United States v. Carmen Haire ( 2015 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-2998
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Carmen Haire
lllllllllllllllllllll Defendant - Appellant
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No. 14-3196
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
George Lee
lllllllllllllllllllll Defendant - Appellant
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Appeals from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: September 22, 2015
Filed: November 23, 2015
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Before MURPHY, MELLOY, and SMITH, Circuit Judges.
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MURPHY, Circuit Judge.
Agents from the Drug Enforcement Administration (DEA) overheard George
Lee making statements on a wiretapped phone about the shipment of cocaine and
marijuana from Houston to distributors in St. Louis. Carmen Haire was arrested on
his way to Houston with over $33,000 of cash that he was carrying to Lee. After a
jury trial Lee was convicted of conspiracy to distribute cocaine and marijuana,
conspiracy to launder the proceeds of drug trafficking, and possession of a firearm in
furtherance of a drug trafficking crime.1 Haire was convicted of conspiracy to
launder the proceeds of drug trafficking. Lee appeals, challenging the foundation for
the wiretap recordings, the admission of expert testimony interpreting language used
on the recordings, and the admission of statements mentioning drug cartels. Haire
also appeals, challenging the admission of statements made by his coconspirators, the
jury instruction on willful blindness, and the sufficiency of the evidence supporting
his conviction. We affirm.
I.
In November 2011 DEA agents learned that Juan Williams was supplying
cocaine to a drug dealer in St. Louis. In January 2012 postal inspectors intercepted
a package sent from Houston to St. Louis containing 3 kilograms of cocaine and
1
The Honorable Catherine D. Perry, Chief Judge, United States District Court
for the Eastern District of Missouri.
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arrested the intended recipient, Carl King. In King's possession were two phones that
had been in contact with cell phones used by Williams. DEA agents applied for and
received a Title III warrant to wiretap Williams's phones and later received a warrant
to wiretap Lee's phone. See 18 U.S.C. § 2518.
During the wiretapped conversations Lee arranged to ship drugs to Williams
and to other distributors in Mississippi and South Carolina. Lee discussed the price
of the cocaine and how much money he was owed. Lee also called his own suppliers
to order cocaine.
In April 2012 the DEA learned from the wiretap that Williams and Jamiel
Johnson were bringing cash from St. Louis to Lee in Houston. The DEA had local
police stop the car. A search of the car revealed a hidden compartment containing
$69,910 in a vacuum sealed plastic bag. Although police seized the money, Williams
and Johnson did not realize it until after they were released and checked the
compartment. Williams called Lee to discuss the stop and the missing money. Lee
in turn called an unnamed man to ask for advice. Later that month the DEA learned
that Lee was mailing a package to South Carolina. Police obtained a search warrant
and intercepted the package, which contained 3 kilograms of cocaine, crack cocaine,
and marijuana. After the intercept Lee made a phone call to discuss retrieving the
package from the post office, presuming that there was a problem with the delivery.
Johnson testified at trial about other shipments of cocaine and marijuana that Lee had
sent to Williams in exchange for cash. Johnson personally saw Williams receive a
total of over 10 kilograms of cocaine and over 100 pounds of marijuana from Lee.
In May 2012 Lee and Williams made a series of phone calls about sending
Haire from St. Louis to Houston with "sealed up" money. Williams was to get him
a one way train ticket to Houston, and Lee would purchase a one way plane ticket
back to St. Louis. Williams spelled Haire's name for Lee so he could purchase the
plane ticket and then called Haire to get his date of birth. Lee and Williams also
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discussed giving Haire a phone to use during the trip. In these conversations,
Williams referred to Haire as his uncle or "Unc," and said he had "already told him
the deal" and that Haire "already [knew] what's going on." Lee stated that "Unc 100,"
meaning that Haire was reliable or solid. At trial Johnson identified Haire as
Williams's uncle and testified that Williams said that he had paid Haire to receive
packages of drugs at Williams's father's address.
On June 1, 2012 a DEA agent spotted Haire boarding a train in St. Louis
carrying a black backpack. Early the next morning at the train station in Longview,
Texas, where passengers bound for Houston transfer to a bus, DEA officer Chad
Lanier saw Haire anxiously looking at a drug sniffing dog. Lanier stopped Haire as
he attempted to board a bus to Houston. Lanier said he was looking for a possible
terrorist, and asked Haire if he was carrying any narcotics or large sums of currency.
