United States v. Drew

Citation: 894 F.2d 965Docket: Nos. 88-2661, 88-2662 and 88-2668

Court: Court of Appeals for the Eighth Circuit; January 16, 1990; Federal Appellate Court

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An appeal was filed by defendants convicted of drug-related offenses in Kansas City. The case originated from a February 1988 indictment against Dennis Drew for distributing cocaine. Following the indictment, informant Frank Biondo reported Drew's attempt to hire him for the murder of Carolyn Tanner, whose testimony had led to Drew's indictment. Biondo, equipped with a hidden recorder during their meetings, collected evidence of Drew discussing the murder plot and selling narcotics. This information implicated three additional individuals in a cocaine distribution conspiracy, leading to a search warrant for their shared residence, which uncovered marijuana, cocaine, drug paraphernalia, firearms, and cash.

A superseding indictment was subsequently issued against Dennis Drew, Earl Drew, Hampton Stewart, and Henry Tatum, although charges against Tatum were dropped due to his unavailability for trial. The jury found all remaining defendants guilty of conspiracy to distribute cocaine. Dennis Drew was additionally convicted of attempting to kill Tanner, while Earl Drew was convicted of using firearms in connection with drug trafficking. 

On appeal, the defendants raised ten issues, all of which were found to lack merit. Earl Drew specifically contended that his trial should have been severed from his co-defendants, arguing prejudice and abuse of discretion. The court determined that co-conspirators are typically tried together and that Drew did not demonstrate sufficient prejudice from the admission of co-defendant statements, which were allowed under the Federal Rules of Evidence. Drew's challenge to his firearm conviction was based on the claim of insufficient evidence, arguing that without discharging a weapon, he should not be charged with firearm use during a felony. The court upheld the convictions and denied the appeal.

Appellant faces significant challenges in seeking a reversal of his conviction. Evidence must be interpreted favorably for the government, which is entitled to all reasonable inferences from the evidence. The felony related to Drew's firearms charge involved the ongoing operation of a drug house rather than a single incident. The jury convicted Drew of conspiracy to distribute cocaine and cocaine base, with evidence including multiple undercover drug purchases, conversion of cocaine powder to crack cocaine on the premises, and the discovery of drug paraphernalia and illegal drugs during a search. Two firearms, a .357 magnum revolver and a .44 magnum revolver, were found in Drew's bedroom, along with testimony from a government witness indicating Drew bartered cocaine for the .357 magnum and used it when greeting customers. The court has established that the presence of firearms in drug trafficking scenarios constitutes "use" of a firearm. The jury had ample evidence supporting Drew's involvement in the drug house and the firearm's presence, leading to the conclusion that Drew "used" a firearm during drug-related offenses.

Drew raises two issues regarding the government's closing argument. The court reviews objections to closing statements under an abuse of discretion standard. First, Drew argues that the government misrepresented the interpretation of "use" under the firearm statute, claiming this misstatement violated his due process rights. The court rejected this argument, finding no error in the government's interpretation. Secondly, Drew contends that the government mischaracterized the standard of "beyond a reasonable doubt" by equating it to being "sure" or "certain." Definitions from the dictionary suggest that "sure" and "certain" can embody a lack of doubt, which means they do not detract from the standard required for conviction. Thus, the differences in wording do not warrant a complaint from Drew regarding the closing argument.

Prosecutors should refrain from explaining "beyond a reasonable doubt" to the jury, as this responsibility lies with the trial judge. The error in this case was harmless and favored the defendants, thus no reversal is warranted. Earl Drew argues that evidence of his prior drug dealings was improperly admitted under Rule 404(b) of the Federal Rules of Evidence, which restricts using prior bad acts to prove character but allows admission for motives, intent, or opportunity. The trial judge has discretion in this determination, and evidence is only reversed if it is irrelevant to the case. The court found that Drew's prior narcotics activities were relevant to his guilt regarding the current charges, demonstrating opportunity and intent. Although Drew claimed that the timing of his previous drug house operations was too distant from the charged offense, witness testimony indicated continuous drug activity without significant interruption. Proximity in time and similarity to the crime are contributing factors for admissibility, but the critical issue remains whether the evidence pertains to relevant issues beyond character. The court has upheld the admission of prior bad acts evidence in past cases when relevant to issues like motive or intent, even without emphasis on timing or similarity.

In 'signature' crimes, the similarity in method between the accused's past and current offenses diminishes the importance of time compared to typical 404(b) cases. Evidence demonstrating motive through a broader plan may include unrelated prior bad acts. In Grandison v. State, evidence from a federal narcotics case was admissible in a state prosecution for hiring a hitman. Proximity in time and similarity are factors, but not prerequisites, for admitting prior bad acts. The admission of previous drug transactions is upheld under various legal standards, including intent and common plan. Drew's prior drug dealings were deemed relevant, regardless of precise timing, especially as they occurred during the charged conspiracy. The Supreme Court's rejection of the 'clear and convincing' standard allows for the admission of evidence if sufficient for a jury finding of prior acts. The District Court appropriately allowed evidence from witness Frank Biondo and did not abuse discretion under either the previous or current standards. Drew's argument that the evidence's probative value was outweighed by unfair prejudice under Rule 403 was dismissed, as the evidence was significant and not unfairly prejudicial. Lastly, Drew's claim of reversible error due to the court's refusal to provide requested jury instructions on witness credibility was also rejected, with the court maintaining discretion over jury instructions as long as they accurately state the law.

