United States v. Tamiko Grandison ( 2015 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-1381
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Tamiko Grandison
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: February 13, 2015
Filed: March 26, 2015
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Before RILEY, Chief Judge, LOKEN and SMITH, Circuit Judges.
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RILEY, Chief Judge.
A jury convicted Tamiko Grandison of one count of conspiracy to distribute
at least five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)
and 846. The district court sentenced Grandison to 360 months imprisonment.
Grandison appeals her conviction and sentence. With appellate jurisdiction under
28 U.S.C. § 1291, we affirm her conviction, vacate her sentence, and remand for
resentencing.
I. BACKGROUND
Between January 1, 2004 and June 17, 2010, Grandison delivered cocaine in
the Kansas City, Missouri, area for Jiles Johnson, a national illegal drug distributor.
Johnson testified Grandison delivered approximately 525 to 675 kilograms of cocaine
during this period. At Johnson’s instruction, Grandison obtained the cocaine at truck
stops from smugglers bringing the cocaine from California, and would load thirty-
gallon drums of cocaine into the trunk of her car. She then stored the cocaine at her
home until Johnson told her to make a delivery. When directed by Johnson,
Grandison separated out the instructed amount and delivered it to a dealer, using her
personal car with TAMIKO license plates. The dealer would remove the cocaine and
turn over cocaine sale proceeds.
On July 12, 2011, a federal grand jury indicted Grandison on one count of
conspiracy to distribute at least five kilograms of cocaine. Later that month, and after
her initial appearance and arraignment, Grandison applied for jobs at the United
States Postal Service and the Internal Revenue Service. On those job applications,
Grandison stated under oath she was not currently charged with any federal crimes.
Grandison’s trial began on August 19, 2013. Johnson, hoping to receive a
reduced sentence, cooperated with the government and testified against Grandison.
Grandison attempted to limit the impact of Johnson’s testimony through her
credibility attacks during opening statement and cross-examination of Johnson. The
government then called Task Force Officer Dustin Seeton to testify concerning
Johnson and his reliability.
Grandison testified in her own defense. On cross-examination, the government
asked Grandison about whether she had lied on federal job applications, and the
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government then used the applications to question her, reading portions and having
Grandison read portions. The jury found Grandison guilty.
At Grandison’s sentencing hearing, the district court adopted the Presentence
Investigation Report created by the United States Probation Office, which applied a
two-level enhancement because Grandison held drugs in her home. See United States
Sentencing Guidelines (U.S.S.G. or Guidelines) § 2D1.1(b)(12). With this
enhancement, the district court calculated an advisory Guidelines range of 360
months to life imprisonment (level 42, category I). On the government’s
recommendation, the district court sentenced Grandison to 360 months imprisonment.
Grandison appeals.
II. DISCUSSION
A. Evidentiary Issues
Grandison first challenges her conviction, arguing the district court erred in
(1) “permitting the government to improperly bolster the credibility of its key
cooperating co-conspirator witness,” and (2) “permitting the use of extrinsic evidence
of allegedly untruthful conduct to impeach the truthfulness of Ms. Grandison.”
Because she did not object to either issue at trial, we review both for plain error. See
Fed. R. Crim. P. 52(b); United States v. Jones, 770 F.3d 710, 713 (8th Cir. 2014).
Under plain error review, Grandison “must show (1) the district court committed an
error, (2) the error is clear or obvious, and (3) the error affected [her] substantial
rights.” United States v. White Bull, 646 F.3d 1082, 1091 (8th Cir. 2011). “To
demonstrate that [her] substantial rights were affected, [Grandison] must supply proof
that the error affected the outcome of the district court proceedings.” United States
v. Thornberg, 676 F.3d 703, 706 (8th Cir. 2012). “Our decision to correct a forfeited
error is discretionary, and we will ‘not exercise that discretion unless the error
seriously affects the fairness, integrity or public reputation of judicial proceedings.’”
Id. (quoting United States v. White, 241 F.3d 1015, 1023 (8th Cir. 2001)).
