United States v. Marcus Jones ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 00-2905
___________
United States of America, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri
Marcus Deangelo Jones, *
*
Appellee. *
___________
Submitted: March 13, 2001
Filed: June 25, 2001 (Corrected July 25, 2001)
___________
Before MORRIS SHEPPARD ARNOLD and HEANEY, Circuit Judges, and
TUNHEIM,1 District Judge.
___________
TUNHEIM, District Judge.
Marcus Deangelo Jones was found guilty by a jury on April 26, 2000, of four
counts of distribution and possession with intent to distribute cocaine base in violation
of 21 U.S.C. § 841(a)(1) and one count of conspiracy to distribute and possess with
intent to distribute cocaine base in violation of 21 U.S.C. § 846. On appeal Jones
1
The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
argues that the district court2 erred in denying his motion to suppress and erred in
admitting certain evidence at trial. Jones also challenges the sufficiency of the evidence
as to the conspiracy conviction. We affirm.
FACTUAL BACKGROUND
In the summer of 1999, the Columbia Police Department was conducting an
investigation of Jones for possible involvement in illegal narcotics activity. The
investigation included at least four arranged purchases of crack cocaine by undercover
police detective Candy Cornman. In her undercover role, Detective Cornman had a
number of meetings and telephone conversations with Jones. Each of the meetings was
recorded on audio tape and all but one videotaped. After each meeting with Jones
during which she bought crack cocaine, a field test and chemical analysis was
conducted and the substance sent to the laboratory for further testing. The result of the
investigation was the arrest, subsequent trial and conviction of Jones on distribution,
possession, and conspiracy charges.
On July 16, 1999, Detective Cornman spoke with Jones by phone and arranged
to purchase 1/8 ounce of crack cocaine from him. Later that day, she met Jones in a
supermarket parking lot in Columbia, Missouri. After Cornman arrived, Jones drove
up to her in a gray four-door Chevrolet Celebrity with a Missouri license plate,
140-KHL. Jones sold Cornman 1/8 ounce of crack cocaine for $200. At that time, the
two discussed future transactions and Jones quoted Cornman a price list for different
amounts of crack cocaine.
On July 20, 1999, Cornman again made arrangements to buy crack cocaine from
Jones. This time the two met in the parking lot of a different Columbia supermarket.
2
The Honorable Scott O. Wright, Senior Judge for the United States District
Court, Western District of Missouri.
-2-
Jones again arrived in the Chevrolet Celebrity, but this time with four other people. He
was seated in the front passenger seat and motioned Cornman over to the vehicle.
Jones proceeded to sell Cornman ¼ ounce of crack cocaine for $275. After the
transaction was completed, Jones got back into the vehicle and was driven to a different
area of the parking lot where another individual appeared to be waiting for him. That
person got out of his vehicle and approached Jones's vehicle. Cornman witnessed what
appeared to be a transaction between the two.
On July 30, 1999, Cornman again communicated with Jones and this time he
agreed to sell her ½ ounce of crack cocaine. When Jones arrived at the agreed upon
location, he was driving a Chevrolet Monte Carlo with the same license plate as the one
on the Chevrolet Celebrity, which Jones had used in the previous two sales. Cornman
purchased ½ ounce of crack cocaine from Jones for $560. After the transaction,
Cornman again witnessed Jones approach the same vehicle that he had approached
after the July 20, 1999 transaction.
Earlier in the day on July 30, 1999, Sergeant Brian Piester, who was in charge
of the Columbia Narcotics Unit, told Officer Christopher Kelley that an undercover
detective would be meeting an individual near Officer Kelley's patrol area. Sgt. Piester
told Officer Kelley that he would radio Kelley after the meeting and that Kelley should
follow the vehicle and attempt to find probable cause to stop the vehicle and identify
the driver. Shortly before 5:30 p.m. that evening, Kelley received a radio call from
Piester, telling him that Jones's vehicle was leaving the meeting with Cornman. Officer
Kelley followed the car and ran the license plate number through his on-board
computer. The computer search revealed that the license plate was registered to a four-
door, rather than two-door Chevrolet. Concluding that the vehicle was improperly
registered, Kelley stopped Jones. Officer Kelley asked Jones for identification and
Jones gave him a Missouri driver's license that identified him as "Marcus D. Jones."
