts in the past.3
Following this instruction, the CI testified that in August 2007 he participated in a controlled buy that targeted another suspected drug dealer. The CI testified that when he arrived at the target‘s residence, the target told the CI that he did not have any drugs but could get some from “Wez,” which is Armstrong‘s street name. The CI testified that he and the target then waited approximately thirty minutes for Armstrong to arrive. At some point during this wait, the CI exited the target‘s apartment and returned to the DEA vehicle that was used to transport him to the buy location. The CI told the officers that Armstrong was bringing drugs to the buy location, that Armstrong had previously committed a violent crime against one of
At trial, the defense marshaled a heavy attack against the CI‘s credibility. During direct and cross-examination, the CI frankly acknowledged that he despised Armstrong because Armstrong had committed a violent crime against one of the CI‘s family members several years before either controlled buy occurred. The CI further admitted that he had numerous felony convictions, had been convicted of filing a false police report, had lied to his parole officer about his drug use, and had violated his parole on multiple occasions. The defense also presented three character witnesses who testified that the CI had a poor reputation for truthfulness in the community. In addition, the CI acknowledged that he was a cocaine addict and had used drugs in the months following the 2009 Controlled Buy. However, multiple law enforcement officials who observed the CI during the buy testified that he showed no signs of being high and that they would be willing to use the CI as an informant in the future because the information he provided was always reliable.
The jury ultimately convicted Armstrong of distributing crack cocaine to the CI during the 2009 Controlled Buy. Before sentencing, the United States Probation Office prepared a presentence investigation report (PSR). The PSR calculated that Armstrong had three prior felony convictions that were either a crime of violence or a controlled substance offense and therefore recommended that he be sentenced as a career offender under Section 4B1.1 of the
Armstrong objected to the PSR‘s recommendation that he be classified as a career offender. With respect to the manslaughter conviction, Armstrong contended that the Arkansas manslaughter statute under which he was convicted was divisible and that the charging documents could not resolve whether his manslaughter conviction constituted a crime of violence. Armstrong also argued that his convictions for the 1991 and 1992 drug offenses should be counted as one conviction for purposes of
II. DISCUSSION
A. Rule 404(b) Evidence
Armstrong contends the district court erred by permitting the government to present evidence about his role in the 2007 Controlled Buy. “[W]e review the district court‘s Rule 404(b) ruling for an abuse of discretion.” United States v. Turner, 583 F.3d 1062, 1065 (8th Cir. 2009) (alteration in original) (quotation omitted). “Evidence of a crime, wrong, or other act is not admissible to prove a person‘s character in order to show that on a particular occasion the person acted in accordance with the character.”
On appeal, Armstrong does not challenge the government‘s contention that the 2007 Controlled Buy is similar in kind and close in time to the 2009 drug offense. Armstrong argues, however, that this 404(b) evidence was inadmissible because it was relevant only to his propensity to commit the 2009 drug offense. Armstrong also contends the government failed to prove his involvement in the 2007 Controlled Buy by a preponderance of the evidence. We find these arguments unpersuasive.
“In order to find that [Armstrong] violated
We also hold the government proved Armstrong‘s role in the 2007 Controlled Buy by a preponderance of the evidence. “In the
Here, the district court did not abuse its discretion by determining a reasonable jury could conclude Armstrong provided the drugs the CI purchased during the 2007 Controlled Buy. The CI‘s trial testimony and the audio/video recording of the buy establish the target told the CI that he would have to get the drugs from “Wez,” that the CI indicated to the officers on scene that “Wez” was Leslie Armstrong, that Armstrong arrived at the apartment shortly thereafter, and that the target provided drugs to the CI within minutes of when Armstrong entered the apartment. Based on this evidence, a reasonable jury could have found it more likely than not that Armstrong was the supplier. See United States v. Sykes, 977 F.2d 1242, 1246 (8th Cir. 1992). Accordingly, “[t]he trial court‘s decision to admit the
B. Sufficiency of the Evidence
Armstrong next contends there was insufficient evidence supporting his conviction for the 2009 drug offense. “We review the sufficiency of the evidence de novo, viewing evidence in the light most favorable to the jury‘s verdict, resolving conflicts in the government‘s favor, and accepting all reasonable inferences that support the verdict.” United States v. Harris-Thompson, 751 F.3d 590, 598 (8th Cir.), cert. denied, 135 S. Ct. 415, 190 L. Ed. 2d 301 (2014). “[W]e will reverse only if no reasonable jury could have found [Armstrong] guilty beyond a reasonable doubt.” United States v. McCraney, 612 F.3d 1057, 1063 (8th Cir. 2010).
