United States v. Yankey , 566 F. App'x 742 ( 2014 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS May 13, 2014
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 13-3169
(D.C. No. 6:12-CR-10085-MLB-10)
DESMOND YANKEY, (D. Kan.)
Defendant - Appellant.
ORDER AND JUDGMENT*
Before KELLY, BALDOCK, and HARTZ, Circuit Judges.
Defendant Desmond Yankey was convicted by a jury in the United States District
Court for the District of Kansas on one count of distribution of cocaine. See 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(C). He filed a motion for new trial and a motion for
judgment of acquittal on the ground that there was insufficient evidence to support the
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It may
be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
verdict. The district court denied the motions. Defendant now appeals, arguing that the
evidence at trial was insufficient to support his conviction because (1) witnesses who
identified him as the culprit could not distinguish him from his brother and (2) the white
powder introduced at trial was not scientifically tested or otherwise adequately identified
as cocaine. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
Defendant was indicted on charges of distributing cocaine on November 19, 2010,
and December 9, 2010. He was acquitted on the November charge but convicted on the
December charge. We summarize the evidence on both counts.
On November 19 Wichita Police Department Detective Gary Knowles, acting
undercover, made a purchase through Greg Schmidt, a suspect. Knowles drove Schmidt
to the parking lot at Logan’s Steakhouse. When a gray Mazda registered to Defendant
arrived, Knowles gave Schmidt $800 and Schmidt walked over to the Mazda and then
returned to Knowles’s vehicle. The Mazda departed but soon returned, at which time
Schmidt went to the Mazda again, and returned to Knowles’s vehicle with a plastic baggy
containing “a compressed white powder.” R., Vol. 3 at 33. Knowles recognized the
substance as cocaine. He had been in the drug-trafficking unit for over six years, had
seen cocaine a hundred times before, and had received specialized training in narcotics
investigations. Although Knowles had seen a driver’s license photograph of Defendant,
he was not able to see who was in the Mazda.
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During these events Wichita Police Department Lieutenant Chris Bannister was
conducting surveillance. Bannister had seen Defendant’s driver’s license photo and
obtained his address. He went to that address and saw Defendant get into the Mazda,
drive to an apartment complex, go to and depart from Logan’s Steakhouse, and then drive
to the Old Chicago restaurant, where Bannister saw a dark-colored BMW and a gold
BMW in the parking lot. Defendant entered the dark BMW and then returned to his car
and drove back to Logan’s, where Knowles was waiting. While observing the parking
area at Old Chicago, Bannister had recognized other vehicles that belonged to the federal
Drug Enforcement Administration (DEA). He later learned that they were also
investigating some of the involved parties.
On December 9, 2010, Knowles set up a buy of four ounces of cocaine, this time
working with the DEA. He drove to the Old Chicago parking lot. Schmidt drove
Defendant there. Knowles first got into the back seat of Schmidt’s vehicle, then
Defendant and Knowles went to Knowles’s vehicle and sat next to each other in the front
seat. Knowles was secretly wearing a recording device that captured their conversation.
Knowles and Defendant drove to a gold-colored BMW parked in the lot. DEA agent
Karrina Brasser, who was conducting surveillance, saw Knowles drive by and identified
the man with him as Defendant from his driver’s license photograph. Defendant then left
in the gold BMW with half of the $2900 that Knowles agreed to pay for the four ounces
of cocaine. Knowles testified that this amount was consistent with the market price of
four ounces of cocaine at the time. When Defendant returned, he and a third man got into
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Knowles’s car. Knowles gave the other half of the money to the third man, who gave
Knowles what appeared to be “powder cocaine” and had the “[s]ame consistency” and
“same color” as cocaine. Id. at 50, 52. Knowles noticed that Defendant put several
hundred dollars in his pocket. After obtaining the powder, Knowles used his scales to
confirm that it weighed four ounces. Defendant was arrested about a year and a half
later, on April 5, 2012.
At Defendant’s trial his attorney showed Bannister a photograph of Defendant’s
brother, which Bannister incorrectly identified as Defendant. Knowles, however, had
earlier testified that he did not recognize the person in that photograph, and both Knowles
and Brasser identified Defendant in court as the person they saw on December 9. Brasser
testified that she was aware that Defendant had a brother, that she had studied
photographs of the two to be able to tell them apart, that she had found them to have
different facial structures and to differ in weight by 30 to 40 pounds, and that the person
she saw on December 9 was Defendant, not his brother.
The government offered into evidence part of the recorded conversation between
Defendant and Knowles on December 9. Early in the discussion Knowles said he had
brought scales and wanted to be sure about the weight:
[Knowles]: Well, I want to . . . it was two grams light last time. I just want
to weigh it before I give my money up.
[Defendant]: What was?
[Knowles]: The coke last time.
[Defendant]: Oh, yeah . . .