After writing down the identification information, Kelley issued Jones a warning for
improper registration and for not producing proof of insurance. The identification
-3-
information obtained by Kelley confirmed that defendant had used different names at
different times, a fact that the on-going narcotics investigation apparently had not yet
confirmed.
On August 18, 1999, Detective Cornman again met Jones in a supermarket
parking lot, this time to purchase one ounce of crack cocaine. Jones arrived in a dark
blue Nissan Maxima with another person, who Jones introduced as "Lil' Mex."
Cornman had brought a scale with her to ensure that she received the proper amount
of cocaine. When she weighed the cocaine, she found that it weighed under an ounce
and paid Jones $700 rather than the $1200 that they had earlier agreed upon. During
the transaction, "Lil' Mex" handed the crack cocaine to Cornman across the passenger
side of the vehicle and also told Cornman during the transaction that the weight of the
crack was correct. "Lil' Mex" later said to Jones, after Cornman had discovered the
weight of the crack was less than one ounce, "Just knock some off. Let's go."
Cornman talked to Jones again on September 9, 1999, to set up another crack
purchase. During their conversation, Jones told Cornman that he wanted to know who
the two knew in common because he had heard that secret indictments were going to
come down. The next day the two met and Jones sold Cornman crack cocaine for
$1000.
Jones was arrested at an Amoco Quick Store in Columbia, Missouri on
December 21, 1999, by Officer Benjamin White. Jones was not immediately read his
Miranda3 rights, but was transported to the police station in a squad car. While riding
in the police car, the officers testified that Jones was very talkative and asked a number
of questions. During the ride to the police station, and before the officers read him his
Miranda rights, Jones explained to the officers his use of two different names. He told
the officers that he was unable to obtain a driver's license after being released from
3
Miranda v. Arizona, 384 U.S. 436 (1966).
-4-
prison in Tennessee, so he used his mother's name, "Jones," from his Tennessee birth
certificate. Jones also explained that his prior felony convictions were under the name
"Lee" in Tennessee. Officer White testified that Jones never requested an attorney and
did not ask that the questioning cease. None of the statements obtained on the ride to
the police station were used at trial.
Upon arriving at the police station, Officer White testified that Jones was
processed and booked and read his Miranda rights. Officer White stated that he recited
Jones his Miranda rights from memory rather than reading them from a card. White
testified that Jones then agreed to answer some questions and told the police that he
had used the name "Marcus Jones" to purchase a handgun from a pawn shop and that
he had used the last names "Jones" and "Lee." He also told the police that he had
changed his name from "Lee" to "Jones" after getting out of prison, that he had applied
for and received a gun permit, but that his gun had been seized by the police in an
earlier incident. Jones admitted that he knew that he wasn't supposed to have a gun,
but that "the handgun was the least of his worries." Defendant claims that he was not
read his Miranda rights until his questioning at the police station was almost completed.
PROCEDURAL HISTORY
A federal grand jury returned a six count indictment on November 19, 1999,
charging Jones with four counts of distribution of cocaine base and one count each of
attempt to distribute cocaine base and conspiracy to distribute at least 50 grams of
cocaine base. Defendant entered a not guilty plea on December 23, 1999. A
superseding indictment was returned on January 21, 2000, realleging the same six
counts, and adding one count for carrying a firearm in relation to a controlled substance
in violation of 18 U.S.C. § 924(c).
Jones filed motions to suppress evidence and statements. On April 17, 2000, a
suppression hearing was held before a magistrate judge. Jones claimed that the July 30,
-5-
1999 stop violated his Fourth Amendment Rights. He also moved to suppress the
statements he made to police during his ride to the police station as well as the
statements made at the police station on December 21, 1999, because he had not been
given his Miranda rights. The district court denied both motions and the case
proceeded to trial.
During the trial, the district court admitted over defendant's objection, a video
tape of the July 20, 1999, transaction between Cornman and Jones. The video also
showed Jones's car driving to another vehicle in the parking lot and making some kind
of exchange with the person in that vehicle. Officer Cornman was also permitted to
testify at trial, over defendant's objection, that Jones told her that he was concerned
about secret indictments that had recently come down.
