United States v. Donald McCracken II ( 1997 )


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  •      No. 96-2738
    United States of America,            *
    *
    Appellee,                 *
    *
    v.                              *
    *
    Donald E. McCracken, II,             *
    *
    Appellant.                *
    Appeals from the United States
    No. 96-2743                         District Court for the
    ___________                         Western District of Missouri.
    United States of America,            *
    *
    Appellee,                 *
    *
    v.                              *
    *
    Donald E. McCracken, III,            *
    *
    Appellant.                *
    Submitted: January 15, 1997
    Filed: April 2, 1997
    Before WOLLMAN, and HANSEN, Circuit Judges, and MONTGOMERY,1        District
    Judge.
    MONTGOMERY, District Judge.
    Donald E. McCracken, II and Donald E. McCracken, III, appeal their
    convictions and sentences on drug charges.   Both defendants challenge the
    sufficiency of the evidence to support their
    1
    The Honorable Ann D. Montgomery, United States District
    Judge for the District of Minnesota, sitting by designation.
    convictions and the admission into evidence of statements made by Donald
    E.   McCracken,         II.      Defendants      also    contest    the   district      court’s2
    application of the two-level enhancement for possession of firearms in
    connection with a drug offense pursuant to U.S.S.G. § 2D1.1(b)(1).                         Upon
    review, we affirm the convictions and the sentences.
    I.       BACKGROUND
    On    August    27,    1994,   Detective       Jeffery    Seever,    working    in   an
    undercover capacity for the Jackson County Drug Task Force, was introduced
    by   a        contact    to    Scott    Walker     for    the     purposes    of    purchasing
    methamphetamine.              Walker made a brief phone call and then informed
    Detective Seever that he could obtain methamphetamine.                             Walker then
    directed Detective Seever to drive to 11505 Grandview, Kansas City,
    Missouri.
    Detective Seever and Walker entered the house at 11505 Grandview
    where defendant Donald E. McCracken, III (“McCracken Junior”) was seated
    on a couch in the living room.                McCracken Junior’s girlfriend, Carmen
    Radford, was also present in the house.                   Walker sat on a chair next to
    McCracken Junior, while Detective Seever sat on the other side of the room.
    Walker and McCracken Junior spoke to each other in quiet tones such that
    Detective Seever could not overhear their conversation.                      McCracken Junior
    and Walker then left the living room and walked toward the southeast part
    of the residence.
    A short time later, Walker returned to the living room and presented
    to Detective Seever a substance which Walker represented
    2
    The Honorable Fernando J. Gaitan, Jr., United States
    District Judge for the Western District of Missouri.
    -2-
    to be a half-ounce of methamphetamine.       Walker informed Detective Seever
    that the cost of the methamphetamine was $1,150.            Detective Seever paid
    Walker $650 for his portion of the methamphetamine and Walker returned to
    the southeast part of the house.     Walker eventually returned to the living
    room with a blue parcel later determined to be methamphetamine wrapped in
    blue gauze.
    Detective Seever and Walker were leaving the residence when Defendant
    Donald E. McCracken, II (“McCracken Senior”) and his girlfriend, Melissa
    Fox, arrived and entered the residence.      McCracken Senior asked Detective
    Seever and Walker if they had noticed the police car parked in the vicinity
    of the house.    McCracken Senior then advised Detective Seever and Walker
    that if the police pursued them, they should flee in order to dispose of
    the methamphetamine.     McCracken Senior recommended that “it’s better to
    have a car charge than a Class A or B felony drug charge.”
    Detective Seever and Walker left the residence and Detective Seever
    received his portion of the methamphetamine.       Detective Seever returned to
    the Task Force headquarters where the substance was tested and proved to
    be 7.7 grams of methamphetamine.
