United States v. Kevin Babb , 874 F.3d 1027 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-1066
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Kevin Babb
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Sioux City
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Submitted: September 22, 2017
Filed: October 31, 2017
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Before LOKEN, ARNOLD, and SHEPHERD, Circuit Judges.
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LOKEN, Circuit Judge.
A jury convicted Kevin Babb of conspiracy to distribute fifty grams or more
of actual methamphetamine and three counts of distributing five grams or more of
actual methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) & (B),
and 846. The district court1 sentenced him to 150 months in prison and 5 years
supervised release. Babb appeals, arguing the district court erred in excluding
evidence of prior convictions during the cross-examination of a government witness
and in refusing to give his requested “buyer-seller” jury instruction. We affirm.
I. Background.
At trial, Drug Enforcement Agency (DEA) Agent David Jensen testified that
in spring of 2014 Tyler Clark, who had a prior felony drug conviction, began working
as a confidential informant after he was caught possessing methamphetamine and a
firearm was found in a warrant search of his residence. Clark identified Mark Taylor
as a middleman who sold methamphetamine for Taylor’s suppliers. The DEA
arranged three controlled buys in which Clark purchased methamphetamine at
Taylor’s residence. On each occasion, DEA agents gave Clark marked money before
he entered Taylor’s home and watched Babb enter and leave the residence while
Clark was there. Clark quickly left the home and immediately delivered the
methamphetamine he had purchased to the waiting agents. Photographs of Babb
outside Taylor’s home at the time of the transactions were admitted into evidence.
A DEA forensic chemist, supported by lab reports, testified that Clark purchased 13.2
grams of 99% pure methamphetamine during the first controlled buy, 7.0 grams of
94% pure methamphetamine during the second, and 55.5 grams of 97% pure
methamphetamine during the third.
Clark testified that he participated in the controlled buys and cooperated with
the DEA in other ways in hopes of obtaining leniency regarding his exposure to drug
and firearm charges. Clark testified that he did not meet Taylor’s supplier during the
three controlled buys. However, on two occasions, Clark saw Babb arrive while
1
The Honorable Leonard T. Strand, United States District Judge for the
Northern District of Iowa.
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Clark was waiting to complete his purchase. Taylor met briefly with Babb in another
room and then exchanged methamphetamine with Clark for the marked money (which
was never found). Taylor testified that he both purchased user amounts of
methamphetamine from Babb and served as Babb’s middleman in selling larger
quantities to third persons, including the controlled buys by Clark. Cooperating
conspirators Theresa Simeon, Ada Thill, and Pete Thill also testified that Babb was
involved in the distribution of methamphetamine. Simeon testified that she supplied
Babb an ounce or more of methamphetamine as often as twice daily for about a year,
and that Babb often ordered methamphetamine when Simeon went to Arizona to
purchase the drug in large quantities. The Thills testified that Simeon stored
methamphetamine at their house and Babb was one of Simeon’s customers. Ada Thill
testified she delivered ounce quantities of methamphetamine to Babb for Simeon on
three or four occasions.
II. The Cross-Examination Issue.
During direct examination, Clark admitted he had a 1999 felony conviction that
exposed him to a substantial sentence if he was convicted of new drug and firearm
offenses. During cross examination, defense counsel sought to impeach Clark’s
credibility by questioning him about escape and drug possession charges in 2001 and
2002 and a theft of stolen property conviction in 2004. The district court excluded
evidence of these convictions because more than ten years had passed since any
confinement and Babb failed to show that “its probative value . . . substantially
outweighs its prejudicial effect.” Fed. R. Evid. 609(b)(1).
On appeal, Babb argues the district court violated his Sixth Amendment right
to meaningful cross-examination when the court did not allow Babb to use these prior
convictions to show that Clark’s motive to testify for the government was to avoid
increased punishment if he was charged with being a felon in possession of the
firearm found in his residence. “[E]xposure of a witness’ motivation in testifying is
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a proper and important function of the constitutionally protected right of cross-
examination.” Davis v. Alaska, 415 U.S. 308, 316-17 (1974). “Where there are facts
that would support a reasonable inference of bias that relates to a witness’s
credibility, the defendant should be permitted to make an effective inquiry into that
bias.” United States v. Jasso, 701 F.3d 314, 316 (8th Cir. 2012). The touchstone of
this inquiry “is whether [Babb] was given an adequate opportunity to impeach the
credibility of [Clark].” United States v. Dale, 614 F.3d 942, 957 (8th Cir. 2010).
