United States v. Kendrick Akins

Citations: 746 F.3d 590; 93 Fed. R. Serv. 1320; 2014 U.S. App. LEXIS 5492; 2014 WL 1225098Docket: 12-40515

Court: Court of Appeals for the Fifth Circuit; March 25, 2014; Federal Appellate Court

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Kendrick Tyshawn Akins and six co-defendants were convicted of conspiracy to possess with intent to distribute significant quantities of cocaine and marijuana, violating 21 U.S.C. §§ 841(a) and 846. The case stemmed from a 2008 DEA investigation into a drug trafficking operation that moved drugs from Mexico through Dallas to Paris, Texas, and Hugo, Oklahoma. The investigation utilized around 10,000 wiretapped calls, which provided crucial evidence.

Key figures included Stacey Williams, a major cocaine supplier, who connected his supplier Francisco Trujillo with Rafael “Fel” Carrae Edwards. Edwards was arrested in June 2009, with crack cocaine and a firearm found at his apartment. Subsequent searches revealed ledgers containing drug trafficking references linked to Edwards, Akins, and Tommy Deshone “Shawn” Perkins, who operated a drug distribution hub in Paris. The evidence included recorded conversations about drug quality and sales between Edwards and Shawn Perkins, as well as controlled drug purchases from Shawn Perkins.

An indictment on June 11, 2009, charged multiple defendants, including Akins, with conspiracy related to the distribution of cocaine and marijuana. Eight defendants pleaded guilty, while charges against one were dismissed. The appellate court affirmed the convictions.

On August 19, 2010, a grand jury issued a superceding indictment charging nine defendants, including Eladio Jose Leal, with conspiracy (Count One). Edwards faced additional firearm charges related to drug trafficking under 18 U.S.C. 924(c)(1) (Counts Two and Three), while Shawn Perkins was similarly charged in Count Four. Leal pleaded guilty to the conspiracy count on October 13, 2010. The trial commenced on October 25, 2010, for the eight remaining defendants. Key testimony came from Stacy Bellamy, a cooperating witness, who detailed Edwards' delivery of four kilograms of powder cocaine to Perkins multiple times and noted ties between Perkins and Akins in the drug trade. Another witness, Trentargus Holt, corroborated this by stating he initially bought powder cocaine from Perkins and Akins before transitioning to crack. The prosecution introduced numerous wiretapped phone calls, often coded and difficult to interpret, to support their case. Secret Service Agent Darrell Lyons provided lay testimony on the meanings of these codes, while DEA Group Supervisor Mark Styron, as an expert witness, explained the role of firearms in drug operations and the significance of the coded language. After the Government's case, all defendants moved for acquittal, with only Perkins’ firearm charge being granted. On November 15, 2010, the jury convicted all eight defendants of the conspiracy charge, attributing specific drug quantities to each, with notable amounts of cocaine and cocaine base linked to each defendant.

Edwards was acquitted of two firearms offenses but received a 360-month sentence for conspiracy, along with varying sentences for co-defendants, including life imprisonment for Akins and Liggins. All defendants except Dunkins are appealing. The document addresses the admissibility of testimony regarding drug slang from Secret Service Agent Darrell Lyons. The court reviews the objection under Federal Rule of Evidence 701 for abuse of discretion. Lyons, who was initially barred from testifying as an expert due to lack of notice, was allowed to provide lay testimony based on his personal involvement in the investigation. Defense objections to his interpretations of coded conversations were overruled, with the court maintaining that his insights were drawn from the case-specific investigation rather than specialized knowledge. The court's ruling aligns with precedent, asserting that lay witnesses can offer opinions based on their perceptions relevant to the case.

Witnesses provided factual testimony regarding the case's circumstances and their observations, despite defining certain legal and accounting terms. The court deemed any potential error in admitting this testimony harmless, as it did not reasonably affect the jury's verdict. The court acknowledged that terminology specific to drug trafficking may necessitate expert testimony but clarified that lay witnesses with substantial involvement in an investigation can also testify about drug slang meanings. 