Haire said he had a little bit of money, and pulled a roll of about ten $20 bills out of
his pocket. Lanier asked if he had any more money in his bag and Haire replied,
"Yeah, I do have a little bit of money." When asked how much, Haire first stated that
he had a few thousand dollars, but then clarified that he had $25,000. Haire told
Lanier that the money was his and that he was going to buy a car.
Lanier obtained Haire's consent to search his backpack, which contained
clothing and two nested vacuum sealed plastic bags containing rubber banded stacks
of bills totaling $33,530. A canine alerted to an odor of narcotics on the backpack,
and the currency smelled of marijuana when officers later opened the sealed bags.
The DEA seized the currency. After the dog alerted on the backpack, Haire told
Lanier that he smoked marijuana but did not have any on him. Haire also changed
his story about planning to buy a car, stating that he was going to fly back to St. Louis
instead. Later that day Williams called Lee to report that "they hit Unc" and relayed
what Haire had told him about the stop and seizure.
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In February 2013 the DEA obtained a seizure warrant for Lee's car. When
agents executed the warrant Lee gave them consent to search his house, where they
found marijuana, electronic scales, $5,000 in currency, chemicals used to dilute
cocaine, and several firearms.
Lee and Haire were each indicted for conspiracy to distribute cocaine and
marijuana, 21 U.S.C. §§ 841, 846, and conspiracy to launder the proceeds of drug
trafficking, 18 U.S.C. § 1956. Lee was also indicted for possessing a firearm in
furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A). Williams, Johnson,
and King were also charged with conspiracy to distribute drugs and pled guilty. The
jury found Lee guilty of all charges and found Haire guilty of the money laundering
charge but not guilty of the distribution charge. The district court sentenced Lee to
240 months imprisonment and Haire to 36 months imprisonment. Lee and Haire now
appeal their convictions.
II.
Lee contends that the district court improperly admitted the wiretapped phone
conversations because the government failed to authenticate the recordings. See Fed.
R. Evid. 901(a). Our review is for clear abuse of discretion. United States v. Henley,
766 F.3d 893, 912 (8th Cir. 2014). Admission of wiretap recordings is likely proper
if the government establishes that: (1) the device was capable of recording the
statements; (2) the operator was competent to operate the device; (3) the recordings
are authentic and correct; (4) changes have not been made; (5) the recordings have
been preserved; (6) the speakers are identified; and (7) the conversation was
voluntary. Id. (citing United States v. McMillan, 508 F.2d 101, 104 (8th Cir. 1974)).
We have explained that these McMillan factors are merely helpful guidelines and
must be viewed in light of the circumstances rather than rigidly applied. Id.-5-
The very fact that the recordings in this case exist establishes that the device
was capable of recording conversations, United States v. McCowan, 706 F.2d 863,
865 (8th Cir. 1983) (per curiam), and the fact that the operator successfully made the
recordings satisfies the competency requirement, United States v. Franklin, 747 F.2d
497, 498 (8th Cir. 1984) (per curiam). At trial DEA special agent Brett Johnson
identified the speakers on the recordings and testified about the equipment used by
the DEA to make unalterable recordings of each conversation. That testimony and
the fact that nothing showed the recorded conversations were other than voluntary
satisfies the remaining McMillan factors. See United States v. Roach, 28 F.3d 729,
733 (8th Cir. 1994). Given Johnson's testimony and the absence of any evidence
indicating that the recordings were not authentic, the district court did not abuse its
discretion in admitting them into evidence.
Lee next argues that the district court abused its discretion in allowing special
agent Johnson to give expert testimony about the meaning of drug related terms used
by Lee and his coconspirators on the recordings. See Fed. R. Evid. 702. It is "well
established that experts may help the jury with the meaning of jargon and codewords"
used by drug dealers. United States v. Delpit, 94 F.3d 1134, 1145 (8th Cir. 1996).
Lee concedes that Johnson was qualified to interpret terms and phrases used on the
recordings that were "common drug terminology," but contends that Johnson was not
an expert with respect to certain phrases that were "specific only to this case." Lee
fails to cite a single example of Johnson's testimony that was improper. Because his
failure to cite to the record does not comply with Fed. R. App. P. 28(a)(8)(A), see
United States v. Ali, 799 F.3d 1008, 1026 n.3 (8th Cir. 2015), and because our review
of the record indicates that special agent Johnson applied his expertise to help the jury
understand recordings that were permeated with drug jargon, United States v.