On April 26, 2000, a jury found Jones guilty on four counts of distributing
cocaine base and on one count of conspiracy to distribute cocaine base. Jones was
found not guilty of attempt to distribute cocaine base.4 The district court sentenced
Jones to 327 months in prison for counts one, three, and six of the indictment, and to
120 months for counts four and five, the sentences to run concurrently. Jones filed this
timely appeal.
DISCUSSION
I. Motion to Suppress
Where a court denies a motion to suppress statements, we review its factfinding
under a clearly erroneous standard. United States v. McMurray, 34 F.3d 1405, 1409
(8th Cir. 1994). However, we review the court's application of law to those facts de
4
Count VII of the indictment, carrying and using a firearm during a controlled
substance offense, was dismissed by the district court on Jones's motion during trial.
-6-
novo. Id. We will affirm the district court's denial of a motion to suppress evidence
unless it is unsupported by substantial evidence, based on an erroneous interpretation
of applicable law, or, based on the entire record, it is clear that a mistake was made.
United States v. Bieri, 21 F.3d 811, 814 (8th Cir. 1994).
A. Statements Made to Police
Jones argues that his statements made to police officers after his arrest on
December 21, 1999 should have been suppressed because he was not read his Miranda
rights. Jones also contends that at the time of his arrest he was placed in a police-
dominated atmosphere and his liberty was restrained, triggering the need for a Miranda
warning. We find that the district court did not err in denying Jones's motion to
suppress the statements.
Jones sought to suppress two separate statements he made on December 21,
1999. The first statement, made after Jones was arrested while he was in the police car
on the way to the station, was not used during trial. Because this statement was not
used at trial, the Court need not address whether Jones's motion was properly denied.
United States v. Alvarado-Delgado, 98 F.3d 492, 494 (9th Cir. 1996) (noting that
defendant's initial statements were not admitted at trial and the court therefore need not
consider whether the pre-Miranda statements were admissible); Reynolds v. A.L.
Lockhart, 497 F.2d 314, 315 (8th Cir. 1974) (explaining that none of petitioner's
incriminating statements were admitted at trial and the exclusionary rule therefore has
no application).
Jones made another statement after he was processed and booked at the police
station. He claims that no Miranda warning was given to him until after he made
incriminating statements at the police station. Officer White testified that he informed
Jones of his Miranda rights at the time of the booking, reciting them from memory. The
-7-
district court found that Jones had been given his Miranda rights by Officer White at
the police station and then knowingly and voluntarily waived those rights.
The question before this Court is essentially one of credibility: whether the
testimony of Officer White or the testimony of Jones was more credible. Credibility
determinations are best left to the sound discretion of the trial judge. United States v.
E.R.B., 86 F.3d 129, 130 (8th Cir. 1996). There is nothing in the record before this
Court to call into question the credibility determination made by the district court that
Officer White recited Miranda rights to Jones at the time of booking. Accordingly, the
district court's decision to deny Jones's motion to suppress statements made to the
police after his arrest is affirmed.5 United States v. Sturgis, 238 F.3d 956, 958 (8th Cir.
2001) (affirming district court decision based on credibility determination); United
States v. Moss, 138 F.3d 742, 744 (8th Cir. 1998) (affirming district court drug quantity
determination based on credibility determination); United States v. Lank, 108 F.3d 860,
862 (8th Cir. 1997) (stating that court would not disturb district court credibility
finding).
B. Evidence Obtained from Traffic Stop
Appellant also argues that the district court erred in refusing to suppress
identification information obtained by Officer Kelley after a traffic stop of appellant's
car on July 30, 1999. Appellant argues that the traffic stop was unlawful because it
was pretextual and not based upon reasonable articulable suspicion of criminal activity.
5
The Court also notes that there is no evidence in the record to indicate that
there was any coercion on the part of the police officers. Even if this Court were to
have found that defendant was not read his Miranda rights, the absence of any coercion
would still result in the affirmance of the district court's decision to deny defendant's
motion to suppress. Colorado v. Connelly, 479 U.S. 157, 167 (1986); United States
v. Kime, 99 F.3d 870, 880 (8th Cir. 1996).