In **United States v. Miranda**, the court upheld an FBI agent's testimony on code words, ruling it permissible under Fed. R. Evid. 701 due to the agent’s extensive investigative experience. Similarly, in **United States v. El-Mezain**, the court found that agents could provide relevant testimony based on their firsthand experiences, even if some specialized knowledge was involved.

The court affirmed that the district court did not err in admitting Lyons’ testimony, as he was the lead investigator, deeply involved in the case, and had firsthand knowledge of the relevant conversations and evidence. Any potential issues with Lyons’ testimony were deemed harmless and cumulative of other evidence presented. Challenges regarding Lyons' qualifications and his personal impressions were rejected, and the trial judge was found to have acted within discretion in allowing his observations as a basis for testimony.

The Court affirmed that lay witnesses, with significant involvement in an investigation, can testify about the meaning of drug code words. Appellants' argument against Lyons' dual role as case agent and lay opinion witness was rejected; his testimony did not constitute a "summary witness" as defined by precedent. The Court referenced *United States v. Nguyen* and *United States v. Fullwood*, noting that while summary witnesses may summarize records, they cannot dictate jury conclusions. Lyons’ interpretations of wiretapped recordings were based on evidence already presented, and he did not recap the Government’s case. His testimony about drug slang was deemed appropriate and did not involve conclusions about the appellants' guilt.

Regarding DEA Group Supervisor Mark Styron, the Court upheld his testimony on drug code meanings despite objections regarding his qualifications. The court found Styron’s extensive experience (23 years as a DEA agent) sufficient for him to qualify as an expert on drug slang. The appellants did not contest his qualifications on appeal or argue that the prior disclosure of his expert designation was inadequate or irrelevant. No abuse of discretion was found in allowing Styron's testimony.

Styron was initially designated by the Government as an expert on drug slang, as indicated in a notice provided to defense counsel prior to trial, but appellants only referenced a later notice that highlighted his expertise in firearms. The Government filed a motion to supplement the appeal record with this initial notice, which was granted by the Court. The notice confirmed Styron's role as a "Drug Distribution Expert," outlining his qualifications and intended testimony regarding slang terms used in drug distribution. Despite the appellants’ claims that Styron's testimony exceeded his designated expertise, the court found no error in his designation, affirming that defense counsel received adequate notification. Furthermore, the appellants argued that allowing Styron to testify about drug slang violated their Sixth Amendment rights under the Confrontation Clause, contending that his dual role as an expert and a lay witness hindered their cross-examination efforts. They cited a Second Circuit case, United States v. Dukagjini, highlighting similar concerns regarding expert and lay testimony overlap. The court reviewed the Confrontation Clause objections de novo, applying a harmless error analysis.

The Second Circuit acknowledged that using a case agent as both a fact and expert witness can increase the risk of unreliable expert testimony influencing the jury. However, it found no evidence that Styron served dual roles or that his testimony was improperly constrained during cross-examination. Styron’s testimony was characterized as general insights about the drug trade derived from his extensive career rather than specific fact testimony related to the defendants. Defense counsel highlighted this distinction to the jury, clarifying that Styron’s expertise was not based on the specifics of the investigation at hand.

The appellants argued that Styron’s reliance on hearsay from other investigations violated the Confrontation Clause, citing United States v. Mejia. However, the court determined Mejia did not apply, as Styron's expert opinion was based on non-testimonial information. Styron explained his conclusions were drawn from his extensive experience and exposure to drug-related conversations and investigations. Federal Rule of Evidence 703 permits experts to base opinions on both admissible and inadmissible evidence that experts in the field would reasonably consider. The court concluded that Styron’s reliance on such information did not violate the Confrontation Clause.