Here, the district court noted that “the jury has . . . heard of [Clark’s] felony
marijuana conviction in 1999, and . . . because of that felony conviction Mr. Clark
was not supposed to be in possession of a firearm [and] could have faced substantial
charges. So that point I believe has been made.” This cross-examination gave Babb
the means “to obtain the effect that the excluded examination would have allegedly
established.” Jasso, 701 F.3d at 317. “[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 . . . interrogation that is
repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679
(1986). The district court did not abuse its discretion by limiting cumulative inquiry
into Clark’s well-established motive for cooperating. See United States v. Oaks, 606
F.3d 530, 540 (8th Cir. 2010) (standard of review).
A general way to impeach a witness’s credibility is to introduce evidence of
prior criminal convictions “to afford the jury a basis to infer that the witness’
character is such that he would be less likely than the average trustworthy citizen to
be truthful in his testimony.” Davis, 415 U.S. at 316. Rule 609(a) sets forth “rules
[that] apply to attacking a witness’s character for truthfulness by evidence of a
criminal conviction.” Rule 609(b) severely limits the use of such evidence when the
prior conviction is more than ten years old. Under this Rule, “stale convictions
should be admitted very rarely and only in exceptional circumstances.” United States
v. Stoltz, 683 F.3d 934, 939-40 (8th Cir. 2012) (quotation omitted). Here, Babb
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concedes that the convictions in question were more than ten years old. Clark
admitted that he had a prior felony drug conviction, providing a basis to attack his
“character for truthfulness.” Thus, the district court “acted well within its discretion
when it excluded [Clark’s additional convictions] under Rule 609(b).” Id. at 940.
III. The Buyer-Seller Instruction Issue.
“[P]roof of a buyer-seller relationship, without more, is inadequate to tie the
buyer to a larger [drug] conspiracy.” United States v. Peeler, 779 F.3d 773, 776 (8th
Cir. 2015) (quotation omitted). In United States v. Prieskorn, we held that the district
court erred in declining to give a theory-of-defense, buyer-seller instruction where
there was evidence the defendant-buyer made only one drug purchase, knew only the
seller, and had not ordered the drugs he purchased. 658 F.2d 631, 636 (8th Cir.
1981). On appeal, relying on Prieskorn, Babb argues the district court abused its
discretion by denying his request for “the standard Eighth Circuit instruction on
buyer-seller relationship.” Babb did not include the proposed instruction in the
record on appeal, so this issue was not properly preserved. There is no “standard”
theory-of-defense instruction. The instruction requested in Prieskorn, quoted at 658
F.2d at 636 n.4, would not have helped Babb in this case -- Prieskorn was a drug
buyer, Babb a drug seller. But in any event, the contention is without merit.
We review a district court’s jury instructions for abuse of discretion. United
States v. Tillman, 765 F.3d 831, 834 (8th Cir. 2014). The district court refused to
give the buyer-seller instruction because the evidence showed “multiple transactions
and quantities that are well above user quantities of methamphetamine.” Prior cases
strongly support this ruling. “[A] buyer-seller instruction ‘is not supported by the
evidence and thus not appropriate when there is evidence of multiple drug
transactions, as opposed to a single, isolated sale.’” Id. at 835, quoting from two
earlier decisions. Moreover, Babb’s assertion that the trial evidence showed
“incidental deals between Babb and Taylor” does not accurately reflect the trial
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record. The testimony of Clark and Taylor, supported by contemporaneous DEA
surveillance, showed that Babb made multiple sales of significant quantities of
methamphetamine to middleman Taylor for resale to buyer Clark. The district court
did not abuse its discretion in declining to give a buyer-seller instruction.
The judgment of the district court is affirmed.
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