United States v. Casey Peebles , 883 F.3d 1062 ( 2018 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-1126
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United States of America
Plaintiff - Appellee
v.
Casey Peebles
Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: December 15, 2017
Filed: March 5, 2018
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Before SMITH, Chief Judge, KELLY and ERICKSON, Circuit Judges.
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ERICKSON, Circuit Judge.
A jury convicted Casey Peebles of two offenses for his participation in a drug
trafficking conspiracy. Peebles appeals the district court’s1 denial of his motion for
1
The Honorable E. Richard Webber, United States District Judge for the
Eastern District of Missouri.
judgment of acquittal as well as a number of evidentiary rulings. For the reasons that
follow, we affirm.
I.
Following a five-day trial, a jury convicted Peebles of conspiracy to distribute
100 grams or more of heroin in violation of 21 U.S.C. §§ 841(a)(1) and 846 and
possession with the intent to distribute 100 grams or more of heroin in violation of
21 U.S.C. § 841(a)(1). We recount the pertinent evidence in the light most favorable
to the verdict.
In 2013, the St. Louis Metropolitan Police Department was investigating the
distribution of narcotics out of an apartment located at 5911A Highland Avenue. The
investigation revealed that two brothers, Joseph and Thomas Rander, were among the
leaders of an organization moving cocaine, marijuana, and heroin from the San
Bernardino, California, area to St. Louis, Missouri, for distribution. An informant,
who began cooperating with law enforcement officers following his arrest, had
advised investigators that members of the organization preferred to use young female
couriers to transport the narcotics as they were less likely to draw the attention of law
enforcement. The informant also told law enforcement that the organization had
recently received and was distributing a kilogram of heroin out of 5911A Highland
Avenue.
Armed with this information, law enforcement began surveilling the Highland
Avenue apartment building during the late evening hours on April 2, 2013. Just
before midnight, the officers observed a dark-colored Land Rover drive up, and a
male (later identified as Peebles) get out of the driver’s side door. The man walked
into the apartment building. A short time later, they saw the man leave the building
while holding a bulky object in the right side of his coat and get back inside the Land
Rover.
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The informant was inside the apartment while the officers were stationed
outside. He relayed to law enforcement what happened after Peebles entered the
apartment. The officers briefly followed the Land Rover before stopping it. Law
enforcement officers encountered Peebles, Vernon Westcott (Peebles’s cousin), and
Leah Douglas inside the vehicle. Upon approaching the vehicle, Detective Blake
Witzman observed Douglas, who was seated in the rear passenger seat, with her right
hand and arm down the front of her pants.
When the initial search did not reveal any heroin, the officers called for a
female officer to search Douglas more thoroughly. Officer Erin Becherer arrived at
the scene and conducted the search of Douglas. Officer Becherer discovered Douglas
was concealing a bag containing 247.3 grams (8.723 oz.) of a substance containing
heroin. At nearly the same time, another officer arrived with his trained drug-sniffing
dog. During a walk-around, the dog alerted to the area near where Douglas had been
seated. Douglas, Westcott, and Peebles were arrested and transported to the Drug
Enforcement Administration building for questioning.
Douglas was originally somewhat deceptive during the interview, telling task
force officers that she had stolen the heroin from her boyfriend, who was not Peebles
or Westcott. By the time of trial, however, Douglas was cooperating and testified that
she was dating Peebles at the time of the stop. She explained that she often
accompanied Peebles and was asked to hold narcotics for him as they traveled around
to distribute the drugs. Douglas testified that on April 2, 2013, she was with Peebles
when he drove to the apartment building on Highland Avenue and that Peebles went
inside the building for about ten to fifteen minutes. Douglas said that after Peebles
drove away, Peebles commented about the police following them, stating “Here come
them boys, Cuz.” Douglas testified that as Peebles was removed from the vehicle,
Westcott handed heroin to Douglas and she hid it in her pants.