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1. Bolstering
Grandison argues the district court plainly erred in permitting Officer Seeton
to bolster Johnson’s testimony in violation of Federal Rule of Evidence 608(a). Rule
608(a) provides: “A witness’s credibility may be . . . supported by testimony about
the witness’s reputation for having a character for truthfulness or untruthfulness, or
by testimony in the form of an opinion about that character. But evidence of truthful
character is admissible only after the witness’s character for truthfulness has been
attacked.” According to Grandison, Officer Seeton’s testimony was improper
because Grandison never attacked Johnson’s character for truthfulness. The record
belies Grandison’s argument.
Grandison first attacked Johnson’s character for truthfulness in her opening
statement:
Mr. Johnson tells people what he wants them to hear based on the
situation, and this great deal that was offered by the Government
afforded him that opportunity. He had to spin a great story so that he
could spend less time in prison . . . . At the end of the day, we’ll show
you that the testimony coming from the Government’s key witnesses is
biased and simply a payback for the deals that were given.
Grandison continued her attack on cross-examination, asking Johnson:
(1) Does the Government have any means to verify the stories you
tell them?
(2) Is there an independent source to verify the stories that you tell?
(3) Have you ever testified that you have not told the truth?
See, e.g., United States v. Bonner, 302 F.3d 776, 781 (7th Cir. 2002) (concluding
evidence was admissible under Rule 608(a) because truthfulness of witness had been
attacked during opening statements and cross-examination); United States v. Jones,
763 F.2d 518, 522 (2d Cir. 1985) (finding an attack in opening statements on the
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truthfulness of the government witnesses where defense counsel stated the witnesses
“made a deal to save their own hide”).
Following Grandison’s accusations and insinuations, Officer Seeton testified
on direct examination that, during his multiple investigations, Johnson was integral
to several drug prosecutions, and Officer Seeton had never come across information
contradicting what Johnson told him. These general statements about Johnson’s
character and reliability did not venture outside the scope of Rule 608(a) by
addressing the specific believability of Johnson’s testimony about Grandison. See
United States v. Azure, 801 F.2d 336, 341 (8th Cir. 1986).
On cross-examination of Officer Seeton, Grandison’s counsel specifically
inquired about, and effectively reinforced, Officer Seeton’s opinion of Johnson’s
reliability. To the extent Officer Seeton’s testimony on cross-examination may have
fallen outside of Rule 608(a), Grandison invited those statements through her
questioning and cannot be heard to complain now. See Fed. Crop Ins. Corp. v.
Hester, 765 F.2d 723, 727 (8th Cir. 1985) (“[I]t is ‘fundamental that where the
defendant opened the door and invited error there can be no reversible error.’”
(quoting United States v. Steele, 610 F.2d 504, 505 (8th Cir.1979))).
Officer Seeton’s testimony was admissible under Rule 608(a), and the district
court committed no error, plain or otherwise, by receiving it.
2. Extrinsic Evidence
Grandison next contends the government’s use of extrinsic evidence in cross-
examining Grandison violated Rule 608(b). On cross-examination, the government
inquired into Grandison’s truthfulness by asking whether Grandison lied on her IRS
and Postal Service job applications when she stated she was not currently facing any
federal charges. Grandison replied that she remembered marking she had no felonies,
but she did not read the entire section on the application and simply marked “no” to
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all of the questions. The government then quoted and asked about specific questions
on the forms, and showed Grandison the applications and had her read one question
into the record.
Rule 608(b) provides, in relevant part, that “extrinsic evidence is not
admissible to prove specific instances of a witness’s conduct in order to attack or
support the witness’s character for truthfulness. But the court may, on
cross-examination, allow them to be inquired into if they are probative of the
character for truthfulness or untruthfulness.” In inquiring about the witness’s
conduct, the questioner must take the answer provided by the witness and cannot use
“extrinsic evidence to prove that the specific bad acts occurred.” United States v.
Martz, 964 F.2d 787, 789 (8th Cir. 1992).
