United States v. Michael J. Scott , 243 F.3d 1103 ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 99-3182
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United States of America, *
*
Plaintiff - Appellee, *
*
v. *
*
Michael Joseph Scott, also known as *
"Breeze", also known as "News", *
*
Defendant - Appellant. *
___________
Appeals from the United States
No. 99-3330 District Court for the
___________ District of Minnesota.
United States of America, *
*
Plaintiff - Appellee, *
*
v. *
*
Terry Louis, also known as "T-Lou", *
*
Defendant - Appellant. *
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No. 00-1596
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United States of America, *
*
Plaintiff - Appellee, *
*
v. *
*
William Gaynor Pearson, Jr., also *
known as "Mad Bill", also known as *
William Wright, *
*
Defendant - Appellant. *
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Submitted: October 20, 2000
Filed: March 23, 2001
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Before McMILLIAN, BOWMAN, and LOKEN, Circuit Judges.
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LOKEN, Circuit Judge.
Members of a Los Angeles street gang known as the 132nd Street Shotgun Crips
transported cocaine powder from California to the Twin Cities, where they cooked the
powder into crack cocaine and distributed it. After a lengthy investigation that included
wiretaps, seizure of 2,477 grams of cocaine powder from two couriers at the Twin
Cities airport, and undercover purchases of 1,054 grams of crack cocaine, thirteen
conspirators were indicted in July 1998. Nine pleaded guilty to the conspiracy charge,
including leaders William Gaynor Pearson and Michael Joseph Scott. Terry Louis went
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to trial and was convicted of conspiracy to distribute cocaine and use of a telephone to
facilitate drug trafficking for his role in bringing one shipment of cocaine powder from
California to Minnesota. The district court1 sentenced Scott to 225 months in prison,
Pearson to 210 months in prison, and Louis to 151 months in prison. Louis appeals his
conviction, challenging the sufficiency of the evidence, the denial of a continuance, and
the way in which wiretapped conversations were admitted into evidence. Louis also
appeals the supervised release portion of his sentence. Pearson and Scott appeal their
sentences, raising various sentencing issues. We affirm.
I. Terry Louis
A. Louis first argues there was insufficient evidence to convict him of either
participating in a drug trafficking conspiracy or illegal use of a telephone. We will
overturn a jury verdict only if, taking the facts in the light most favorable to the verdict,
no reasonable jury could have found the defendant guilty of the offense beyond a
reasonable doubt. See United States v. Fregoso, 60 F.3d 1314, 1322 (8th Cir. 1995).
“To be found guilty of conspiracy, a defendant must be shown to have knowingly
entered into an agreement with at least one other person to violate the law.” United
States v. Lacey, 219 F.3d 779, 783 (8th Cir. 2000).
Derrick Atkins was a conspiracy leader who recruited couriers in California to
transport cocaine powder to the Twin Cities. Atkins pleaded guilty and appeared as
a government witness at Louis’s trial. Atkins testified that he recruited Louis and
provided him with a kilogram of cocaine to transport from California to Minnesota on
the night of April 1, 1998. After arriving in Minnesota, Louis stayed at a residence
called “Detox” by the conspirators, waiting for Scott to pay the $1000 Louis earned for
his courier services and coordinating his return to California with Atkins by telephone.
1
The HONORABLE ANN D. MONTGOMERY, United States District Court
Judge for the District of Minnesota.
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Atkins’s testimony was corroborated by intercepted phone calls in which conspiracy
leaders discussed their attempts to find Louis at the Twin Cities airport, and by an April
5 telephone conversation between Louis and Atkins in which Louis stated, “business
is handled, and I did my job.” Further corroboration was provided by undercover agent
Kenny Williams, who testified that he purchased crack cocaine from conspirator
Carolyn Owens on other occasions, but on April 3 Owens said she could only sell him
cocaine powder because the “boys just got in” and the powder had not yet been cooked
into crack.
Atkins also testified to Louis’s continuing involvement in the conspiracy. In
May 1998, courier Lennard Graham was arrested at the Twin Cities airport with a
shipment of cocaine powder from California. Graham contacted Louis, who notified
Atkins of Graham’s arrest. During this intercepted phone conversation, Louis said he
switched phones “‘cause I don’t want everybody in our business.” According to
Atkins, Louis also volunteered to transport cocaine to Minnesota by car following
Graham’s arrest, assuring Atkins that he (Louis) would never “run off” with the drugs.
We conclude that Atkins’s testimony, if believed by the jury, was sufficient
evidence of Louis’s knowing participation in at least one of the conspirators’ drug
trafficking transactions and of his use of the telephone to facilitate that transaction. On
appeal, Louis emphasizes the lack of other evidence implicating him in the conspiracy
and notes that Atkins testified as a government witness hoping to receive a downward
sentencing departure. However, Atkins was thoroughly cross examined, and the issue
of his credibility was for the jury. The jury chose to credit Atkins’s testimony, which
was corroborated by other evidence. Thus, substantial evidence supports the jury’s
verdict. See United States v. Maggard, 156 F.3d 843, 847 (8th Cir. 1998).