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Suppl. R., Vol. 1 (Tr. of Gov’t Ex. 4) at 1 (emphasis added). Later Defendant said that he
would bring “the YAO, the shit” to Knowles and that “when you buy drugs that’s the
way it is.” Id. at 3–4. The government did not offer any chemical test, not even a field
test, to show that the substances purchased on November 19 and December 9 were
cocaine.
II. DISCUSSION
“We review sufficiency of the evidence claims de novo, but examine the evidence
in the light most favorable to the government and ask only whether any rational juror
could have found [the defendant] guilty beyond a reasonable doubt.” United States v.
Oldbear, 568 F.3d 814, 822–23 (10th Cir. 2009). “[W]e do not weigh evidence or
credibility; we ask instead only whether the government’s evidence, credited as true,
suffices to establish the elements of the crime.” United States v. Hutchinson, 573 F.3d
1011, 1033 (10th Cir. 2009). “We will only disregard testimony as incredible if it gives
facts that the witness physically could not have possibly observed or events that could not
have occurred under the laws of nature.” United States v. Oliver, 278 F.3d 1035, 1043
(10th Cir. 2001) (brackets and internal quotation marks omitted).
A. Identification of Defendant
Defendant argues that the evidence was not sufficient to show that he was the
person involved in the December 9 transaction. He argues that “Knowles’ identification
of [Defendant] as the participant is derivative of Lt. Bannister’s identification and rests
on only one alleged face to face contact of relative short duration with [Defendant].”
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Aplt. Br. at 11. He also argues that Brasser’s identification was based only on a brief
view of the suspect “from the shoulder up.” Id.
These arguments ask us to do what we cannot—reweigh the evidence and
determine the credibility and reliability of the witnesses. And even if we were to
completely disregard Bannister’s testimony in light of his difficulty differentiating
between pictures of Defendant and his brother, Knowles identified Defendant after they
sat “shoulder-to-shoulder” with each other in his car at least twice on December 9, R.,
Vol. 3 at 43, 46, and Brasser corroborated the identification with her own observations.
We cannot overturn the verdict for lack of sufficient identification evidence.
B. Identification of Cocaine
Defendant also argues that there was insufficient evidence that the substance
exchanged in the December transaction was cocaine. He acknowledges that our
precedent does not require a chemical test of the substance, but he argues that the
“anecdotal” evidence that was presented by the government is not sufficient. Aplt. Br. at
12.
When a chemical substance is not identified by a scientific test, the government
“must [present] enough circumstantial evidence to support an inference that the defendant
actually did possess the drugs in question.” United States v. Hall, 473 F.3d 1295, 1307
(10th Cir. 2007) (internal quotation marks omitted). We have said that such evidence
“may include”:
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[1] Evidence of the physical appearance of the substance involved in the
transaction,
[2] evidence that the substance produced the expected effects when
sampled by someone familiar with the illicit drug,
[3] evidence that the substance was used in the same manner as the illicit
drug,
[4] testimony that a high price was paid in cash for the substance,
[5] evidence that transactions involving the substance were carried on with
secrecy or deviousness, and
[6] evidence that the substance was called by the name of the illegal
narcotic by the defendant or others in her presence.
Id. at 1307–08 (internal quotation marks omitted). Defendant treats this list as if it were a
six-factor test. He argues that evidence of type 2 or 3 was not present and that evidence
of types 1, 4, and 6 was not firmly established. But we have not stated that the evidence
must include all these items, or even any of the specific types listed. See id.
In any event, there was sufficient evidence of the listed types to support a
reasonable juror in finding that the substance involved in the transaction was cocaine.
Knowles, who had special training in narcotics, had been working in narcotics for six
years, and had seen cocaine at least a hundred times before, testified that the substance
looked like cocaine and had the “[s]ame consistency” and “same color” as cocaine. R.,
Vol. 3 at 50. There was also evidence that the price of the substance matched the high
price of cocaine and “that transactions involving the substance were carried on with
secrecy or deviousness.” Hall, 473 F.3d at 1307 (internal quotation marks omitted).
Moreover, in the conversation between Defendant and Knowles, Knowles referred to the
substance they had been dealing with as coke; and when there was a disagreement about
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how the transaction would be executed, Defendant said, “[W]hen you buy drugs that’s
the way it is.” Suppl. R., Vol. 1 (Tr. of Gov’t Ex. 4) at 4.
This evidence is sufficient to sustain the verdict. See United States v. Castaneda,
368 F. App’x 859, 861, 863 (10th Cir. 2010) (defendant discussed cocaine transaction in
intercepted telephone call, and an officer believed the substance was cocaine); United
States v. Sanchez, 722 F.2d 1501, 1506 (11th Cir. 1984) (DEA agent testified that he
believed substance was cocaine and participants in transaction called the substance
cocaine); cf. United States v. Sanchez DeFundora, 893 F.2d 1173, 1175–76 (10th Cir.
1990) (evidence was sufficient to show substances were cocaine even though no cocaine
was actually introduced into evidence; witnesses testified that they ingested substances
that affected them like cocaine and that they were able to resell some substances as
cocaine).
III. CONCLUSION
We AFFIRM the district court.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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