The appellants, specifically Marco Perkins, Gage, Liggins, Walters, and Akins, contested the sufficiency of the evidence supporting their conspiracy convictions but did not challenge the jury’s drug-quantity findings.

Akins contests the jury's determination that he was knowingly part of a conspiracy and that he should be accountable for five kilograms or more of powder cocaine, while not disputing the finding of responsibility for 50 grams or more of crack cocaine. All defendants sought a judgment of acquittal under Fed. R. Crim. P. 29 at the end of the Government's case-in-chief, which the court permitted them to adopt after resting. The appellate review for sufficiency of evidence is conducted de novo, favoring the verdict and assessing whether any rational jury could find guilt beyond a reasonable doubt, without weighing the evidence or assessing witness credibility.

To secure a conspiracy conviction, the prosecution must demonstrate, beyond a reasonable doubt, the existence of an agreement to manufacture, distribute, or possess with intent to distribute cocaine, crack, or marijuana, along with each defendant’s knowledge and voluntary participation. A conspiracy can be inferred from circumstantial evidence, including presence and association.

Concerning Marco Perkins, despite evidence primarily indicating a fraternal bond with Shawn Perkins, sufficient evidence supports the jury's inference of a co-conspiratorial relationship. Recorded wiretapped calls indicated Marco's involvement in a drug distribution operation with Shawn and Akins, with discussions about drug quantities and transactions suggesting active participation in a conspiracy.

Stacy Lynn Gage argues he was merely a buyer and seller of drugs, not part of a conspiracy. While a simple buyer-seller relationship typically does not constitute a conspiracy, involvement in a plan to distribute drugs qualifies. The evidence indicates Gage regularly purchased drugs in distribution quantities from the Paris network, leading to a reasonable inference of a voluntary agreement to violate narcotics laws.

On December 10, 2008, a wiretap recorded Gage expressing dissatisfaction to Shawn Perkins about receiving only 78 grams of drugs instead of the expected 126 grams, leading him to suspect an issue with his scale. Text messages between Perkins and Angela Melton (Gage's girlfriend) from December 15 to 21, 2008, revealed coordination of drug purchases. Witnesses, including Stacy Bellamy and Terrence Miles, testified they observed Gage purchasing significant amounts of crack cocaine, supporting Gage's conviction.

Clovis Shantez Liggins argued that the evidence did not demonstrate his involvement in a broader drug conspiracy, suggesting he only aided his brother Perkins. However, the evidence, including several wiretapped calls, indicated Liggins' participation. In a November 26, 2008 call, Perkins instructed Liggins to collect a debt from a co-defendant, and a December 1 conversation referenced a drug sale arrangement. On January 9, 2009, Liggins inquired about his drugs from Perkins, who instructed a female associate to hide drugs at his mother's house, further implicating Liggins.

James Liggins, another cooperating witness, testified about weekly cocaine purchases from Shantez Liggins and mentioned needing to consult his brother for credit arrangements. Terrence Miles corroborated that Shantez worked with his brothers in the drug trade. The jury's conclusion that Liggins was a knowing participant in the conspiracy was deemed reasonable.

Donnell Leshone Walters' conspiracy conviction was also supported by evidence, including a wiretap from December 13, 2008, where Walters complained to Perkins about receiving low-quality crack cocaine, which affected his business. Additionally, a call with Akins indicated Walters owed money for drugs, highlighting his involvement in the conspiracy.

Stacy Bellamy, a cooperating witness, testified that he sold Walters crack cocaine weekly during the summer of 2007, indicating Walters' involvement as a dealer in a drug distribution conspiracy. The jury concluded that Walters was a knowing member of this conspiracy based on this testimony and additional evidence. 

Kendrick Tyshawn Akins contested the sufficiency of evidence supporting his status as a knowing member of the conspiracy and his responsibility for five kilograms or more of powder cocaine, although he did not dispute his liability for 50 grams or more of crack cocaine. Evidence from numerous wiretapped calls corroborated Akins' involvement, including communications where he and another individual discussed drug quantities and transactions.