-8-
While a pretexual traffic stop violates the Fourth Amendment, see United States
v. Eldrige, 984 F.2d 943, 947 (8th Cir. 1993), this Court has held on numerous
occasions that any traffic violation, regardless of its perceived severity, provides an
officer with probable cause to stop the driver. United States v. Periera-Munoz, 59 F.3d
788, 791 (8th Cir. 1995); United States v. Barahona, 990 F.2d 412, 416 (8th Cir. 1993).
To determine whether a traffic stop was based on probable cause or was merely
pretextual, an "objective reasonableness" standard is applied. United States v. Miller,
20 F.3d 926, 929 (8th Cir. 1994). Once a car is lawfully stopped, the police may
request the driver's license and registration. United States v. Ramos, 42 F.3d 1160,
1163 (8th Cir. 1994) (a reasonable traffic stop includes asking for a license and
registration).
In this case, Officer Kelley ran defendant's license plate information through his
on-board computer and discovered that the plates were registered to a four-door car,
rather than a two-door car. Officer Kelley concluded that defendant was operating an
improperly registered vehicle and then stopped the vehicle. Officer Kelley next asked
Jones for identification and was given a Missouri driver's license that identified
defendant as "Marcus D. Jones." After writing down the identification information,
Officer Kelley issued Jones a warning for improper registration and for not producing
proof of insurance.
Officer Kelley had evidence of a traffic violation and his decision to stop Jones
and ask for identification was therefore objectively reasonable. The fact that Officer
Kelley had previously been told by Sgt. Piester that an undercover detective was going
to meet with an individual near Officer Kelley's patrol area, and that after the meeting
Kelley should follow the vehicle and attempt to find probable cause to stop the vehicle
and identify the driver is irrelevant. Courts are not to consider the motive for a stop as
long as the reason for the stop is valid. Whren v. United States, 517 U.S. 806, 809
(1996); Periera-Munoz, 59 F.3d at 791 ("if the officer is doing that which he is legally
permitted to do and objectively authorized to do, his state of mind is irrelevant for
-9-
purposes of determining the lawfulness of the stop"). Here, because the reason for the
stop was valid, the district court decision to deny Jones's motion to suppress the
identification information obtained by Officer Kelley was not clearly erroneous.
II. Evidentiary Issues
We review a decision to admit evidence over a party's objection under the abuse
of discretion standard. McMurray, 34 F.3d at 1411; United States v. Whitfield, 31
F.3d 747, 749 (8th Cir. 1994). The district court is given broad discretion in
determining relevancy and admissibility of evidence. United States v. Hollister, 746
F.2d 420, 422 (8th Cir. 1984). That discretion is particularly broad in a conspiracy trial.
United States v. Davis, 882 F.2d 1334, 1343 (8th Cir. 1989).
A. Admission of Video Tape
During the trial, the jury was shown a video tape of an alleged cocaine sale by
Jones to Officer Cornman. During the trial, Officer Cornman was permitted to testify
as to what she witnessed after the transaction was completed. She testified that Jones
drove to a different area in the parking lot where another person was waiting. She then
testified that the two appeared to exchange some item. After Officer Cornman testified
to these events, the jury was shown the corresponding video tape. Jones argues that
the district court improperly admitted the evidence of the video tape because the
charged crime had been completed. Jones contends that admitting the remainder of the
video tape, showing the additional transaction, was prejudicial and should have been
excluded as inadmissible character evidence pursuant to Fed. R. Evid. 404(b).
Jones, however, misconstrues the nature of the evidence and the purpose for its
admission. Jones was charged with conspiracy to distribute cocaine base. The
testimony of Officer Cornman, along with the second portion of the video tape, were
offered as direct evidence of the conspiracy. The evidence was not offered as improper
-10-
character evidence pursuant to Fed. R. Evid. 404(b), but as direct evidence. A 404(b)
analysis is therefore not appropriate. United States v. Jones, 880 F.2d 55, 59 (8th Cir.