    Subsequently, on August 29, 1994, Detective Seever obtained a search
    warrant for 11505 Grandview.    The search warrant was executed on September
    2, 1994.    Six individuals were present at the residence during the search,
    including McCracken Junior, Melissa Fox and Carmen Radford.              McCracken
    Senior was not present during the search.          McCracken Junior was in the
    living room when officers first entered the residence.             From the living
    room,    officers   recovered   a   loaded   9mm   pistol    and   six   grams   of
    methamphetamine.
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    Officers searched the southwest bedroom of the house where they
    recovered two loaded firearms: (1) an assault rifle mounted over the
    archway of the bedroom door with one round in the chamber and a magazine
    holding 31 rounds, and (2) a .45 caliber handgun in a holster nailed to the
    headboard of the bed containing a magazine loaded with six rounds.
    Officers also recovered from a heater located a few feet from the bed, four
    small packages wrapped in blue gauze containing a combined total of 110
    grams of methamphetamine.     In the bedroom closet officers recovered a box
    with the name “Don McCracken” on it, as well as men’s clothing bearing
    emblems such as “Shadow,” “S and G” and “FYVM.”             Detective Seever’s
    investigation ultimately determined that “Shadow” was a nickname for
    McCracken Senior, and that “S and G” and “FYVM” were              abbreviations
    relating    to   McCracken   Senior’s   business.    Officers   also   discovered
    photograph albums containing pictures of McCracken Senior as well as a
    photograph of Melissa Fox on the headboard of the bed.
    Officers also searched the northeast bedroom of the residence.
    Officers discovered a pair of jeans containing $1,420 in United States
    currency and a billfold holding identification documents of McCracken
    Junior.    The bedroom closet contained two safes.      One safe held more than
    $30,000 in United States currency.            The money was divided into three
    bundles wrapped in blue gauze.     The safe also contained an envelope marked
    “Pistol,” a nickname for McCracken Junior, and documents with the name of
    “Donald E. McCracken, II” on the front cover as well as a key chain marked
    “Shadow Motorcycle.”    The second safe contained seven to eight collector’s
    guns.     A search of the southeast bedroom revealed a set of electronic
    scales and multiple rolls of small plastic bags.           A safe in the room
    contained a box labeled “Shadow.”
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    A few months later, on March 10, 1995, Officers conducted a search
    of 9625 Grandview, Kansas City, Missouri.     McCracken Senior was present
    during the search.     A search of the attic area of the residence produced
    three bags.     One bag contained four packages wrapped in black tape.   The
    packages consisted of a total of 110 grams of methamphetamine.    The other
    two bags contained 25 grams of methamphetamine and $5,200 in United States
    currency.
    Officers also searched the northeast bedroom of this residence and
    discovered a safe containing a book bearing the name “Shadow.”      Located
    inside the book was a copy of the earlier search warrant for 11505
    Grandview and credit cards imprinted with the name “Donald McCracken” on
    them as well as the abbreviations “S an G” and “FYVM.”   Officers discovered
    a semi-automatic handgun with a loaded magazine hanging over the headboard
    of the bed.     In the living room, officers found a wallet with a Missouri
    drivers license for “Donald E. McCracken” and $1,060 in United States
    currency.     Officers also discovered 3.9 grams of methamphetamine on the
    coffee table.
    Detective Steve Santoli interviewed McCracken Senior at the residence
    during the search.     McCracken Senior told Detective Santoli that he had
    been living at 9625 Grandview for approximately two months.
    On May 25, 1995, defendants were charged in a five count indictment.
    Following the trial, McCracken Senior was convicted of conspiracy to
    distribute and to possess with intent to distribute methamphetamine in
    violation of 
    21 U.S.C. § 846
     and two counts of possession with intent to
    distribute methamphetamine in violation
    -5-
    of 
    21 U.S.C. § 841
    (a)(1).3   The district court sentenced him to a term of
    imprisonment of 117 months and five years supervised release.     McCracken
    Junior was convicted of conspiracy to distribute and to possess with intent
    to distribute methamphetamine in violation of 
    21 U.S.C. § 846
    (a)(1) and
    aiding and abetting the distribution of methamphetamine in violation of 
    21 U.S.C. § 841
    (a)(1) and 
    18 U.S.C. § 2
    .       The district court sentenced
    McCracken Junior to 78 months incarceration and five years supervised
    release.   Defendants now appeal the convictions and sentences.