Even if we assume the district court plainly erred in allowing the government
to use the applications on cross-examination, Grandison must still show “there is ‘a
reasonable probability that, but for [the error claimed], the result of the proceeding
would have been different.’” United States v. Frokjer, 415 F.3d 865, 872 (8th Cir.
2005) (alteration in original) (quoting United States v. Dominguez Benitez, 542 U.S.
74, 82 (2004)). Grandison claims the admission of the applications so reduced her
credibility as to infect the jury decision-making process and affect the outcome of her
trial. We disagree. Grandison’s testimony remained the same before and after the
admission of the applications, as she continued to assert she had not read or
understood the questions on the applications. These applications likely had little or
no impact on the jury’s overall opinion of Grandison’s credibility, and Grandison has
provided no evidence suggesting otherwise. The record also reflects that other
evidence strongly supported a guilty verdict. Grandison cannot show a reasonable
probability that, but for the error, she would not have been convicted.
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B. Drug House Enhancement
Grandison also challenges her sentence as procedurally flawed, proposing the
district court miscalculated her Guidelines range. The district court applied a two-
level enhancement pursuant to U.S.S.G. § 2D1.1(b)(12) because Grandison
maintained a place for drug distribution, resulting in an advisory Guidelines range of
360 months to life. The parties now agree that this specific enhancement did not take
effect until November 1, 2010, two years after Grandison ceased her drug activities.
Though Grandison did not object to the enhancement on ex post facto grounds
before the district court, she now raises the issue on appeal. We again review for
plain error. See United States v. Campbell, 764 F.3d 874, 878 (8th Cir. 2014). The
government concedes the district court should not have applied the enhancement and
Grandison’s advisory Guidelines range should have been 292 to 365 months. The
government further concedes this error is plain. Therefore, the issue before us is the
fact-specific question of whether the error affected Grandison’s substantial rights.
See United States v. Pirani, 406 F.3d 543, 550 (8th Cir. 2005) (en banc). We hold
that it did.
“In the sentencing context, an error affects a defendant’s ‘substantial rights’
when the error is prejudicial, and ‘an error is prejudicial only if the defendant proves
a reasonable probability that he would have received a lighter sentence but for the
error.’” United States v. Horton, 756 F.3d 569, 580 (8th Cir. 2014) (quoting United
States v. Franklin, 695 F.3d 753, 757 (8th Cir. 2012)); see also Pirani, 406 F.3d at
551-53. We previously have held that a sentence at the low end of an erroneous
Guidelines range is not enough by itself to establish a reasonable probability of a
lighter sentence but for the error, and we reaffirm that principle. See United States
v. Bain, 586 F.3d 634, 640 (8th Cir. 2009) (per curiam); Pirani, 406 F.3d at 553.
However, Grandison has shown more than just a sentence at the bottom of the
Guidelines range.
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At sentencing, the district court requested the recommendation of the
government, which responded: “We’re satisfied with the bottom of the guidelines.”
The district court then stated:
I accept the position of your attorney, you weren’t a ring leader, but you
were sure a dependable and regular and consistent supplier in
operations. I’m going to assess your punishment at 360 months. I’ll
take the government’s recommendation, which is – it’s a lot of time
although I could go to life, but I’m going to stay with the 360.
This statement is the primary insight into the district court’s determination of
Grandison’s sentence. The district court did not make an alternative holding based
solely on the 18 U.S.C. § 3553(a) factors and seems to have relied upon the
government’s recommendation. While the district court’s statements alone do not
move us past speculation of what may have happened without the error, see Pirani,
406 F.3d at 553, the government’s concessions at oral argument on appeal—(1) it
probably would have recommended the bottom of the correctly calculated advisory
Guidelines range, and (2) the district court probably would have taken that
recommendation—do. Taking the district court’s statements and the government’s
concessions together, we find there is a reasonable probability that, but for the error,
Grandison would have received a lesser sentence. We therefore exercise our
discretion to recognize the plain error, see id. at 550, and remand for resentencing.
III. CONCLUSION
We affirm Grandison’s conviction, vacate her sentence, and remand for
resentencing with the correctly calculated advisory Guidelines range of 292 to 365
months.
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