The jury found Akins guilty of conspiracy to distribute significant quantities of cocaine, crack cocaine, and marijuana, determining he was responsible for five kilograms or more of cocaine and 50 grams or more of crack. The government had the burden to prove the conspiracy's existence, Akins' involvement, and the drug quantities beyond a reasonable doubt. It was clarified that the government need not prove the specific amount of drugs attributable to each co-conspirator, focusing instead on the total conspiracy and what each defendant could reasonably be aware of regarding drug quantities involved, based on their roles and relationships within the conspiracy.

The jury concluded that the conspiracy involved over five kilograms of powder cocaine, with Akins held fully responsible as a member. There was substantial evidence of Akins’ active participation, which justifies the jury's determination despite his primary dealings in crack cocaine. Testimony from Trentargus Holt, a cooperating witness, indicated that Akins engaged in direct transactions involving powder cocaine as well. 

Gage's argument for severance based on being tried with co-defendants who had more extensive evidence was deemed waived, as he failed to file a motion for severance before trial as required by Federal Rule of Criminal Procedure 12(b)(3)(D). The court emphasized that an appellant must demonstrate cause for not filing a timely motion, which Gage did not do. Consequently, his severance claim was not considered on appeal. 

Additionally, even under plain error review for failure to sever, Gage's claim that extensive evidence against co-defendants prejudiced him did not meet the criteria for clear or obvious error affecting the trial’s fairness or integrity.

Akins contends that the district court's denial of his motion for a continuance prejudiced him, as the case's complexity and the limited time for his counsel to prepare hindered his defense. The appellate court will reverse such a denial only if it finds an abuse of discretion and establishes serious prejudice. Akins’ current counsel, Mr. D’Angelo, was appointed just 46 days before trial, following two prior attorneys. D’Angelo moved for a continuance, which the Government opposed due to case backlog. The court denied the motion, citing scheduling issues that would delay the trial until mid-2011. On the trial's first day, D’Angelo renewed the request, which was again denied, although the court permitted him to adopt pre-trial motions from co-defendants. Akins argued that the short preparation time, particularly regarding audio discovery, compromised his defense. 

The court assesses complaints of inadequate preparation time by evaluating several factors: the preparation time available, the defendant’s utilization of that time, potential prejudice from the denial, discovery availability, and case complexity. Although the case was complex and preparation time was limited, the court found no abuse of discretion in denying the continuance, noting that D’Angelo had support from co-defendants and the Government provided discovery assistance. D’Angelo actively represented Akins at trial and effectively cross-examined witnesses, indicating that the circumstances did not constitute serious prejudice.

In another matter, Edwards challenges the district court's imposition of an aggravating-role enhancement under U.S.S.G. 3B1.1(b), arguing he was improperly classified as a manager or supervisor in the conspiracy. The appellate court reviews this factual finding for clear error, only deeming it erroneous if convinced a mistake occurred based on the evidence presented.

Counsel was appointed ten days before trial in a complex case involving ten defendants and extensive discovery. Despite the short timeline, the counsel effectively represented the defendant and benefited from co-defendant arguments. In the case of Edwards, he was sentenced to 360 months for conspiracy. A three-level offense level increase under U.S.S.G. § 3B1.1(b) was applied due to his managerial role in the conspiracy, despite the presentence report indicating no adjustments for his role. The Government objected to the absence of a leadership-role adjustment, citing Edwards' supervision of co-conspirator Antwan Price, supported by intercepted communications where Edwards provided instructions and oversight on drug transactions and quantities. The district court found sufficient evidence demonstrating Edwards’ control over Price, leading to the conclusion that the enhancement for a managerial role was not clear error. Additionally, the district court applied a two-level enhancement for firearm possession under U.S.S.G. § 2D1.1(b)(1), a decision reviewed for clear error, reinforcing the sentencing adjustments made.