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At trial, the informant testified about what he observed on April 2, 2013. He
told the jury that he saw a male get out of the driver’s side door of a dark-colored
Land Rover, enter the apartment, and get heroin from Joseph Rander. After Rander
delivered the heroin, the informant let the male out of the apartment and the male
returned to the Land Rover. The informant did not know the name of the man on the
night in question, but identified Peebles in the courtroom as the male he saw that
night.
Over Peebles’s objection, the informant testified to various statements made
on April 2nd by Joseph Rander, including that Rander told the informant to “work the
door,” or provide security at the apartment while Rander distributed the heroin. The
informant also relayed the following additional statements concerning his interactions
with Rander:
• “He said Twin people fit’n to come through, we fit’n to be on, we fit’n
to be back together.”
• “Well, he had got a call, he had got a call from him telling him he was
about to pull up; so he had told me to go to the door.”
• “When he had left after I had notified the police that he had got the
drugs and left, when I had went back upstairs, that’s when Joseph
Rander had told me he had gave him 9 ounces, he had fronted him.”
After the close of evidence, Peebles moved for a judgment of acquittal, arguing
the government presented insufficient evidence for a jury to convict him of either
charged offense. The district court denied the motion, and the jury found Peebles
guilty of both offenses. The district court sentenced Peebles to concurrent 120-month
terms of imprisonment on each count.
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II.
A. Sufficiency of the Evidence
Peebles first argues that the government presented insufficient evidence to
sustain the convictions. We review the denial of a motion for judgment of acquittal
de novo and will affirm unless, viewing the evidence in the light most favorable to the
government and accepting all reasonable inferences which may be drawn in favor of
the verdict, no reasonable jury could have found the defendant guilty. United States
v. Chatmon, 742 F.3d 350, 352 (8th Cir. 2014). We must uphold the verdict “[i]f
there is an interpretation of the evidence that would allow a reasonable-minded jury
to find the defendant guilty beyond a reasonable doubt[.]” United States v. Huyck,
849 F.3d 432, 441 (8th Cir. 2017).
To convict Peebles for conspiracy to distribute more than 100 grams of heroin,
the government had to prove: “(1) the existence of an agreement among two or more
people to achieve an illegal purpose, (2) the defendant’s knowledge of the agreement,
and (3) that the defendant knowingly joined and participated in the agreement.”
United States v. Whirlwind Soldier, 499 F.3d 862, 869 (8th Cir. 2007). The
informant testified that he personally witnessed Rander deliver heroin to Peebles
inside an apartment at 5911A Highland Avenue. Peebles’s girlfriend at the time
testified as to Peebles’s involvement in distributing heroin and the events that
occurred on April 2, 2013. Their testimony is consistent with the law enforcement
officers’ observations of Peebles on the night of August 2, 2013, as well as
information that the officers had learned during the course of their investigation of
the drug trafficking organization.
The fact that key testimony was provided by cooperating co-conspirators does
not undermine the sufficiency of the evidence, as the jury is presumed to take that fact
into consideration when determining the credibility of the witnesses. United States
v. Coleman, 525 F.3d 665, 666 (8th Cir. 2008) (citing United States v. Velazquez,
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410 F.3d 1011, 1015–16 (8th Cir. 2005)) (“We have repeatedly upheld jury verdicts
based solely on the testimony of co-conspirators and cooperating witnesses, noting
that it is within the province of the jury to make credibility assessments and resolve
conflicting testimony.”). Viewing the evidence in the light most favorable to the
verdict, the evidence was more than sufficient to establish that Peebles was a member
of a conspiracy to distribute heroin.
To establish that Peebles possessed heroin with the intent to distribute, the
government must prove the defendant knowingly possessed the heroin and he
intended to distribute it. United States v. Trejo, 831 F.3d 1090, 1094 (8th Cir. 2016).
A person who, although not in actual possession, has both knowledge of presence and
control over a thing, either directly or through another person, is in constructive
possession of it. United States v. Johnson, 18 F.3d 641, 647 (8th Cir. 1994).