    II.    DISCUSSION
    A)     Sufficiency of the Evidence
    Both defendants challenge the sufficiency of the evidence with regard
    to the conspiracy convictions.      McCracken Junior also challenges the
    sufficiency of the evidence with respect to his conviction of aiding and
    abetting distribution of methamphetamine.      McCracken Senior similarly
    contends the evidence was insufficient with respect to his convictions for
    possession with intent to distribute methamphetamine.
    In reviewing a sufficiency of the evidence claim, we view the
    evidence in the light most favorable to the verdict.     United States v.
    Jenkins, 
    78 F.3d 1283
    , 1287 (8th Cir. 1996) (citing United States v.
    Bascope-Zurita, 
    68 F.3d 1057
    , 1060 (8th Cir. 1995), cert. denied,     U.S.
    , 
    116 S.Ct. 741
    , 
    133 L.Ed.2d 690
     (1996)).      The verdict is given the
    benefit of all reasonable inferences that
    3
    The district court entered a judgment of acquittal
    notwithstanding the verdict as to a charge of use and carrying of
    firearms in violation of 
    18 U.S.C. § 924
    (c).
    -6-
    could have been drawn from the evidence presented.        
    Id.
       “Reversal is
    appropriate only if we conclude that a reasonable fact-finder must have
    entertained a reasonable doubt about the government’s proof of one of the
    offense’s essentials elements.” 
    Id.
     (internal quotations omitted).
    In order to prove the existence of a conspiracy, “‘the government
    must show an agreement between at least two people and that the agreement’s
    objective was a violation of the law.’” Jenkins, 
    78 F.3d at 1287
     (quoting
    United States v. Escobar, 
    50 F.3d 1414
    , 1419 (8th Cir. 1995)).          This
    agreement may be proved by either direct or circumstantial evidence.     
    Id.
    In fact, proof of the agreement often must be implied from the surrounding
    circumstances.   Escobar, 
    50 F.3d at 1419
    .
    The government introduced sufficient evidence against defendants
    establishing a conspiracy between both defendants and Walker.         Walker
    brought Detective Seever to 11505 Grandview for the express purpose of
    purchasing methamphetamine.   McCracken Junior was present at the residence
    and accompanied Walker to the southeast part of the house from where Walker
    returned with methamphetamine.   The search of the residence later revealed
    methamphetamine, scales and plastic baggies in the southeast and southwest
    bedrooms.   As Detective Seever and Walker left the residence with the
    methamphetamine, McCracken Senior arrived at the house.    McCracken Senior
    then immediately warned Detective Seever and Walker about the presence of
    a police car and advised them to dispose of the methamphetamine if pursued
    by police officers.
    The government also presented evidence that both defendants resided
    at 11505 Grandview.    McCracken Senior’s daughter testified that both
    defendants lived at 11505 Grandview in August and September of 1994.     The
    southwest bedroom contained personal
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    possessions of McCracken Senior and in that bedroom officers recovered
    methamphetamine wrapped in blue gauze and two loaded firearms.           Possessions
    belonging to McCracken Junior were found in the northeast bedroom where
    officers discovered a safe containing $30,000 divided in three bundles
    wrapped in the characteristic blue gauze.              The methamphetamine earlier
    purchased by Detective Seever had also been wrapped in blue gauze.                  When
    viewed in a light most favorable to the verdict, the evidence presented at
    trial of the events on August 27, 1994 and the seizure of methamphetamine,
    money, guns and scales from a residence occupied by both defendants was
    sufficient to support the jury’s conclusion that the defendants were
    involved in a conspiracy to distribute methamphetamine.
