United States v. Armour ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 13 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. 04-3003
(D.C. No. 03-10079-01-WEB)
CHRISTOPHER ARMOUR, aka (District of Kansas)
Mason Larue,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
PORFILIO, Senior Circuit Judge. **
In a one-count indictment filed on May 7, 2003, in the United States
District Court for the District of Kansas, Christopher Armour (“defendant”) was
charged with possession of more than 50 grams of cocaine base with an intent to
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
Neither party requested oral argument. After examining the briefs and the
appellate record, this three-judge panel has determined unanimously that oral
argument would not be of material assistance in the determination of this appeal.
See Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause is therefore submitted
without oral argument.
distribute in violation of 21 U.S.C. § 841 and 18 U.S.C. §2. On October 1, 2003,
defendant was found guilty of that charge by a jury. Defendant’s post trial
motions for new trial and judgment of acquittal were denied and on December 18,
2003, the defendant was sentenced to imprisonment for 240 months. Trial
counsel represents the defendant in this appeal.
Limited background facts will place the matters raised on appeal in focus.
In early 2002, the Hutchinson, Kansas Police Department initiated a drug
trafficking investigation of a person named Kathy West (“West”). West was
suspected of distributing crack cocaine on the streets of Hutchinson. During
January 2002, Detective Harcrow of the Hutchinson Police Department observed
West engaging in what he believed were street sales of crack. The detective had
seen West in a blue 1978 Cadillac Seville being driven by an African-American
male later determined to be the defendant. The Cadillac was registered in the
name of “Larue Mason,” an alias later determined to be used by the defendant.
In February 2002, Detective Harcrow again encountered the defendant in
connection with his arrest of West. On that occasion, a yellow 1976 Cadillac was
seized at the time of West’s arrest, and that Cadillac was registered to the
defendant, also under the name of “Larue Mason.” Detective Harcrow testified
that the defendant later signed a “property receipt” at the police station using the
name “Larue Mason” when he reclaimed the vehicle from the police. The
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property receipt contained an “innocent owner” warning advising the defendant
that the car had been seized in connection with a narcotic investigation, and the
waiver further went on to state that “I understand that should this property again
be seized, I will waive any innocent owner as a defense.” West was apparently
released after her arrest.
On June 12, 2002, the Hutchinson Police were attempting to find West so
that they could serve her with a federal warrant. Twice on that date, before
serving the warrant, they observed West “doing transactions,” on the street, that
is, “people would go to her car, meet with her for 30 seconds, then she would
drive off.” She was driving a Pontiac Grand Am at this time. The officer stopped
West and arrested her, recovering $1065 in cash from her purse and another
$1500 in cash from a baby stroller in the car’s trunk, and later found crack
cocaine in her vagina.
Detectives later that same day obtained a search warrant for West’s
apartment at 901 E. 12th, Apt. 121. At about 9:25 p.m., having obtained a key for
the apartment from West, the police executed the search warrant. In executing the
search warrant, the police knocked loudly on the door of the apartment and
shouted “Police Department, law enforcement, search warrant.” No one
responded and a few minutes later the officers opened the door with the key given
them by West, where they were met by defendant. Detective Harcrow
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immediately recognized the defendant as the same person he had encountered in
January and February in connection with his investigation of West. The
defendant again identified himself as “Larue Mason” and produced a Kansas ID
bearing the name “Larue Edwards Mason.” However, during the course of the
search, officers found an Oklahoma drivers license bearing the name “Christopher
Larue Armour” and the defendant’s photograph thereon.
In the apartment the officers found crack cocaine and powdered cocaine. A
Clinique cosmetics box was found on the floor of a bedroom closet and inside that
box were 2 baggies containing a total of 78 grams of crack valued at about
$4,500.00 and a set of digital scales. Fingerprints were later found on the
Clinique box, and one of the prints found thereon belonged to the defendant.
On appeal, counsel contends that the district court erred in two particulars:
(1) the district court erred in admitting Detective Harcrow’s testimony concerning
his two encounters with the defendant and West, occurring in January and
February, 2002, and (2) the government’s evidence was insufficient to show that
the defendant “possessed” the cocaine found in West’s apartment on June 12,
2002. We do not agree with either contention and therefore affirm.
Counsel argues that Detective Harcrow’s testimony regarding his
encounters with the defendant and West in January and February, 2002, did not
meet the requirements of Fed. R. Evid. 404(b). The government’s position is that
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the evidence was not offered, or admitted, as 404(b) evidence, but was admissible
as evidence “intrinsic to the crime charged,” citing U.S. v. O’Brien 131 F.3d
1428, 1432 (10th Cir. 1997) (“It is well-settled that Rule 404(b) does not apply to
other act evidence that is intrinsic to the crime charged . . . when the evidence of
the other act and the evidence of the crime charged are inextricably intertwined. .
.”) ; U.S. v. Lambert, 995 F.2d 1006, 1007 (10th Cir. 1993) (“Other act evidence
is intrinsic when the evidence of the other act and evidence of the crime charged
are inextricably intertwined or both acts are part of a single criminal episode or
the other acts were necessary preliminaries to the crime charged. . .”); and U.S. v.
Record, 873 F.2d 1363, 1372 n. 5 (10th Cir. 1989) (“An uncharged act may not be
extrinsic if it was a part of the scheme for which a defendant is being
prosecuted.”). Under the described circumstances, the district court did not err in
admitting Detective Harcrow’s testimony regarding his encounters with the
defendant in January and February, 2002.
Having determined that Detective Harcrow’s testimony concerning his two
encounters with West and the defendant occurring in January and February, 2002,
were “intrinsic to the crime charged in the indictment,” counsel’s suggestion that
there was a “fatal variance” between the evidence offered at trial and the crime
charged in the indictment is unavailing. Defendant was charged with a crime
committed on June 12, 2002. He was not charged with drug violations occurring
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either in January or February, 2002. Acts occurring on those dates were
“intrinsic” to the acts occurring on June 12, 2002. There was no variance
between the charge and evidence adduced at trial. Counsel’s reliance on U.S. v.
Ailsworth, 138 F.3d 843, 848 (10th Cir. 1998) is misplaced. In that case, we
stated that “a variance arises when the evidence adduced at trial establishes facts
different from those alleged in an indictment.” That is not the present case.
Finally, the evidence, in our view, is sufficient to support the jury’s verdict
that the defendant was guilty of the crime charged in the indictment. In this
regard, the defendant was charged with “possession with an intent to distribute”
cocaine on June 12, 2002, and, in that same count, he was also charged with
“aiding and abetting” under 18 U.S.C. § 2. When the defendant was arrested on
June 12, 2002, in West’s apartment, he was the only person in the apartment and
his thumb print was found on the Clinique box containing the cocaine. (At trial,
the defendant called no witnesses, and elected to exercise his constitutional right
not to testify.) Suffice it to say, when all the evidence is considered, there was
sufficient evidence to support the jury’s determination that the defendant
“possessed,” perhaps along with others, the cocaine found in the Clinique box and
that he, and others, namely West, intended to distribute the cocaine. Certainly,
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defendant, at the very least, aided and abetted West.
Judgment affirmed.
ENTERED FOR THE COURT
Robert H. McWilliams
Senior Circuit Judge
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