UNITED STATES оf America, Plaintiff-Appellee, v. Terry LOUIS, also known as “T-Lou“, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. William Gaynor PEARSON, Jr., also known as “Mad Bill“, also known as William Wright, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Michael Joseph SCOTT, also known as “Breeze“, also known as “News“, Defendant-Appеllant.
Nos. 99-3182, 99-3330, 00-1596
United States Court of Appeals, Eighth Circuit
Submitted: Oct. 20, 2000. Filed: March 23, 2001.
244 F.3d 1103
2. Ineffective Assistance of Counsel
The stаte court concluded that Carroll‘s trial counsel was not ineffective for failing to request the optional paragraph. Trial counsel had testified that he believed that the optional paragraph would have allowed Carroll to be convicted of a lesser level of intent, namely, recklessnеss, than the instruction as given required. The court observed the ample evidence of force used against Brownfield and noted that the optional paragraph, designed to address reckless conduct and situations where consent or the defendant‘s belief in consent may be reasonably inferred, was not aрplicable to the facts, and thus Carroll had not shown sufficient prejudice.
To succeed on a claim of ineffective assistance of counsel under Strickland, Carroll was required to show that he was prejudiced by his counsel‘s actions. Strickland, 466 U.S. at 687, 694, 104 S.Ct. 2052. In light of the evidence summarized above, the Missouri court‘s conclusion that there was no reasonable probability that the outcome would have been different had the optional paragraph been included is not an unreasonable one, and thus Carroll‘s argument fails.
The judgment is affirmed.
Carol Grant, argued, Minneapolis, MN, for Terry Louis, appellant.
Arthur Ray Martinez, argued, Minneapolis, MN, for William Pearson, Jr., appellant.
Andrew S. Dunne, AUSA, argued, Minneapolis, MN, for appellee.
BEFORE: MCMILLIAN, BOWMAN, and LOKEN, Circuit Judges.
LOKEN, Circuit Judge.
Members of a Los Angeles street gang known as the 132nd Street Shotgun Crips transported cocaine powder from California to the Twin Cities, where they cooked the powdеr into crack cocaine and distributed it. After a lengthy investigation that included wiretaps, seizure of 2,477 grams of cocaine powder from two couriers at the Twin Cities airport, and undercover purchases of 1,054 grams of crack cocaine, thirteen conspirators were indicted in July 1998. Nine pleaded guilty to the сonspiracy charge, including leaders William Gaynor Pearson and Michael Joseph Scott. Terry Louis went to trial and was convicted of conspiracy to distribute cocaine and use of a telephone to facilitate drug trafficking for his role in bringing one shipment of cocaine powder from Californiа to Minnesota. The district court1 sentenced Scott to 225 months in prison, Pearson to 210 months in prison, and Louis to 151 months in prison. Louis appeals his conviction, challenging the sufficiency of the evidence, the denial of a continuance, and the way in which wiretapped conversations were admitted into evidenсe. Louis also appeals the supervised release portion of his sentence. Pearson and Scott appeal their sentences, raising various sentencing issues. We affirm.
A. Louis first argues there was insufficient evidence to convict him of either participating in a drug trafficking conspiracy or illegal usе of a telephone. We will overturn a jury verdict only if, taking the facts in the light most favorable to the verdict, no reasonable jury could have found the defendant guilty of the offense beyond a reasonable doubt. See United States v. Fregoso, 60 F.3d 1314, 1322 (8th Cir.1995). “To be found guilty of conspiracy, a defendant must be shown to have knowingly entered into an agreement with at least one other person to violate the law.” United States v. Lacey, 219 F.3d 779, 783 (8th Cir.2000).
Derrick Atkins was a conspiracy leader who recruited couriers in California to transport cocaine powder to the Twin Cities. Atkins pleaded guilty and appeared as a government witness at Louis‘s trial. Atkins testified that he recruited Louis and provided him with a kilogram of cocaine to transport from California to Minnesota on the night of April 1, 1998. After arriving in Minnesota, Louis stayed at a residence called “Detox” by the conspirators, waiting for Scott to pay the $1000 Louis earned for his courier services and coordinating his return to California with Atkins by telephone. Atkins‘s testimоny was corroborated by intercepted phone calls in which conspiracy leaders discussed their attempts to find Louis at the Twin Cities airport, and by an April 5 telephone conversation between Louis and Atkins in which Louis stated, “business is handled, and I did my job.” Further corroboration was provided by undercover agent Kenny Williams, who testified that he purchased crack cocaine from conspirator Carolyn Owens on other occasions, but on April 3 Owens said she could only sell him cocaine powder because the “boys just got in” and the powder had not yet been cooked into crack.