Placensia, 352 F.3d 1157, 1164–65 (8th Cir. 2003), we conclude that the district court
did not abuse its discretion in admitting Johnson's testimony.
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Lee finally asserts that the district court abused its discretion in admitting
testimony about "drug cartels and Colombians" which he claims was prejudicial.
Notwithstanding his failure to cite to particular statements in the record, Lee appears
to focus on two recordings in which he himself stated that he knew someone who
"know[s] cartel members" and described his attempts to connect with Colombians
whom he was willing to pay extra for their purer cocaine. Lee's statements were
admissible non hearsay because they were statements by a party opponent. Fed. R.
Evid. 801(d)(2)(A). Lee argues that the drug cartel evidence was not admissible
because it was meant to prejudice him or prove his guilt by association with the
cartel, see United States v. McKay, 431 F.3d 1085, 1093 (8th Cir. 2005), but that was
not the case here. Lee's statements indicated his knowing and active participation in
a conspiracy to distribute cocaine and were thus relevant to the charges he faced. See
United States v. Ellison, 616 F.3d 829, 833–34 (8th Cir. 2010). Given the strength
of the government's evidence there was little risk that the statements would cause the
jury to find him guilty solely because of any affiliations with the cartel. See id. We
conclude that the trial court did not abuse its discretion in admitting these portions
of Lee's wiretapped statements.
III.
Haire contends that the district court abused its discretion by admitting portions
of the wiretapped conversations between Lee and Williams and portions of Johnson's
testimony. Federal Rule of Evidence 801(d)(2)(E) permits the government to admit,
as nonhearsay, statements made by a coconspirator of a defendant "during and in
furtherance of the conspiracy." In order to do so, the government must prove by a
preponderance of evidence "that a conspiracy existed, that the defendant and
declarant were members of the conspiracy, and that the statements were made during
and in furtherance of the conspiracy." United States v. Williams, 87 F.3d 249, 253
(8th Cir. 1996). The district court conditionally admitted the evidence pursuant to
United States v. Bell and then at the close of evidence made a finding that the
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government had proven each prerequisite by a preponderance of the evidence. See
573 F.2d 1040, 1044 (8th Cir. 1978). We review the decision to admit coconspirator
statements for abuse of discretion, and have stated that a district court's discretion is
particularly broad in conspiracy trials. United States v. Young, 753 F.3d 757, 771
(8th Cir. 2014).
Haire does not dispute that the statements Lee and Williams made to each other
about his trip to Texas were made during and in furtherance of a conspiracy to
launder the proceeds of drug trafficking. He contends only that the government
produced insufficient evidence showing that he was a member of that conspiracy or
any conspiracy at all. To determine whether the government has established that a
defendant was a member of a conspiracy, a district court may consider the content of
the proffered coconspirartor statements so long as a statement does not provide the
sole evidence of its own admissibility. United States v. Roach, 164 F.3d 403, 409
(8th Cir. 1998).
The statements Haire challenges, in which Lee and Williams plan his trip to
Texas and discuss his stop by law enforcement, are each strong evidence that he was
a member of the conspiracy. The wiretapped statements made prior to the trip are
reinforced by the statements made after the stop, and vice versa. The statements are
also reinforced by the evidence obtained in Texas. After Lee and Williams discussed
sending "Unc" to Texas with drug money, Haire traveled from St. Louis to Texas,
acted suspiciously around law enforcement, and was found with a large amount of
cash in a vacuum sealed bag. Johnson's testimony that Haire was involved in
Williams's drug dealing operation also supports a finding that he was a member of a
conspiracy to launder the proceeds. Finally, it is irrelevant whether the allegedly
inadmissible statements occurred before Haire actually joined the conspiracy, because
the conspiracy "existed at the time the statements were made." United States v.
Tremusini, 688 F.3d 547, 555 (8th Cir. 2012). The district court did not abuse its
discretion in determining that a preponderance of evidence showed that Haire was a
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member of the conspiracy and thus admitting the wiretapped statements that mention
him.
Johnson's testimony that Williams had said that he used Haire to receive
packages of drugs was made in furtherance of the charged conspiracy to distribute
drugs because it identified Haire's role and the method by which Williams was
shipping the drugs. See United States v. Ragland, 555 F.3d 706, 713 (8th Cir. 2009).