B. Louis next argues that the district court abused its discretion when it denied
his motion for a continuance to obtain the attendance of a defense witness, California
resident Brett Blackman. “Not the least of [a trial judge’s] problems is that of
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assembling the witnesses, lawyers, and jurors at the same place at the same time, and
this burden counsels against continuances except for compelling reasons.” Morris v.
Slappy, 461 U.S. 1, 11 (1983). We will reverse a district court’s denial of a
continuance only if the court abused its discretion and the moving party was prejudiced
by the denial. United States v. Cotroneo, 89 F.3d 510, 514 (8th Cir. 1996).
Though Blackman had previously spoken with defense counsel by telephone, the
U.S. Marshals Service was unable to serve a subpoena on Blackman by the time the
government rested its case. In support of a continuance until Blackman could be
located, defense counsel advised the court that Blackman would impeach the credibility
of Atkins, the only government witness who had directly implicated Louis in the
conspiracy, by contradicting the following testimony by Atkins on cross examination:
Q. Brett’s a friend and not a member of the conspiracy, isn’t that true?
A. Yes.
Q. And Brett did pass some messages along for you from time to time,
didn’t he?
A. No.
Q. Isn’t it true that you called Brett before you pleaded guilty and told
him to tell your co-conspirators to plead guilty, too?
A. No.
Q. You absolutely didn’t do that? Is that your testimony?
A. Yes.
While impeachment by contradiction is a well-recognized way of attacking a
witness’s credibility, contradiction offered through the testimony of another witness is
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customarily excluded unless it is independently relevant or admissible. See MUELLER
& KIRKPATRICK, MODERN EVIDENCE §§ 6.58, 6.62 (1995). As the Seventh Circuit
stated in United States v. Kozinski, 16 F.3d 795, 806 (1994), “one may not contradict
for the sake of contradiction” by proffering testimony that relates only to collateral
matters. Here, the district court determined that Blackman’s proffered testimony would
have been excluded as relating to a collateral matter -- whether Atkins attempted to
urge his fellow conspirators to plead guilty. We agree with that determination.
Therefore, the court was well within its discretion in denying a continuance of
indefinite duration while the defense attempted to obtain that testimony. See United
States v. Calicutt, 598 F.2d 1120, 1121 (8th Cir. 1979).
C. During Atkins’s testimony, the jury heard audio tapes of intercepted
telephone conversations between members of the conspiracy discussing various aspects
of their drug trafficking activities. Louis argues the district court erred in allowing
Atkins to identify the speakers in these conversations and to interpret the slang and
code words used by the conspirators. We disagree. A district court does not abuse its
discretion in admitting testimony by a witness with firsthand knowledge as to his
understanding of words used by the defendant or other conspirators. See Fregoso, 60
F.3d at 1326; United States v. Franklin, 747 F.2d 497, 498 (8th Cir. 1984). In this
case, Atkins’s leadership role in the conspiracy and his personal relationships with
many conspirators, including Louis, gave Atkins firsthand knowledge of their slang and
code words and the ability to identify the speakers in the intercepted telephone
conversations.2
Louis further complains that Atkins was permitted to use transcripts of the
conversations prepared by the government, while the jury followed along with a copy
2
The court twice instructed Atkins that his testimony regarding the recorded
conversations should be his own interpretation of what the words meant and not what
someone else might understand them to mean.
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of the transcripts. The district court repeatedly instructed the jury that the tapes and not
the transcripts were evidence and that any discrepancies should be resolved in favor of
what they heard on the tapes. This procedure was not an abuse of the court’s
substantial discretion. See United States v. Delpit, 94 F.3d 1134, 1147-48 (8th Cir.
1996); United States v. Britton, 68 F.3d 262, 264 (8th Cir. 1995); United States v.
McMillan, 508 F.2d 101, 105-06 (8th Cir. 1974).
D. Finally, in a motion to supplement the appeal, Louis argues that his sentence
of five years of supervised release exceeds the three-year maximum term authorized
under 18 U.S.C. § 3583(b)(2), and that § 3583(b)(2) applies to his conviction under
Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), because the jury did not make the
drug quantity finding upon which his sentence was based. As this issue was not raised
in the district court, we review for plain error.
In United States v. LeMay, 952 F.2d 995, 998 (8th Cir. 1991), we held that the
maximum-term limitations in 18 U.S.C.§ 3583(b) do not apply when a statute such as
21 U.S.C. § 841(b) expressly authorizes a longer term of supervised release. In United
States v. Bongiorno, 139 F.3d 640, 640-41 (8th Cir. 1998), following LeMay, we
upheld a six-year term of supervised release under § 841(b)(1), rather than the three-
year maximum term under § 3583(b)(2). Thus, even if Apprendi applies to the
supervised release portion of a sentence, there was no plain error under Apprendi in
sentencing Louis to a term of supervised release that did not exceed the maximum term
authorized under 21 U.S.C. § 841(b)(1)(C) (“at least 3 years”), the sentencing statute
that applies in the absence of a specific drug quantity finding. See United States v.
