United States v. Marcus M. Thurmon ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2553
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United States of America, *
*
Plaintiff-Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Marcus Malcom Thurmon, *
also known as Freak, *
*
Defendant-Appellant. *
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Submitted: December 15, 2004
Filed: July 6, 2005
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Before BYE, HANSEN, and GRUENDER, Circuit Judges.
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BYE, Circuit Judge.
Marcus Thurmon was convicted of distributing 27.41 grams of a detectable
amount of cocaine base after a prior drug felony conviction, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(B), and 851. The district court1 sentenced Thurmon to 30
years' imprisonment under the career offender provision of the United States
Sentencing Guidelines. U.S.S.G. § 4B1.1. Thurmon appeals his conviction and
sentence. Thurmon argues the district court abused its discretion by denying his
1
The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
motion for the appointment of a voice recognition expert. He challenges his sentence
pursuant to Blakely v. Washington, 542 U.S. 296 (2004), and United States v.
Booker, 125 S. Ct. 738 (2005). We affirm both the conviction and sentence.
I
In March 2002, law enforcement officers worked with a confidential informant,
Eric Beard, to set up a controlled buy of cocaine base, otherwise known as "crack
cocaine," from Thurmon. Beard knew Thurmon because both had been housed
together for three months in 2000 at a jail in Iowa. On March 27, Beard called
Thurmon and arranged the purchase of an ounce of crack cocaine. Officers fitted
Beard with recording and monitoring devices. Beard then made a recorded and
monitored telephone call to a cell phone registered to Thurmon. During the call,
Beard and Thurmon agreed to meet at a Super Target store in Cedar Rapids, Iowa.
At the Super Target, officers monitored and recorded the purchase on audio and
video tapes. Beard was provided with $1,000 in pre-serialized funds. At
approximately 4:23 p.m., a blue-green four-door Cadillac with temporary plates
arrived at the Super Target parking lot. An unidentified female was driving the
Cadillac. Thurmon sat in the front passenger seat. After Beard climbed into the
backseat of the Cadillac, surveillance officers monitored the Cadillac while it was
driven around the parking lot and adjacent streets. Inside the Cadillac, Thurmon
handed Beard 27.41 grams of cocaine base in a Newport cigarette box and took the
pre-serialized funds from Beard. Throughout the transaction, Beard referred to
Thurmon by his nickname "Freak," a nickname which Thurmon has tattooed across
his back. After the Cadillac returned to the parking lot, Beard exited. Beard then
turned over the Newport cigarette box and recording equipment to the officers. After
the Cadillac left the Super Target, it was driven to an apartment complex where
Thurmon exited the vehicle and walked into an apartment building. He was not
apprehended by the police at that time.
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On July 22, 2003, the government filed an indictment against Thurmon
charging him on one count of distributing approximately 27.41 grams of a detectable
amount of cocaine base after a prior drug felony conviction. Prior to trial, Thurmon
filed an ex parte motion for the appointment of a voice identification expert, which
the district court denied.
At trial, Beard testified he identified and recognized the passenger in the front
seat of the Cadillac as Thurmon. Additionally, a police officer, who had at least three
prior encounters with Thurmon, testified he was able to identify Thurmon when the
Cadillac passed the officer's vehicle. Thurmon's ex-girlfriend, Tina Bennett, also
testified at trial that she could identify Thurmon as the passenger of the vehicle from
the videotape of the controlled buy. It was revealed Bennett was romantically
involved with Beard at the time the trial was taking place.
Thurmon did not testify, but called several witnesses. Thurmon's girlfriend,
Nakisha Roberts, testified Thurmon was living in Iowa City during the transaction
and he had been with her at her pre-natal doctor's appointment the afternoon of the
controlled buy. The doctor's office's records indicated Roberts arrived for her
appointment on March 27, 2002, shortly before 2:00 p.m. The records did not
indicate whether Thurmon was with Roberts. The doctor spent approximately 15 to
20 minutes with Roberts during the appointment. Roberts testified she and Thurmon
then returned to her apartment in Coralville, Iowa, shortly before the elementary
school let out. The controlled buy took place at 4:23 p.m. the same day at a location
30 miles from Roberts's apartment.