Atkins also testified to Louis‘s continuing involvement in the conspiracy. In May 1998, courier Lennard Graham was arrested at the Twin Cities airport with a shipment of cocaine powder from California. Graham contacted Louis, who notified Atkins of Graham‘s arrest. During this intercepted phone conversation, Louis said he switched phones “‘cause I don‘t want everybody in our business.” According to Atkins, Louis also volunteered to transport cocaine to Minnesota by car following Graham‘s arrest, assuring Atkins that he (Louis) would never “run off” with the drugs.
We conclude that Atkins‘s testimony, if believed by the jury, was sufficient evidence of Louis‘s knowing participation in at least one of the conspirators’ drug trafficking trаnsactions and of his use of the telephone to facilitate that transaction. On appeal, Louis emphasizes the lack of other evidence implicating him in the conspiracy and notes that Atkins testified as a government witness hoping to receive a downward sentencing departure. However, Atkins was thоroughly cross examined, and the issue of his credibility was for the jury. The jury chose to credit Atkins‘s testimony, which was corroborated by other evidence. Thus, substantial evidence supports the jury‘s verdict. See United States v. Maggard, 156 F.3d 843, 847 (8th Cir.1998).
B. Louis next argues that the district court abused its discretion when it denied his motion for a continuance to obtain the attendanсe of a defense witness, California resident Brett Blackman. “Not the least of [a trial judge‘s] problems is that of assembling the witnesses, lawyers, and jurors at the same place at the same time, and this burden counsels against continuances except for compelling reasons.” Morris v. Slappy, 461 U.S. 1, 11, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983). We will reverse a district court‘s denial оf a continuance only if the court abused its discretion and the moving party was prejudiced by the denial. United States v. Cotroneo, 89 F.3d 510, 514 (8th Cir.1996).
Though Blackman had previously spoken with defense counsel by telephone, the U.S. Marshals Service was unable to serve
Q. Brett‘s a friend and not a member of the conspiracy, isn‘t that true?
A. Yes.
Q. And Brett did pass some messages along for you from time to time, didn‘t he?
A. No.
Q. Isn‘t it true that you called Brett before you pleaded guilty and told him to tell your co-conspirators to plead guilty, too?
A. No.
Q. You absolutely didn‘t do that? Is that your testimony?
A. Yes.
While impeachment by contradiction is a well-recognized way of attacking a witness‘s credibility, contradiction offered through the testimony of another witness is customarily excluded unless it is independently relevant or admissible. See MUELLER & KIRKPATRICK, MODERN EVIDENCE §§ 6.58, 6.62 (1995). As the Seventh Circuit stated in United States v. Kozinski, 16 F.3d 795, 806 (1994), “one may not contradict for the sake of contradiction” by proffering testimony that relates only to collateral matters. Here, the district court determined that Blackman‘s proffered testimony would have been excluded as relating to a collateral matter—whether Atkins attempted to urge his fellow conspirators to plead guilty. We agree with that determination. Therefore, the court was well within its discretion in denying a continuance of indefinite duration while the defensе attempted to obtain that testimony. See United States v. Calicutt, 598 F.2d 1120, 1121 (8th Cir.1979).
C. During Atkins‘s testimony, the jury heard audio tapes of intercepted telephone conversations between members of the conspiracy discussing various aspects of their drug trafficking activities. Louis argues the district court erred in allowing Atkins to identify the speakers in these cоnversations and to interpret the slang and code words used by the conspirators. We disagree. A district court does not abuse its discretion in admitting testimony by a witness with firsthand knowledge as to his understanding of words used by the defendant or other conspirators. See Fregoso, 60 F.3d at 1326; United States v. Franklin, 747 F.2d 497, 498 (8th Cir.1984). In this case, Atkins‘s leadership role in the conspiracy and his personal relationships with many conspirators, including Louis, gave Atkins firsthand knowledge of their slang and code words and the ability to identify the speakers in the intercepted telephone conversations.2
Louis further complains that Atkins was permitted to use transcripts of the conversations prepared by the government, while the jury followed along with a copy of the transcripts. The district court repeatedly instructed the jury that the tapes and not the transcripts were evidence and that any discrepancies should be resolved in favor of what they heard on the tapes. This procedure was not an abuse of the court‘s substantial discretion. See United States v. Delpit, 94 F.3d 1134, 1147-48 (8th Cir.1996); United States v. Britton, 68 F.3d 262, 264 (8th Cir.1995); United States v. McMillan, 508 F.2d 101, 105-06 (8th Cir.1974).