Evidence at trial established that Rander fronted a quarter kilogram of heroin
to Peebles and that Peebles took physical possession of the heroin. This evidence,
along with its reasonable implications, is sufficient to sustain the conviction.
Moreover, during the traffic stop, officers found the heroin on Douglas, who testified
that Peebles frequently gave her drugs to hold in order to minimize Peebles’s chances
of arrest. This evidence when coupled with Peebles’s presence and conduct at 5911A
Highland Avenue was more than sufficient to establish Peebles’s constructive
possession of the heroin.
As to the second element, an intent to distribute may be established solely by
the quantity of drugs. United States v. Serrano-Lopez, 366 F.3d 628, 635 (8th Cir.
2004). The amount in question was a quarter kilogram (nearly nine ounces) of heroin
with a purported street value of $15,000 to $18,000. This quantity supports the jury’s
finding that Peebles possessed with intent to distribute 100 grams or more of heroin.
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B. Evidentiary Rulings
1. Co-Conspirator Statements
Peebles argues that the district court erred in admitting statements made by
Rander. An out-of-court statement “offered against an opposing party” that “was
made by the party’s coconspirator during and in furtherance of the conspiracy” is not
hearsay. Fed. R. Evid. 801(d)(2)(E). We review the district court’s admission of out-
of-court statements “under Rule 801(d)(2)(E) for an abuse of discretion, ‘keeping in
mind that its discretion is particularly broad in a conspiracy trial.’” United States v.
Young, 753 F.3d 757, 771 (8th Cir. 2014) (quoting United States v. Davis, 457 F.3d
817, 824–25 (8th Cir. 2006)) (citations omitted). Peebles claims the testimony was
inadmissible because the evidence did not support a finding that he was a member of
the charged conspiracy or that the statements were anything other than idle chatter.
We have concluded that the evidence was sufficient to establish Peebles’s
membership in the charged conspiracy. We now review for clear error the district
court’s finding that a statement was made in furtherance of a conspiracy. United
States v. Beckman, 222 F.3d 512, 522–23 (8th Cir. 2000).
“It is well-established that an out-of-court declaration of a coconspirator is
admissible against a defendant if the government demonstrates (1) that a conspiracy
existed; (2) that the defendant and the declarant were members of the conspiracy; and
(3) that the declaration was made during the course and in furtherance of the
conspiracy.” United States v. Bell, 573 F.2d 1040, 1043 (8th Cir. 1978); see also Fed.
R. Evid. 801(d)(2)(E). For the reasons explained above, the government presented
ample evidence that Peebles was a member of a drug trafficking conspiracy engaged
in the distribution of heroin in the St. Louis area. The government also presented
ample evidence that Peebles was a member of the conspiracy with Rander, the
informant, and Douglas. Finally, the statements at issue, including that “Twin people
fit’n to come through . . . [and] be back together”; that Rander directed the informant
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to “work the door” when Peebles showed up to get the heroin; and that Rander told
the informant that he fronted Peebles nine ounces of heroin, were undoubtedly
statements made in furtherance of the drug trafficking conspiracy. The district court
did not abuse its discretion in admitting the out-of-court statements under Fed. R.
Evid. 801(d)(2)(E).
2. Impeachment by a Prior Conviction
We ordinarily review for abuse of discretion when considering whether
evidence concerning a prior conviction was properly admitted for impeachment
purposes. United States v. Levine, 700 F.2d 1176, 1182 (8th Cir. 1983). However,
when a defendant preemptively introduces evidence of a prior conviction on direct
examination, he may not argue on appeal that the admission of such evidence was
error. Ohler v. United States, 529 U.S. 753, 759–60 (2000). Peebles chose to
preemptively introduce his burglary conviction from 2014 during direct examination
and thus is precluded from raising this issue on appeal.2
3. Use of Law Enforcement Officer as Drug Trafficking Expert
We review a district court’s decision to admit expert testimony “for abuse of
discretion, according it substantial deference.” United States v. Holmes, 751 F.3d
846, 849 (8th Cir. 2014). Peebles raises two issues related to the expert testimony of
Officer Edward Clay, who testified concerning the modus operandi of drug
trafficking operations. First, he argues that the district court did not conduct an
independent evaluation of the reliability of Officer Clay’s testimony but instead relied
on general precedent allowing admission of testimony by expert witnesses in federal
drug prosecutions. We have recognized that the “relevant reliability concerns may
2
Even if we were to consider the argument, Peebles has failed to demonstrate
the conviction was inadmissible under Fed. R. Crim. P. 609.
