United States v. Eugene Saunders ( 1998 )


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  •                         United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 98-1306WMJ
    ___________
    UNITED STATES OF AMERICA,                 *
    *
    Appellee,                      * Appeal from the
    * United States District Court
    v.                                  * for the Western District
    * of Missouri, Southwestern
    EUGENE C. SAUNDERS,                       * Division
    *
    Appellant.                     * [UNPUBLISHED]
    ___________
    Submitted: June 9, 1998
    Filed: August 24, 1998
    ___________
    Before RICHARD S. ARNOLD and MORRIS SHEPPARD ARNOLD, Circuit
    Judges, and PANNER1, District Judge
    ___________
    PANNER, District Judge.
    Eugene Saunders appeals from his conviction for conspiracy to distribute cocaine
    base. He challenges the sufficiency of the evidence, raises various evidentiary issues,
    and contends that the district court violated his rights to confront and cross- examine
    his accusers. He also argues that the district court erred in refusing to give several of
    his requested jury instructions. We affirm.
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    The Honorable Owen M. Panner, United States District Judge for the District
    of Oregon, sitting by designation.
    DISCUSSION
    I. Sufficiency of the Evidence
    In December 1996, Stormy Francis, a crack cocaine user, informed Jasper
    County Drug Task Force Officer Tom McCullah that defendant was a supplier of crack
    cocaine. Francis assisted in a controlled purchase of the drug. By dialing his pager
    number from a pay phone, Francis paged defendant to place a drug order. The pager
    was registered to Monica Triplett, who, according to Francis, delivered cocaine for
    defendant. Co-defendant James Barr, who had previously delivered drugs to Francis
    on defendant's behalf, returned the page by calling Francis using defendant's cellular
    phone.
    A few moments later, Barr and co-defendant Keith Brown arrived in a car.
    Francis testified that Brown had also previously delivered drugs to her for defendant.
    The controlled delivery was executed. Later, the substance was confirmed to be crack
    cocaine. Francis testified that during the delivery, she observed Barr and Brown in
    possession of a large amount of cocaine powder and crack cocaine packaged in small
    plastic bags.
    Police attempted to arrest Barr and Brown and a high-speed chase ensued.
    During the chase, a large number of small plastic bags containing cocaine powder and
    crack cocaine were thrown from the car. The chase ended when the car crashed. Barr
    was found with $1,800, $200 of which Francis had just given him. A pager and cellular
    phone were also in the car.
    Francis testified that defendant had been her main supplier of crack cocaine since
    the summer of 1996. She described several specific instances in which she purchased
    crack cocaine directly from defendant, including the night before she contacted
    McCullah. She also identified several people defendant used to make deliveries.
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    McCullah testified that records show that during the car chase, a call was placed
    from the cellular phone to defendant's residence. Brown testified that during the chase,
    Barr called defendant to tell him that "Stormy set us up." The cellular phone service
    was terminated later that day.
    Cheryl Stevens, a.k.a. Cheryl Harbin, testified that she knew defendant and had
    seen him selling crack cocaine. She did not specify a date. She also testified that she
    had seen him with a large amount of crack cocaine and large amounts of cash. She
    admitted that she was currently on probation for selling cocaine, had tested positive for
    cocaine use while on probation, and had written bad checks.
    Brown testified that he had sold crack cocaine on defendant's behalf in
    December 1996 and that he had witnessed defendant answering pages and selling crack
    cocaine. He also observed defendant give Barr a large amount of drugs and later saw
    Barr sell drugs and give the proceeds from the sales to defendant. Brown witnessed
    defendant give Barr the drugs which Barr then sold to Francis. Brown testified that
    defendant had given him a pager with which to conduct drug sales. The pager he
    described was similar to the one confiscated from the car.
    We review the denial of a motion for judgment of acquittal based upon
    sufficiency of the evidence by examining the evidence in the light most favorable to the
    government. United States v. Hester, 
    140 F.3d 753
    , 760 (8th Cir. 1998). To prevail
    in a conspiracy trial, the government must prove that there was an agreement to achieve
    some illegal purpose, that the defendant knew of the agreement, and that the defendant
    knowingly became a part of the conspiracy. United States v. Bass, 
    121 F.3d 1218
    ,
    1220 (8th Cir. 1997).
    Defendant exposed potential weaknesses or biases in several of the government's
    witnesses. In addition to Francis's and Stevens's drug histories, defendant showed that
    Brown's testimony contradicted a previous statement regarding this case that Brown
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    had given to investigators. Defendant also showed that Francis was paid money for her
    participation. Nonetheless, the jury credited the testimony of the government's
    witnesses. Looking at the evidence in a light most favorable to the verdict, and without
    weighing the evidence or assessing the credibility of the witnesses, see, e.g., United
    States v. Hawkey, 
    1998 WL 331182
    , at *1 (8th Cir. June 24, 1998), we conclude that
    the evidence was sufficient to convict defendant of conspiring to distribute crack
    cocaine.
    II. Evidentiary Issues
    A. Sixth Amendment Right to Confront and Cross-Examine
    Defendant argues that the trial court erred in excluding testimony from Stevens
    regarding a shooting incident between her son and defendant. The district court
    sustained the government's objection to this testimony. In his offer of proof, defendant
    stated that Stevens's son shot defendant with a handgun and that there were pending
    first-degree assault charges and armed criminal action charges against Stevens's son..