Johnson's testimony supports a finding that Haire was a member of that conspiracy.
The wiretapped statements regarding the trip to Texas and Haire's actions in
transporting the sealed cash also support a finding that he was a member of the
conspiracy to distribute drugs. Haire was acquitted of the distribution charge, but
"there is nothing inherently inconsistent" in the district court concluding that Haire's
participation in the conspiracy had been proved by a preponderance of the evidence
and the jury later concluding that his guilt had not been proved beyond a reasonable
doubt. United States v. Patino-Rojas, 974 F.2d 94, 96 (8th Cir. 1992). The district
court did not abuse its discretion in admitting Johnson's testimony.
Haire next argues that the district court erred by giving a willful blindness
instruction that the jury could find that he acted knowingly if it found beyond a
reasonable doubt that he "believed there was a high probability that the currency in
his suitcase involved some form of illegal activity and that he took deliberate actions
to avoid learning of that fact." We review the decision to give a willful blindness
instruction for abuse of discretion. United States v. Aleman, 548 F.3d 1158, 1166
(8th Cir. 2008). A willful blindness instruction is appropriate "when the defendant
asserts a lack of guilty knowledge, but the evidence supports an inference of
deliberate ignorance.” United States v. Whitehill, 532 F.3d 746, 751 (8th Cir. 2008)
(quoting United States v. Gruenberg, 989 F.2d 971, 974 (8th Cir. 1993)). Haire
traveled to Texas on a one way train ticket carrying over $33,000 in cash in a vacuum
sealed bag on behalf of his nephew Williams. Johnson's testimony also showed that
Haire was aware that Williams was a drug dealer. If Haire did not question the
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purpose of his trip or know that he was carrying drug money, "it was only because
[he] consciously chose to be ignorant of those facts." United States v. Hiland, 909
F.2d 1114, 1131 (8th Cir. 1990). We reject Haire's contention that the willful
blindness instruction lowered the government's burden of proof, because the district
court instructed the jury that it could not find he acted knowingly if he was merely
negligent, careless, or mistaken as to the fact that his suitcase contained drug
proceeds. Whitehill, 532 F.3d at 752. We therefore conclude that the district court
did not abuse its discretion in giving the willful blindness instruction.
Haire finally asserts that the government failed to present sufficient evidence
to convict him of conspiracy to launder the proceeds of drug trafficking. To obtain
a conviction under 18 U.S.C. § 1956(a)(1)(A)–(B), (h), the government was required
to prove that Haire "knew of and intentionally joined a conspiracy to conduct
financial transactions involving drug proceeds intending either to promote the
conspirators' illegal activity, or to conceal the nature, location, source, ownership, or
control of the proceeds." United States v. Elder, 682 F.3d 1065, 1071 (8th Cir. 2012).
When reviewing the sufficiency of the evidence, "we look at the evidence in the light
most favorable to the government and accept all reasonable inferences that support
the verdict." United States v. Martin, 777 F.3d 984, 992 (8th Cir. 2015).
The government's evidence showed that Haire knowingly and intentionally
joined a conspiracy to conduct financial transactions that concealed the nature of drug
proceeds. See Elder, 682 F.3d at 1071–72. After Williams and Johnson were caught
transporting drug proceeds to Lee by car, Lee and Williams were recorded planning
a trip to send Haire to Texas by train with "sealed up" money. Haire then traveled to
Houston and was caught with the money. Haire contends there is no evidence that
he knew the money was the proceeds of an unlawful activity, but there was strong
circumstantial evidence that he had this knowledge. None of Haire's own statements
were caught on the wiretap, but mens rea is rarely proven directly. It is rather "almost
always proven by using inferences reasonably drawn from the evidence as a whole."
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United States v. Ott, 741 F.2d 226, 228–29 (8th Cir. 1984). Williams told Lee on the
wiretap that Haire "already [knew] what's going on," and Lee stated that Haire was
"100," or reliable to assist in the operation. Haire had also previously served as
Williams's paid intermediary for receiving shipments of drugs. Haire was carrying
an abnormally large amount of cash in a vacuum sealed bag. By inference, Haire
knew the illicit origins of the money he was transporting. We conclude that there was
sufficient evidence to convict.
IV.
For these reasons we affirm the judgments of the district court.
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