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focus upon personal knowledge or experience rather than scientific foundations.” Id.
at 850 (quotations omitted). Officer Clay’s extensive service record related to drug
investigations, consisting of twenty-eight years of law enforcement experience and
hundreds of narcotics investigations, makes plain that his testimony based on
experience was reliable and would have satisfied a more detailed, individualized
evaluation. Under these circumstances, the district court’s decision to permit his
testimony was not an abuse of discretion.
Second, Peebles argues that Officer Clay’s testimony that drug traffickers have
a preference to use young female couriers without extensive criminal histories was
impermissible drug courier profile testimony. We have previously disallowed the
introduction of drug courier profiles as substantive evidence because it “involves
nothing more than the introduction of investigative techniques that law enforcement
officers use to identify potential drug couriers.” United States v. Schwarck, 719 F.3d
921, 924 (8th Cir. 2013). We have serious reservations that Officer Clay’s testimony
is drug courier profile evidence. Douglas’s testimony detailing her role in the
conspiracy was already before the court. Officer Clay provided background
information explaining the habits of drug traffickers and couriers. His testimony was
likely admissible as modus operandi evidence. See United States v. Jeanetta, 533 F.3d
651, 657–58 (8th Cir. 2008) (if the importance of evidence “would not necessarily be
apparent to a lay observer,” expert testimony may be necessary to explain its
significance in “the world of drug dealing”).
Even if we accepted Peebles’s characterization, the evidence was admissible.
Our exclusionary rule was designed to protect criminal defendants from being
identified as drug couriers merely based on their profile. Similar concerns are not
present when the evidence is offered to establish that someone other than the
defendant was potentially a drug courier–as in this case, where the evidence was
offered to establish that Douglas fit the profile of a drug courier. Additionally, any
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error in allowing Officer Clay’s testimony would be harmless due to Douglas’s direct
testimony about her role as a courier for Peebles .
4. Limitation of Cross-Examination Regarding Past Instances of
Untruthfulness
Finally, Peebles asserts the district court erred when it precluded him from
questioning two police officers, who were part of the group of drug task force officers
assigned to monitor 5911A Highland on April 2nd, about their involvement in the
2006 World Series Ticket Scandal. Federal Rule of Evidence 608(b) provides that
the district court has discretion when determining if a specific instance of witness
untruthfulness may be inquired into on cross-examination. Cross-examination may
be limited or denied if the probative value of the evidence is “substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or needless presentation
of cumulative evidence.” United States v. Beck, 557 F.3d 619, 621 (8th Cir. 2009).
A limitation on cross-examination does not violate the Sixth Amendment’s
Confrontation Clause unless the defendant demonstrates that a reasonable jury might
have received a significantly different impression of a witness’s credibility if counsel
had been allowed to pursue the proposed line of cross-examination. United States v.
Jones, 728 F.3d 763, 766 (8th Cir. 2013). We have previously affirmed exclusion of
the very evidence Peebles sought to introduce in this case. Beck, 557 F.3d at 620–21.
While questioning the officers about the scandal may have held some probative
value, in light of the nature of the officers’ testimony and the corroboration of their
testimony by Special Agent Witzman it is unlikely a reasonable jury would have
“received a significantly different impression” of their credibility if the evidence had
been allowed.
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III.
For the foregoing reasons, we affirm Peebles’s convictions.
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