    Defendant argues that this evidence would have exposed Stevens's bias against him.
    Although the Sixth Amendment's Confrontation Clause guarantees defendant the
    opportunity for effective cross-examination of witnesses against him, including inquiry
    into the witnesses' motivation and bias, it does not
    prevent a trial judge from placing limits on defense counsel's cross-
    examination of government witnesses. . . . [T]rial judges retain wide
    latitude insofar as the Confrontation Clause is concerned to impose
    reasonable limits on such cross-examination based on concerns about,
    among other things, harassment, prejudice, confusion of the issues, the
    witness'[s] safety, or interrogation that is repetitive or only marginally
    relevant.
    United States v. Willis, 
    997 F.2d 407
    , 415 (8th Cir. 1993)(citing Delaware v. Van
    Arsdall, 
    475 U.S. 673
    , 678 (1986)). Absent a clear abuse of discretion and a showing
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    of prejudice to defendant, a district court's ruling limiting cross-examination will not be
    reversed. 
    Id. We need
    not decide whether the district court erred when it excluded the
    evidence that Stevens's son shot defendant because any error was harmless under the
    five factors in Van Arsdall. See Harrington v. Iowa, 
    109 F.3d 1275
    , 1279 (8th Cir.
    1997)(listing factors: (1) importance of witness's testimony to entire case; (2) whether
    testimony was cumulative; (3) whether corroborating or contradicting evidence existed;
    (4) degree of cross-examination actually permitted; and (5) overall strength of
    government's case).
    B. Large Amounts of Money
    Defendant argues that the district court erred in admitting Stevens's testimony
    that she saw defendant with large amounts of cash, because such testimony was
    irrelevant and extremely prejudicial. We reject defendant's argument. See, e.g., Bass,
    121 F.3d at 1221(noting in dicta that presence of large amounts of cash often serves
    to strengthen inference that defendant was distributing contraband).
    C. Barr's Positive Cocaine Test
    Defendant appeals from the district court's failure to allow evidence showing that
    shortly after his arrest, Barr tested positive for cocaine. Defendant argues that if the
    jury had known that Barr was using cocaine, it would have determined that the cocaine
    at issue was Barr's and not defendant's. The fact that Barr had cocaine in his system
    neither proves nor disproves that defendant was the supplier. Without other evidence
    as to the source of the cocaine, the district court properly excluded this evidence.
    III. Jury Instructions
    Defendant appeals from the district court's failure to give four of his requested
    instructions. A defendant requesting a specific instruction is "entitled to an instruction
    that conveys the substance of his request if his request is timely, it is supported by
    5
    evidence in the case, and is a correct statement of the law." United States v. Tucker,
    
    137 F.3d 1016
    , 1036 (8th Cir. 1998). As long as the instructions given adequately
    convey the law, the defendant is not entitled to any particular formulation. 
    Id. A. Defendant's
    Instructions "D," "E," and "F"
    These three instructions would have apprised the jury that mere presence at the
    crime scene or mere knowledge that a crime is being committed is insufficient to find
    defendant guilty of a conspiracy charge. The court rejected these instructions,
    preferring an instruction containing the following:
    You should understand that merely being present at the scene of an event,
    or merely acting in the same way as others or merely associating with
    others, does not prove that a person has joined in an agreement or
    understanding. A person who has no knowledge of a conspiracy but who
    happens to act in a way which advances some purpose of one, does not
    thereby become a member.
    The given instruction, while not as explicit as defendant's requested instructions
    in some respects, adequately and fairly informed the jury of the law relevant to the
    case. The district court did not err by refusing to give defendant's requested
    instructions.
    B. Defendant's Requested Instruction "A"
    This instruction would have informed the jury that Brown was facing a
    mandatory minimum sentence and that the prosecutor could file a motion to reduce that
    sentence based on Brown's substantial assistance. It also stated that Brown hoped to
    receive a reduced sentence in return for his cooperation with the government in
    defendant's case. The instruction made clear that if the government filed a motion to
    reduce the sentence, the ultimate decision was up to the judge.
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    The district court rejected this instruction and instead relied on two others. First,
    the court instructed the jury to consider a number of items in assessing a witness's
    credibility, including any motives that the witness may have for testifying a certain way.
    Next, the court informed the jury that Brown was party to a plea agreement with
    the government and that depending on the extent of his cooperation, the government
    had agreed to move for a downward departure pursuant to the United States Sentencing
    Guidelines. It further informed the jury that it could give Brown's testimony such
    weight as it thought it deserved. The jury was told that it was to determine whether
    Brown's testimony may have been influenced by the plea agreement or the
    government's promise. The instruction made no mention of the mandatory minimum
    sentence Brown faced.
    Defendant maintains that the absence of a reference to the mandatory minimum
    sentence was prejudicial. Defendant's theory is that the jury would have discredited
    Brown's testimony if it had known how much he had at stake. We disagree. The
    instructions given adequately informed the jury of Brown's motives for testifying and
    correctly described the applicable law. The district court did not err in refusing to give
    the requested instruction.
    Affirmed.
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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