A two-level enhancement applies under U.S.S.G. 2D1.1(b)(1) if a dangerous weapon, including a firearm, was possessed during the underlying offense. In this case, a loaded .30 caliber semiautomatic pistol was found under the mattress where Edwards resided with his girlfriend, along with small amounts of crack, heroin, and marijuana. Although the jury acquitted Edwards of using or possessing a firearm in relation to a drug trafficking crime, the court determined that the firearm's presence met the lower standard for enhancement, as the evidence indicated Edwards was aware of the weapon and explained its use to his girlfriend. This connection was not deemed improbable, reflecting the increased risk of violence associated with drug trafficking.

Separately, Gage challenged his sentencing as a career offender under U.S.S.G. 4B1.1, arguing that his two prior felony convictions should be treated as a single conviction due to their relatedness. However, the Guidelines stipulate that prior sentences are counted separately if separated by an intervening arrest. Gage's convictions for possession with intent to deliver and delivery of a controlled substance, both stemming from arrests in April and May 2003 and sentenced on the same day in November 2003, were found to be separate due to the intervening arrest, thus justifying the career-offender enhancement. Gage's assertion that the offenses were related due to their proximity in time and location was rejected.

Gage did not present any in-circuit authority to justify disregarding the explicit language of U.S.S.G. 4A1.2(a)(2), and the court upheld the appropriateness of Gage’s sentence calculation under 4B1.1(a) and 4A1.2(a)(2). It is established that, apart from prior convictions, any fact that raises a penalty beyond the statutory maximum must be submitted to a jury and proven beyond a reasonable doubt, as mandated by the Supreme Court in cases such as Alleyne v. United States. Consequently, both mandatory minimum and maximum sentences must be based on drug quantities determined by a jury. For defendants in drug trafficking conspiracies, the drug quantity includes both directly involved drugs and those attributable through the conspiracy. 

The jury found Akins responsible for five kilograms or more of cocaine, along with significant amounts of cocaine base and marijuana. Under 21 U.S.C. 841(b)(1)(A), involvement with five kilograms of cocaine subjects a defendant to a statutory punishment of ten years to life imprisonment, while a defendant with two or more prior felony drug convictions faces a mandatory life sentence without the possibility of parole. The Government sought to enhance Akins’ sentence under 21 U.S.C. 841 and 851 based on two prior felony convictions for drug offenses. The jury's finding of Akins' responsibility for the specified drug quantities, coupled with his prior convictions, qualifies him for a mandatory life sentence without parole under 841(b)(1)(A).

Akins contends that the sentencing judge improperly disregarded the jury's finding regarding his responsibility for five kilograms of powder cocaine, instead relying on a personal assessment that attributed him 280 grams or more of crack cocaine. This discrepancy led to a higher mandatory life sentence, violating the precedent set in Booker. While the court agrees that the judge erred by using a higher crack cocaine calculation, it concludes that the error is harmless since the jury's finding of five kilograms or more of powder cocaine also mandates a life sentence. The judge did not dismiss the jury's verdict on powder cocaine but found insufficient evidence to support the lower weight attributed to Akins.

In a separate case, Marco Perkins argued that the judge violated Booker by accepting the PSR’s conclusion that he was responsible for over 300 grams of crack cocaine, exceeding the jury's special verdict. The court determined that the judge's findings did not affect Perkins' statutory minimum or maximum sentence, thereby not constituting a violation under Apprendi or Alleyne. The judge's calculations were supported by evidence and deemed not clearly erroneous.

Lastly, Akins argued that his maximum sentence was improperly increased due to his prior felony drug convictions, asserting that this enhancement violated Apprendi because it wasn't included in the indictment or determined by a jury. However, the court found that, since the recidivist issue was not contested, prior convictions serve as a sentencing factor that does not require jury submission, aligning with established Supreme Court precedent. The conclusion of the court is to affirm the district court's sentencing decisions.