D. Finally, in a motion to supplement the appeal, Louis argues that his sentence of five years of supervised release exceeds the three-year maximum term authorized under
In United States v. LeMay, 952 F.2d 995, 998 (8th Cir.1991), we held that the maximum-term limitations in
II. William Pearson
Pearson and Atkins were conspiracy leaders responsible for the narcotics activities in California. Pearson‘s sole argument on appeal is that the district court erred in finding that all of the drugs attributed to the conspiracy—1,054 grams of crack cocaine purchased by an undercover officer in the Twin Cities, and 2,477 grams of cocaine powder seized at the Twin Cities airport—were reasonably foreseeable to Pearson as a California conspirator. “Before a quantity of drugs may be attributed to a рarticular defendant, the sentencing court is required to find by a preponderance of the evidence that the transaction or activity involving those drugs was in furtherance of the conspiracy and either known to that defendant or reasonably foreseeable to him.” United States v. Brown, 148 F.3d 1003, 1008 (8th Cir.1998); see United States v. Tauil-Hernandez, 88 F.3d 576, 579 (8th Cir.1996).
This contention was waived because Pearson‘s plea agreement provided that the “base offense level applicable in this case based upon the quantities of cocaine and cocaine base (‘crack‘) is Level 36,” the base offense level used in determining his sentence. See United States v. Barrett, 173 F.3d 682, 684 (8th Cir.1999); United States v. Durham, 963 F.2d 185, 187 (8th Cir.), cert. denied, 506 U.S. 1023, 113 S.Ct. 662, 121 L.Ed.2d 587 (1992). In any event, the contention is without merit. In sentencing Pearson, the district court stated that it had “heard the trial of the other defendants in this case” and found that the crack cocaine sales in Minnesota were reasonably foreseeable relevant conduct. The court was entitled to consider relevant evidence introduced at the trial of сo-defendant Louis. See United States v. Fetlow, 21 F.3d 243, 250 (8th Cir.1994). The testimony of Atkins at that trial amply demonstrated that the crack cocaine sales, as well as the cocaine powder seized at the Twin Cities airport, were reasonably foreseeable to Pearson as a leader of the conspiracy. The district court‘s drug quantity finding was not clearly erroneous.
III. Michael Scott
Scott stipulated in his plea agreement that he played a “leadership role” in a conspiracy comprised of five or more participants. After an evidentiary sentencing hearing, the district court found that Scott was a manager or supervisor of the conspiracy and imposed a three-level upward adjustment under
In a pro se supplemental brief, Scott raises additional sentencing issues. First, he argues that his counsel provided ineffective assistance at sentencing by failing to object to the testimony of Agent Mento and by failing to subpoena or require the government to produce Carolyn Owens for cross examination. As there is not an adequate record to permit us to consider these ineffective assistance claims on direct appeal, they must be raised in a post-conviction proceeding under
Second, Scott attacks the district court‘s drug quantity finding, asserting that the court relied оn hearsay testimony of an unreliable witness (Owens), that the court double-counted quantities of powder and crack cocaine, and that the drugs were not reasonably foreseeable to him. Like Pearson, Scott waived these contentions by agreeing to a base offense level of 36 in his plea agreement, “based upon the quantities of cocaine and cocaine base (‘crack‘).” In addition, he failed to object to the drug quantity finding at sentencing; as the facts summarized earlier in this opinion make clear, the drug quantity finding, which was based upon the crack cocaine sold to an undercover agent and thе cocaine powder seized at the Twin Cities airport, was not plain error. See United States v. Karam, 37 F.3d 1280, 1285 (8th Cir.1994) (standard of review).
The judgments of the district court are affirmed.