1989) (explaining that evidence of drug-related activity was evidence of the very
conspiracy charged against the named defendants and was thus outside the purview of
prior bad acts); United States v. Aranda, 963 F.2d 211, 213-14 (8th Cir. 1992)
("evidence of acts committed by the defendant . . . during the time frame of the
conspiracy and in furtherance of it . . . is not [evidence] of 'other crimes,' but rather is
evidence of the very crime charged"). Because the video was offered as direct
evidence of the conspiracy, the district court's decision to admit the evidence was not
an abuse of discretion.
B. Admission of Statements Regarding Secret Indictments
Jones also contends that a video tape shown to the jury in which "secret
indictments" were discussed was not relevant to the pending charges. He argues that
the video tape was prejudicial and should have been excluded pursuant to Fed. R. Evid.
404(b). Jones makes the same argument with respect to the testimony of Officer
Cornman, in which she stated that Jones had told her that he was concerned about
"secret indictments" coming down.
The government argues that the specific grounds for the objection to this
evidence were not made at trial, and that the evidentiary ruling is therefore entitled to
plain error review. Having reviewed the trial transcript, the Court finds that defense
counsel never made clear the grounds for the objection to this evidence. As such, plain
error review is appropriate in this case. United States v. Swanson, 9 F.3d 1354, 1357
(8th Cir. 1993); United States v. Helmel, 769 F.2d 1306, 1316-17 (8th Cir. 1985).
Under the plain error standard, we will reverse the district court only if the error
prejudices the substantial rights of the defendant, and would result in a miscarriage of
justice. Id. The Court cannot find that any such error occurred in this case.
-11-
Throughout the course of the entire trial, "secret indictments" were only
mentioned twice: once by Jones, during a tape recorded phone call; and once by
Officer Cornman in testifying about the call. These two minor references did not
prejudice the substantial rights of Jones, and if error at all, were harmless.
III. Sufficiency of Evidence for Conspiracy Conviction
Evidence is sufficient to support a verdict if "after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443
U.S. 307, 319 (1979). "We view the evidence in a light most favorable to the verdict,
giving the verdict the benefit of all reasonable inferences, and [we] will reverse only
if the jury must have had a reasonable doubt concerning one of the essential elements
of the crime." United States v. Sandifer, 188 F.3d 992, 995 (8th Cir. 1999).
In order to be convicted 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. Holloway, 128 F.3d 1254, 1257 (8th Cir. 1997); United States v.
Agofsky, 20 F.3d 866, 870 (8th Cir. 1994). A defendant challenging the sufficiency of
a conspiracy conviction has a heavy burden of proof because the crime often rests on
indirect or circumstantial evidence. United States v. Hulse, 198 F.3d 665, 668 (8th Cir.
1999).
Jones challenges the sufficiency of the conspiracy conviction because he
contends that there was no showing that he acted with or under the direction of another
person. Jones argues that simply because he was at the scene of illegal activity with
others is not enough to show a conspiracy.
Viewing the evidence in the light most favorable to the verdict, Jones's
conspiracy conviction must be affirmed. The evidence adduced at trial shows that after
-12-
a narcotics transaction with Officer Cornman on July 16, 1999, Jones, along with others
in the car, proceeded to a separate area of the parking lot where another transaction
occurred. The jury could have determined from this evidence that Jones was working
in conjunction with those in the vehicle to sell narcotics.
Moreover, testimony at trial showed that on August 18, 1999, Jones and "Lil'
Mex" completed another purported narcotics transaction with Officer Cornman. During
that transaction, "Lil' Mex" was introduced to Officer Cornman and he participated in
the transaction by handing the substance to Cornman through the car window. "Lil'
Mex" also told Cornman that the proper amount was in the package, and then after it
was found to be short, said "Just knock some off. Let's go." Jones also indicated to
Cornman during a later conversation that he had dealt with "Lil' Mex" before. The jury
could reasonably conclude from this evidence that Jones was involved in a conspiracy
with "Lil' Mex."
The evidence was therefore sufficient for a jury to conclude that Jones was guilty
of a conspiracy to distribute crack cocaine.
For the foregoing reasons, the judgment of the trial court is affirmed.
A true copy.
ATTEST:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-13-