    McCracken Junior alleges there was insufficient evidence to support
    his conviction for aiding and abetting the distribution of methamphetamine.
    To sustain a conviction for aiding and abetting with intent to distribute
    drugs, the government must prove: “‘(1) that the defendant associated
    himself with the unlawful venture; (2) that he participated in it as
    something he wished to bring about; and (3) that he sought by his actions
    to make it succeed.’” United States v. Duke, 
    940 F.2d 1113
    , 1117 (8th Cir.
    1991) (quoting United States v. Lanier, 
    838 F.2d 281
    , 284 (8th Cir. 1988)).
    In   examining    the   evidence   in    the   light   most   favorable   to    the
    government,   the   facts    sufficiently     establish     that   McCracken   Junior
    associated    and     then   participated       with    Walker     in   distributing
    methamphetamine.      Walker brought Detective Seever to a residence where
    McCracken Junior was present for the purpose of purchasing methamphetamine.
    Walker talked with McCracken Junior, left the living room with McCracken
    Junior, and then returned with a sample of methamphetamine for Detective
    Seever.   Detective Seever gave Walker some money, Walker returned to the
    southeast portion of the house and then returned with the methamphetamine
    wrapped in blue
    -8-
    gauze.    This configuration of physical movements and exchange of money is
    strong circumstantial evidence from which a jury could reasonably find
    McCracken Junior to be Walker’s source of supply for the methamphetamine.
    The evidence is sufficient to support McCracken Junior’s conviction on
    aiding and abetting with intent to distribute methamphetamine.
    McCracken       Senior    contends    that   insufficient      evidence    exists   to
    support    his    conviction    on   two   counts   of    possession    with    intent   to
    distribute       methamphetamine     in    violation     of   
    21 U.S.C. § 841
    (a)(1).
    McCracken Senior was charged with possession of the methamphetamine seized
    from 11505 Grandview on September 2, 1994 and the methamphetamine seized
    from 9625 Grandview on March 10, 1995.                 McCracken Senior specifically
    argues that the government did not sufficiently provide evidence that he
    possessed the methamphetamine.
    To convict McCracken Senior on a violation of 
    21 U.S.C. § 841
    (a)(1),
    the government had to prove that he knowingly possessed the methamphetamine
    with the intent to distribute.        United States v. Ojeda, 
    23 F.3d 1473
    , 1475
    (8th Cir. 1994) (citing United States v. Brett, 
    872 F.2d 1365
    , 1369 (8th
    Cir. 1989)).      Proof of constructive possession is sufficient to satisfy the
    element of knowing possession.        United States v. Perkins, 
    94 F.3d 429
    , 436
    (8th Cir. 1996) (citing United States v. Townley, 
    942 F.2d 1324
    , 1325 (8th
    Cir. 1991)).       Constructive possession of drugs can be established if a
    person has “ownership, dominion or control over the contraband itself, or
    dominion over the premises in which the contraband is concealed.”                  Ojeda,
    
    23 F.3d at
    1475 (citing United States v. Schubel, 
    912 F.2d 952
    , 955 (9th
    Cir. 1990)).
    There is sufficient circumstantial evidence to support a conclusion
    that McCracken Senior constructively possessed the
    -9-
    methamphetamine.    The government produced testimony from McCracken Senior’s
    daughter that in August and September of 1994, McCracken Senior lived at
    11505 Grandview.     The methamphetamine seized from 11505 Grandview was
    recovered from a bedroom containing various possessions belonging to
    McCracken Senior.    With respect to the 110 grams of methamphetamine seized
    from 9625 Grandview, McCracken Senior informed Detective Santoli that he
    lived at 9625 Grandview.    Further, personal items with McCracken Senior’s
    nickname “Shadow” were recovered from a safe located in a bedroom at 9625
    Grandview.    In both instances, the testimony and evidence supports the
    jury’s verdict that McCracken Senior had sufficient dominion over the
    premises to establish constructive possession of the methamphetamine.