Thurmon also called as a witness the apartment manager of the building to
which the Cadillac was driven after the controlled buy. The apartment manager
testified Thurmon did not have an ownership interest in any unit in the building.
Thurmon's friend Robert Roberts, who made rap music with Thurmon, testified he
was familiar with Thurmon's voice and did not believe it was Thurmon's voice on the
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police recordings. On October 28, 2003, after a two-day trial, the jury returned a
guilty verdict.
At the sentencing hearing, on June 15, 2004, Thurmon stipulated he qualified
as a career offender under U.S.S.G. § 4B1.1. In light of the stipulation, the parties
agreed any remaining contested issues such as drug quantity and role in the offense
were moot. The district court determined Thurmon's total adjusted offense level was
37, criminal history category VI, and that the applicable sentencing range was 360
months to life in prison. The district court imposed a sentence of 360 months'
imprisonment, eight years of supervised release, and a $100 special assessment.
II
Thurmon argues the district court denied him the effective assistance of trial
counsel by erroneously denying his request for a voice identification expert to review
the audiotapes gathered by the police. Although Thurmon characterizes this claim
as a denial of the right to the effective assistance of counsel, we believe Thurmon's
claim is more appropriately viewed as an argument that the district court violated the
Criminal Justice Act. Section 3006A(e)(1) of the Criminal Justice Act provides:
Counsel for a person who is financially unable to obtain investigative,
expert, or other services necessary for adequate representation may
request them in an ex parte application. Upon finding, after appropriate
inquiry in an ex parte proceeding, that the services are necessary and
that the person is financially unable to obtain them, the court, or the
United States magistrate judge if the services are required in connection
with a matter over which he has jurisdiction, shall authorize counsel to
obtain the services.
18 U.S.C. § 3006A(e)(1).
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It is Thurmon's burden to establish an expert is necessary for an adequate
defense. United States v. Bertling, 370 F.3d 818, 819 (8th Cir. 2004) (citing United
States v. Valverde, 846 F.2d 513, 517 (8th Cir. 1988)). In analyzing a claim that
§ 3006A(e)(1) was violated, we consider whether Thurmon "demonstrated a
reasonable probability that the requested expert would aid in his defense and that
denial of the funding would result in an unfair trial." United States v. Ross, 210 F.3d
916, 921 (8th Cir. 2000) (citing Little v. Armontrout, 835 F.2d 1240, 1244 (8th Cir.
1987) (en banc)). We review the district court's ruling pertaining to the funding of
an expert witness under § 3006A(e) for an abuse of discretion. Id. (citing United
States v. Casal, 915 F.2d 1225, 1230 (8th Cir. 1990)).
Before the district court, Thurmon argued he needed a voice identification
expert to establish it was not his voice on the recordings. Thurmon claims the
expert's testimony could have been of substantial weight to his defense because the
videotapes did not clearly depict the individual in the Cadillac selling the drugs. We
do not believe the district court was required to appoint a voice identification expert
in this case because the facts do not reasonably suggest Thurmon was not the
individual in the Cadillac at Target who sold crack cocaine to Beard. See United
States v. Janis, 831 F.2d 773, 778 (8th Cir. 1987) (holding district court did not err
in denying request for voice analysis expert where "underlying facts do not suggest
the slightest support for [defendant's] theory of the case"). Beard, who was
acquainted with Thurmon, testified Thurmon was in the Cadillac and sold him the
crack cocaine. Throughout the transaction, Beard referred to Thurmon by his
nickname "Freak," and the purchase was arranged by a recorded call to Thurmon's
cell phone. Additionally, an officer who had three previous encounters with Thurmon
testified he recognized Thurmon as the Cadillac passed the officer's vehicle.