The District Court provided specific jury instructions regarding the testimony of witnesses Frank Biondo and Carolyn Tanner (also known as Carolyn Porter), who had received promises from the government not to be prosecuted for past drug-related activities and were receiving expense payments for providing information. The jury was instructed to weigh their testimony carefully, considering the potential influence of these promises and payments. The instructions were deemed adequate to inform the jury of their responsibilities and the risks associated with informer testimony. 

Drew challenged the validity of the jury instructions, claiming they failed to convey that jurors could disbelieve a witness entirely. However, the preliminary instructions explicitly stated that jurors could choose to believe all, part, or none of a witness's testimony, rendering Drew's argument meritless. 

In his appeal, Drew also contested the admission of evidence obtained via a search warrant, arguing it lacked probable cause. The court reiterated the standard that a magistrate's probable cause determination requires a substantial basis to conclude that a search would find evidence of wrongdoing. The warrant was supported by an affidavit detailing two monitored cocaine purchases from Drew, corroborated by a confidential informant's identification of the location as a drug house. Drew's assertion that the affidavit lacked sufficient facts to justify probable cause was dismissed, as it failed to adequately address the evidence presented.

The affidavit's information is deemed sufficient to support a jury conviction for Drew on cocaine trafficking, affirming the magistrate's probable cause for issuing a search warrant. Drew's challenge to this determination is rejected. He also contends that the District Court erred by denying his mistrial request after a tape-recorded conversation inadvertently referenced his prior incarceration. The trial judge provided a curative instruction for the jury to disregard the untranscribed portion. This error is classified as harmless, given that it was unintentional, the judge's prompt instruction, the prosecutor's avoidance of the prior conviction during the trial, and overwhelming evidence of Drew's guilt.

In addressing his sentence, Drew argues that only the quantity of drugs he sold should influence his offense level, as opposed to the larger quantity found at the drug house. However, the District Court's calculation included all drugs and firearms related to the conspiracy, as the Sentencing Guidelines explicitly allow for consideration of the entire quantity associated with the offense of conviction. This inclusion is supported by Section 1B1.3(a)(1) of the Guidelines Manual, which stipulates that all acts related to the offense should be considered in determining the base offense level.

Conduct for which the defendant is accountable includes actions he counseled, commanded, induced, procured, or willfully caused, as outlined in subsection (a)(1) and supported by 18 U.S.C. 2. In conspiracy convictions, this extends to actions in furtherance of the conspiracy that were known or foreseeable to the defendant. The total drug quantity and firearms used in the conspiracy were appropriately included in calculating Drew's offense level. Drew's challenges to his sentence focus on two points: the denial of a two-point reduction for 'acceptance of responsibility' and an upward departure from the Sentencing Guidelines. Both were rejected based on Drew’s attempt to murder a witness, which justified the District Court's decisions. The Guidelines' commentary clarifies that reductions for acceptance of responsibility are not warranted if the defendant obstructs justice, which Drew did not contest regarding the enhancement of his sentence. The District Court's denial of a reduction was therefore deemed appropriate. Additionally, the court found that his attempt to murder a witness constituted an aggravating circumstance not adequately considered by the Sentencing Commission, justifying the upward departure from the Guidelines. This decision was within the court's discretion, as the Guidelines do not sufficiently address the severity of attempting to murder a witness. Consequently, Drew's arguments against his sentence were unsuccessful.

Hampton Stewart appeals his conviction for conspiracy to distribute cocaine under 21 U.S.C. § 846, arguing that the evidence was insufficient for a guilty verdict. The court reviews the evidence favorably to the government. Witness Frank Biondo testified that he purchased cocaine from multiple individuals at the drug house where Stewart lived and worked. Biondo indicated Stewart's primary role involved cooking cocaine from powder to base form. Stewart claimed he was merely seeking shelter during March 1988, but Biondo countered that Stewart had moved into the house in fall 1987 and was actively involved in drug operations.

Biondo described observing Stewart using a scale for weighing drugs and mentioned that Stewart had been seen with a gun, suggesting a protective role regarding drug activities. He confirmed witnessing Stewart cooking cocaine, referred to jokingly as "Rice Krispies." This testimony, along with other evidence of Stewart's activities, supported the jury's guilty verdict for conspiracy to distribute cocaine.

The court affirmed Stewart's conviction and addressed Dennis Drew's appeal of his sentence, also affirming it. The court considered Drew's objection to the government's closing argument, which was deemed generous in presenting the possible uses of the gun. The court noted that the legal assertion made by Drew regarding self-defense was incorrect in various jurisdictions. Drew's other complaints, including those about the trial judge's instructions, did not affect the outcome, as the instructions were seen as more favorable to him.