    B)      Enhancement for Possession of Firearms
    Both defendants contend that there was insufficient evidence of an
    adequate nexus between the guns seized and the alleged criminal activity
    to support the district court’s enhancement of their offense levels by two
    points pursuant to U.S.S.G. § 2D1.1(b)(1).
    Federal Sentencing Guideline § 2D1.1(b)(1) calls for an increase of
    two levels to a person’s base offense level for some drug related crimes
    when “a dangerous weapon (including firearm) was possessed.”      See United
    States v. Payne, 
    81 F.3d 759
    , 763 (8th Cir. 1996).     Application Note 3 to
    the guidelines explains that: “[t]he enhancement should be applied if the
    weapon was present, unless it is clearly improbable that the weapon was
    connected with the offense.”      
    Id.
       The government bears the burden of
    proving by a preponderance of the evidence that the weapon was present and
    that it is probable that the weapon was connected with the drug
    -10-
    charge.   
    Id.
     (quoting United States v. Hayes, 
    15 F.3d 125
    , 127 (8th Cir.),
    cert. denied,      U.S.   , 
    114 S.Ct. 2718
    , 
    129 L.Ed.2d 843
     (1994)).
    Lack of proof of use or actual possession does not prohibit a §
    2D1.1(b)(1) adjustment; enhancement for weapons possession may be based on
    constructive possession, which includes ownership, dominion, or control
    over the item, or dominion over the premises.   United States v. Luster, 
    896 F.2d 1122
    , 1129 (8th Cir. 1990) (citations omitted).     A district court’s
    determination that a defendant possessed a firearm for purposes of a §
    2D1.1(b)(1) enhancement will be reversed only if the decision was clearly
    erroneous.   Id.
    The government placed into evidence three loaded firearms seized from
    a residence where both McCracken Senior and McCracken Junior resided.   Two
    of the firearms were found in a room that the government established to be
    McCracken Senior’s bedroom.   Located in this bedroom was also 110 grams of
    methamphetamine.   McCracken Junior was present in the residence during the
    search when the officers seized the three firearms and the methamphetamine.
    More specifically, McCracken Junior was present in the living room where
    officers seized a loaded firearm within close proximity of six grams of
    methamphetamine.     The district court’s application of the two level
    enhancement was not clearly erroneous, accordingly, we affirm the district
    court’s determination.
    C)      Admission of Statements Made by McCracken Senior
    Defendants contend that the district court abused its discretion in
    admitting into evidence McCracken Senior’s statements of August 27, 1994
    where he warned and advised Detective Seever and
    -11-
    Walker about the presence of a police car near the residence.      Defendants
    maintain that the admission of these statements violated their Sixth
    Amendment right of confrontation.   Defendants argue that the statements are
    hearsay which fall outside the co-conspirator exception to the hearsay rule
    under Federal Rule of Evidence 801(d)(2)(E).    Moreover, defendants assert
    that the trial court erred by failing to make the proper Bell findings
    before ultimately admitting the statements into evidence.       United States
    v. Bell, 
    573 F.2d 1040
     (8th Cir. 1978) (establishing the procedure for the
    admission of co-conspirator statements under Federal Rule of Evidence
    801(d)(2)(E)).
    We review a district court’s determination to admit evidence            under
    the deferential abuse of discretion standard.     United States v. Johnson,
    
    28 F.3d 1487
    , 1498 (8th Cir. 1994), cert. denied,        U.S.    , 
    115 S.Ct. 768
    , 
    130 L.Ed.2d 664
     (1995),(citing United States v. Layne, 
    973 F.2d 1417
    ,
    1421-22 (8th Cir. 1992), cert. denied,         U.S.   ,
    113 S.Ct. 1011
    , 
    122 L.Ed.2d 160
     (1993)).   Unless there is a clear and prejudicial abuse of
    discretion, the district court’s decision will be affirmed.      
