United States v. Larry Curtis Kerr ( 1998 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 97-4279
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Larry Curtis Kerr, *
* [UNPUBLISHED]
Appellant. *
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Submitted: December 2, 1998
Filed: December 11, 1998
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Before McMILLIAN, LOKEN, and MURPHY, Circuit Judges.
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PER CURIAM.
After a jury found Larry Curtis Kerr guilty of conspiring to possess crack cocaine
with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846, the district
court1 sentenced him to 188 months imprisonment and five years supervised release.
On appeal, Miller challenges his conviction and sentence. We affirm.
1
The Honorable Catherine D. Perry, United States District Judge for the Eastern
District of Missouri.
Kerr and codefendant Byron Miller were involved in a crack distribution ring.
The facts underlying this case are reported in our prior opinion addressing Miller’s
appeal. See Miller v. United States, 135 F.3d 1254 (8th Cir. 1998). As Miller did in
his appeal, Kerr argues that the district court erred in refusing to declare a mistrial after
the following events occurred. At the beginning of the first day of his testimony,
government witness Bryant Troupe was asked how he remembered meeting Kerr in
1989. Troupe responded that he had put up some of Miller’s out-of-town friends,
including Kerr, and had seen them “cook[ing] up cocaine while they were there, you
know, and they made rocks of ounces . . . had it ready to be distributed, because they
were there for like two or three days in [his] apartment.” No objection was made
immediately, but at a later sidebar Kerr’s attorney argued that Troupe’s response
constituted prior bad acts testimony for which the prosecution had not given proper
notice under Federal Rule of Evidence 404(b). Counsel composed an instruction, and
the court directed the jury per that instruction to disregard any testimony regarding drug
activity in 1989. On the following day, Kerr’s counsel moved for a mistrial which the
court denied.
We review for abuse of discretion the denial of a motion for a mistrial. See
United States v. Flores, 73 F.3d 826, 831 (8th Cir.), cert. denied, 518 U.S. 1027
(1996). Initially, we note that in Miller, 135 F.3d at 1256, we concluded that as to
Miller the district court did not abuse its discretion in denying Kerr’s motion for a
mistrial. We now conclude that as to Kerr the district court also did not abuse its
discretion in denying the motion. As we noted in Miller’s appeal, a curative instruction
was given, and Troupe’s testimony regarding the 1989 incident occurred early in the
trial. In addition, there was detailed testimony as to Kerr’s involvement in the
conspiracy, including evidence as to the following. On one occasion in March 1996,
Troupe had seen Miller with “anywhere from three to five kilos” of crack cocaine and
$15,000 to $20,000 in cash. Kerr had been present on that occasion, and on another
occasion that year, Troupe had seen Miller and Kerr turn bricks of powder cocaine into
crack cocaine and then package it into separate small baggies. Troupe also had seen
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two individuals purchase six ounces of cocaine--after which Miller gave the money to
Kerr--and Miller and Kerr had asked Troupe to rent an apartment for them because they
needed a place to store their drugs. In addition, Kerr had been with Miller during a
controlled purchase of two ounces of crack cocaine, and also when Troupe had paid
Miller for another ounce of crack cocaine that Miller had fronted Troupe. At the final
controlled purchase, Kerr had been counting $26,000 given to him by Troupe and an
undercover officer in exchange for crack cocaine when federal agents arrested Kerr and
Miller. As we stated in Miller’s appeal, the reference to the 1989 incident “was
harmless, even if its admission were viewed as error, because its impact on the verdict
would be slight at most.” See Miller, 135 F.3d at 1256.
As to his sentence, Kerr argues that the district court clearly erred in making its
drug-quantity calculation by relying upon the “uncorroborated and specious” testimony
of Troupe. We disagree, because the court was entitled to rely on and assess that
testimony. See United States v. Campos, 87 F.3d 261, 263-64 (8th Cir.), cert. denied,
117 S. Ct. 536 (1996); United States v. Stavig, 80 F.3d 1241, 1245 (8th Cir. 1996);
United States v. Dailey, 918 F.2d 747, 748 (8th Cir. 1990).
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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