Thurmon's ex-girlfriend testified she recognized Thurmon on the videotape and his
voice on the audiotapes. Although Thurmon's girlfriend testified Thurmon
accompanied her to a pre-natal doctor's appointment the afternoon of the controlled
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buy, the appointment was at 2:00 p.m. in the afternoon, whereas the controlled buy
took place at 4:23 p.m.
Thurmon cites United States v. Schultz, 431 F.2d 907 (8th Cir. 1970), for the
proposition that the district court should have relied on the judgment of his defense
attorney. In Schultz, the defendant's attorney learned the defendant in the recent past
had been hospitalized as a mental patient several times, was diagnosed as a manic
depressive, and acted bizarrely. Defense counsel moved for the appointment of an
independent psychiatrist for the purpose of developing the defense that the defendant
lacked the competency to commit the crime knowingly. The district court denied the
motion. We reversed. We stated "[w]hile a trial court need not authorize an
expenditure under subdivision (e) for a mere 'fishing expedition,' it should not
withhold its authority when underlying facts reasonably suggest that further
exploration may prove beneficial to the accused in the development of a defense to
the charge." Id. at 911. We held that based on the facts the defendant's attorney had
learned there was a reasonable basis on which to investigate the defendant's
competency, and the defendant was entitled to the appointment of an independent
psychiatrist to support the defense. In the instant case, the facts did not provide
Thurmon's attorney with a reasonable basis to investigate whether the voice on the
audio recordings belonged to Thurmon.
Furthermore, Thurmon has not demonstrated a voice identification expert was
necessary for a fair trial. Thurmon was able to present his defense through witnesses
who were familiar with his voice. At trial, Robert Roberts testified it was not
Thurmon's voice on the audiotapes. Thurmon was also able to cross-examine the
government's witnesses who identified his voice on the audiotapes. Because
Thurmon failed to show a voice identification expert would aid his defense or was
necessary for a fair trial, we hold the district court did not abuse its discretion in
denying Thurmon's motion for the appointment of a voice identification expert.
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III
Thurmon challenges his sentence under Blakely and Booker, arguing the
district court erred by sentencing him as a career offender under the Guidelines
without submitting the facts necessary for the enhancement to a jury to be proved
beyond a reasonable doubt. We now know this is not the nature of a Booker error.
In United States v. Pirani, we explained the nature of the Booker error to include
"[a]ll sentences imposed by a district court that mistakenly (though understandably)
believed the Guidelines to be mandatory." 406 F.3d 543, 553 (8th Cir. 2005) (en
banc).
Because Thurmon failed in the district court to raise an objection based on
Apprendi, Blakely, or the Sixth Amendment, we review the claim for plain error.
Pirani, 406 F.3d at 550. To establish plain error, it is Thurmon's burden to establish
"(1) 'error,' (2) that is 'plain,' and (3) that 'affect[s] substantial rights.'" Johnson v.
United States, 520 U.S. 461, 467 (1997) (quoting United States v. Olano, 507 U.S.
725, 732 (1993)). If Thurmon establishes all three factors, we may exercise our
discretion to notice the forfeited error "only if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings." Id. (internal
quotations and citations omitted).
Thurmon has established the first two plain error factors. In Booker, the
Supreme Court held the mandatory federal sentencing guidelines system is
unconstitutional. The district court in this case erred "by applying the Guidelines as
mandatory, and the error is plain." Pirani, 406 F.3d at 550. In order to demonstrate
the error affected his substantial rights, Thurmon "must show a 'reasonable
probability,' based on the appellate record as a whole, that but for the error he would
have a received a more favorable sentence." Id. at 552. The district court sentenced
Thurmon at the bottom of the Guideline range. However, in Pirani, we held
"sentencing at the bottom of the range is the norm for many judges, so it is
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insufficient, without more, to demonstrate a reasonable probability that the court
would have imposed a lesser sentence absent the Booker error." Id. at 553. Our
review of the record leads us to conclude Thurmon cannot establish the third plain
error factor. Because Thurmon failed to establish the third factor, it is unnecessary
to examine whether the error "seriously affects the fairness, integrity, or public
reputation of judicial proceedings." Id.IV
The judgment and sentence are affirmed.
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