    Id.
    Rule 801(d)(2)(E) of the Federal Rules of Evidence provides that a
    statement of a co-conspirator is admissible if the trial court determines
    by a preponderance of the evidence that “the statement was made during the
    course and in furtherance of a conspiracy to which the declarant and the
    defendant were parties.”   United States v. Roulette, 
    75 F.3d 418
    , 425 (8th
    Cir.), cert. denied,       U.S.     , 
    117 S.Ct. 147
    , 
    136 L.Ed.2d 93
     (1996)
    (citations omitted).   As explained by the Court in Bell, the trial court
    may conditionally admit the hearsay statements of alleged co-conspirators,
    subject to a final ruling on the record that the statements are admissible
    pursuant to the co-conspirator exception to the hearsay rule.          
    Id.
        The
    procedures outlined in Bell are
    -12-
    flexible and do not require reversal for failure to follow those procedures
    absent a showing of prejudice.                 
    Id.
         If the record indicates that a
    defendant failed to specifically request a Bell ruling, but made a motion
    for   acquittal, we will consider the district judge’s denial of the
    acquittal motion as substantial compliance with the Bell holdings, and
    employ a plain-error standard of review.               United States v. Ortiz-Martinez,
    
    1 F.3d 662
    , 673 (8th Cir.), cert. denied, 
    510 U.S. 936
    , 
    114 S.Ct. 355
    , 
    126 L.Ed.2d 319
     (1993).
    As previously addressed, the government sufficiently established the
    existence of a conspiracy involving both defendants.                      McCracken Senior’s
    comments were statements of warning and advice regarding the possession of
    drugs.     Such    comments       are    not    idle       conversation    or    insignificant
    declarations.     It is clear that the statements made by McCracken Senior,
    as related at trial by Detective Seever, were made during the course and
    in furtherance of the conspiracy.              As such, the statements were admissible
    pursuant to Rule 801(d)(2)(E).
    Defendants admit they did not make an explicit request for a Bell
    finding at the end of trial.             Defendants did, however, assert an ongoing
    objection to the admission of co-conspirator statements and argued a motion
    for judgment of acquittal.         The district court denied the motion.               We infer
    from the denial of the acquittal motion the requisite Bell findings and
    review   for   plain    error.          In   light    of    the   evidence      establishing   a
    conspiracy, we do not find plain error in the admission of the testimony,
    and concomitantly, that defendants were not prejudiced by the district
    court’s failure to follow Bell procedures.
    Defendants       maintain    that       the     admission    of   McCracken     Senior’s
    conspiratorial statements violated McCracken Junior’s rights
    -13-
    pursuant to Bruton v. United States, 
    391 U.S. 123
    , 
    88 S.Ct. 1620
    , 20 Led.2d
    476 (1968).    The Supreme Court in Bruton explained that a nontestifying
    codefendant’s confession expressly incriminating the defendant introduced
    at a joint trial, violates that defendant’s Sixth Amendment right of
    confrontation.    Bruton, 
    391 U.S. at 135-136
    , 
    88 S.Ct. at 1627-1628
    .
    Bruton, however, does not mandate the exclusion of all statements made by
    a codefendant; if the codefendant’s statement does not incriminate the
    defendant, Bruton does not apply.   United States v. Flaherty, 
    76 F.3d 967
    ,
    972 (8th Cir. 1996)(citing Escobar, 
    50 F.3d at 1422
    ).   The statements made
    by McCracken Senior do not incriminate McCracken Junior.      The district
    court’s decision to admit into evidence the statements made by McCracken
    Senior is affirmed.
    III. CONCLUSION
    For the foregoing reasons, we affirm defendants’ convictions and
    sentences.
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
    -14-