Aguayo-Delgado, 220 F.3d 926, 933-34 (8th Cir. 2000).
II. William Pearson
Pearson and Atkins were conspiracy leaders responsible for the narcotics
activities in California. Pearson’s sole argument on appeal is that the district court
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erred in finding that all of the drugs attributed to the conspiracy -- 1,054 grams of crack
cocaine purchased by an undercover officer in the Twin Cities, and 2,477 grams of
cocaine powder seized at the Twin Cities airport -- were reasonably foreseeable to
Pearson as a California conspirator. “Before a quantity of drugs may be attributed to
a particular defendant, the sentencing court is required to find by a preponderance of
the evidence that the transaction or activity involving those drugs was in furtherance
of the conspiracy and either known to that defendant or reasonably foreseeable to him.”
United States v. Brown, 148 F.3d 1003, 1008 (8th Cir. 1998); see United States v.
Tauil-Hernandez, 88 F.3d 576, 579 (8th Cir. 1996).
This contention was waived because Pearson’s plea agreement provided that the
“base offense level applicable in this case based upon the quantities of cocaine and
cocaine base (‘crack’) is Level 36,” the base offense level used in determining his
sentence. See United States v. Barrett, 173 F.3d 682, 684 (8th Cir. 1999); United
States v. Durham, 963 F.2d 185, 187 (8th Cir.), cert. denied, 506 U.S. 1023 (1992).
In any event, the contention is without merit. In sentencing Pearson, the district court
stated that it had “heard the trial of the other defendants in this case” and found that the
crack cocaine sales in Minnesota were reasonably foreseeable relevant conduct. The
court was entitled to consider relevant evidence introduced at the trial of co-defendant
Louis. See United States v. Fetlow, 21 F.3d 243, 250 (8th Cir. 1994). The testimony
of Atkins at that trial amply demonstrated that the crack cocaine sales, as well as the
cocaine powder seized at the Twin Cities airport, were reasonably foreseeable to
Pearson as a leader of the conspiracy. The district court’s drug quantity finding was
not clearly erroneous.
III. Michael Scott
Scott stipulated in his plea agreement that he played a “leadership role” in a
conspiracy comprised of five or more participants. After an evidentiary sentencing
hearing, the district court found that Scott was a manager or supervisor of the
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conspiracy and imposed a three-level upward adjustment under U.S.S.G. § 3B1.1(b).
On appeal, Scott argues, as he did in the district court, that he was merely a low-level
manager and therefore deserves a two-level adjustment. However, we have repeatedly
held that the Guidelines do not authorize such a compromise adjustment -- if the
criminal activity involved five or more participants, as Scott stipulated, § 3B1.1 permits
either a four-level adjustment, a three-level adjustment, or no adjustment at all. See,
e.g., United States v. Kirkeby, 11 F.3d 777, 778-79 (8th Cir. 1993).
FBI Agent Mento, the lead investigator of the conspiracy, testified at the
sentencing hearing that Scott was “clearly the leader of the [gang] in Minnesota. He
was running all the narcotics activities of the gang in Minnesota, he set prices for
narcotics and directed the actions of numerous individuals in the conspiracy.” This
testimony was based upon numerous intercepted telephone conversations and Mento’s
extensive interviews and dealings with other conspirators. Mento’s testimony was
corroborated by the testimony of Atkins at Louis’s trial. Thus, although Scott testified
that he played a less significant role in the offense and argues that Mento’s testimony
was based upon unreliable information provided by conspirator Carolyn Owens, the
district court’s finding that he was a manager or supervisor is not clearly erroneous.
In a pro se supplemental brief, Scott raises additional sentencing issues. First,
he argues that his counsel provided ineffective assistance at sentencing by failing to
object to the testimony of Agent Mento and by failing to subpoena or require the
government to produce Carolyn Owens for cross examination. As there is not an
adequate record to permit us to consider these ineffective assistance claims on direct
appeal, they must be raised in a post-conviction proceeding under 28 U.S.C. § 2255.
See United States v. Jennings, 12 F.3d 836, 840 (8th Cir. 1994).
Second, Scott attacks the district court’s drug quantity finding, asserting that the
court relied on hearsay testimony of an unreliable witness (Owens), that the court
double-counted quantities of powder and crack cocaine, and that the drugs were not
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reasonably forseeable to him. Like Pearson, Scott waived these contentions by
agreeing to a base offense level of 36 in his plea agreement, “based upon the quantities
of cocaine and cocaine base (‘crack’).” In addition, he failed to object to the drug
quantity finding at sentencing; as the facts summarized earlier in this opinion make
clear, the drug quantity finding, which was based upon the crack cocaine sold to an
undercover agent and the cocaine powder seized at the Twin Cities airport, was not
plain error. See United States v. Karam, 37 F.3d 1280, 1285 (8th Cir. 1994) (standard
of review).
The judgments of the district court are affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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