Armstrong‘s primary argument essentially is that the testimony of the CI was unreliable. However, “[t]he jury is responsible for assessing the credibility of witnesses” and its credibility determinations “are virtually unreviewable on appeal.” United States v. Thompson, 560 F.3d 745, 748-49 (8th Cir. 2009) (internal quotation omitted). Here, Armstrong‘s attorneys cross-examined most of the government‘s witnesses, including the CI, extensively, regarding the CI‘s felony convictions, his history of lying to law enforcement officials, and his well-documented animus towards Armstrong. Armstrong also presented multiple character witnesses who attacked the CI‘s reliability. In spite of this evidence, “[t]he jury evidently chose to credit [the CI‘s] testimony despite his checkered background and potential bias, and we will not disturb its judgment.” McCraney, 612 F.3d at 1063. Furthermore, the government‘s audio/video footage of the events that took place inside Armstrong‘s apartment corroborates the CI‘s testimony. Although this footage does not directly show the hand-to-hand exchange of drugs and money, the jury could have reasonably accepted the CI‘s explanation that the footage depicted such an exchange. See id. In addition, the footage clearly captures Armstrong saying “you paid me for two,” and the jury could have reasonably inferred this statement referred to the two baggies of crack cocaine the CI later surrendered to law enforcement officials. Finally, as dis
C. Career Offender
Armstrong argues that the district court erred by sentencing him as a career offender under
A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
Prior sentences always are counted separately if the sentences were imposed for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense). If there is no intervening arrest, prior sentences are counted separately unless (A) the sentences resulted from offenses contained in the same charging instrument; or (B) the sentences were imposed on the same day.
The facts relevant to the issue of whether the 1991 and 1992 drug offenses were separated by an intervening arrest are essentially undisputed. On or around November 27, 1991, Armstrong was arrested by the Jackson County Sheriff‘s Office on a first-degree murder charge for the killing that ultimately resulted in his manslaughter conviction. On December 10, 1991—while Armstrong was still in custody on the murder charge—a member of the sheriff‘s department served Armstrong with a bench warrant for the 1991 Drug Offense and informed Armstrong of the drug charge. The record indicates that the sheriff‘s department did not release Armstrong before serving the warrant, nor did it repeat its normal booking procedures, such as fingerprinting and photographing Armstrong. Armstrong remained in custody until August 12, 1992, when he posted bond for both the murder and drug charges. On December 28, 1992, Armstrong sold crack cocaine to a confidential informant, and he was arrested the following day. During the arrest, officers searched Armstrong‘s person and discov
Armstrong contends he was never arrested for the 1991 Drug Offense because he was already in custody when officers served him with the bench warrant. In other words, Armstrong seemingly argues that being detained on a charge does not count as an arrest unless officers actually apprehend the offender for the purpose of facing that charge. Armstrong cites no legal authority for this proposition and instead urges us to define the term “arrest” according to the procedures of arrest set forth in the Arkansas code.
“Endeavoring to ascertain the ordinary meaning of a word,” we often begin by looking at a dictionary. Id. Black‘s Law Dictionary defines the term “arrest” as “(1) A seizure or forcible restraint [or] (2)[t]he taking or keeping of a person in custody by legal authority, esp. in response to a criminal charge.” Black‘s Law Dictionary 130 (10th ed. 2014) (emphasis supplied). Although a number of our sister circuits have disagreed regarding the degree of restraint necessary to effect an arrest for purposes of the Guidelines, compare Leal-Felix, 665 F.3d at 1044 (traffic stop and issuance of citation not an arrest) with United States v. Morgan, 354 F.3d 621, 623-24 (7th Cir. 2003) (“A traffic stop is an ‘arrest’ in federal parlance.“), it is abundantly clear that being jailed to face charges amounts to an arrest. Atwater v. City of Lago Vista, 532 U.S. 318, 323-25, 121 S. Ct. 1536, 149 L. Ed. 2d 549 (2001). Furthermore, although Armstrong was not “apprehended” for the 1991 Drug Offense, we see no meaningful difference between the circumstances of his detention and those of an offender who is apprehended and jailed solely on a drug charge. Armstrong was explicitly informed of his drug charge via the bench warrant, was detained in jail for nearly nine months on both the drug and murder charges, and was required to post bond for both charges before being released. We therefore hold that Armstrong was subject to an intervening arrest for purposes of the Guidelines. Accordingly, the district court did not err by sentencing Armstrong as a career offender.
For the reasons stated herein, we affirm Armstrong‘s conviction and sentence.
KELLY, Circuit Judge, concurring.
I concur in the court‘s opinion. I write separately because I consider evidence of the 2007 controlled buy admissible for a different reason. Regarding Armstrong‘s argument that the evidence of his involvement in the 2007 controlled buy was not sufficiently reliable, I agree that the government proved Armstrong‘s involvement in that transaction by a preponderance of the evidence. On appeal, Armstrong also argues that this evidence was offered solely as propensity evidence. Yet, such “evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”