United States v. Caruthers Dukes ( 2014 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 13-1159
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Caruthers Cordale Dukes
lllllllllllllllllllll Defendant - Appellant
___________________________
Appeal from United States District Court
for the Eastern District of Arkansas
_________
Submitted: January 17, 2014
Filed: July 10, 2014
____________
Before GRUENDER, BENTON and KELLY, Circuit Judges.
____________
KELLY, Circuit Judge.
Following a three-day trial, Caruthers Cordale Dukes was convicted of
conspiracy to distribute cocaine base, in violation of 21 U.S.C. §§ 846 and
841(b)(1)(C); three counts of possession with intent to distribute cocaine base, in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); and one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The district court1
sentenced Dukes to a total of 240 months imprisonment. Dukes appeals the district
court’s denial of his motion to suppress evidence, the court’s failure to allow
additional time to review Jencks material, and the sufficiency of the evidence for the
drug charges. Having jurisdiction to consider this appeal under 28 U.S.C. § 1291, we
affirm.
I. Background
“We recite the facts in the light most favorable to the jury’s verdict.” United
States v. Stevens, 439 F.3d 983, 986 (8th Cir. 2006). Through the use of a paid
cooperating informant (CI), Special Agent (SA) Brian Tichenor of the Federal Bureau
of Investigation (FBI) became aware of an individual known as “Twin”—later
identified as Kevin Harton2—who was able to set up purchases of cocaine base (crack
cocaine) in the Little Rock area. Working on behalf of the FBI, the CI made a
number of controlled purchases through Harton. On July 28, July 29, and August 2,
2010, Harton took the CI to 1002 Park Street, Little Rock, where the CI provided
Harton with FBI buy money. After going into the residence, Harton brought crack
cocaine back to the CI on all three occasions.
On August 5, 2010, SA Tichenor obtained a search warrant for 1002 South
Park Street. When the FBI searched the residence, they seized crack cocaine, drug
paraphernalia, weapons, and items indicating Dukes lived at the house. On
1
The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.
2
Harton was ultimately indicted as a co-defendant to Dukes. We refer to
“Twin” as Harton throughout this opinion.
-2-
September 6, 2011, a grand jury sitting in the Eastern District of Arkansas returned
an eleven-count indictment against Dukes, Harton, and a third individual. Dukes was
charged in five counts.
Dukes pled not guilty and moved to suppress the evidence seized from his
residence. Following a hearing, the district court denied the motion to suppress,
finding the affidavit supported a finding of probable cause to issue a search warrant.
The court rejected Dukes’ contention that Harton was an informant on whom the FBI
relied for information, instead characterizing Harton as “an instrumentality that the
confidential informant used to effect these buys in this house.” In finding probable
cause, the district court relied in part on the surveillance that was conducted during
the three transactions. The court also found it “common sense” that Harton was
obtaining crack cocaine at 1002 South Park Street: Harton took the CI to the same
house on three separate occasions, each time leaving the house within minutes with
crack cocaine in hand.
On August 8, 2012, the jury found Dukes guilty on all counts. On January 10,
2013, Dukes was sentenced to 240 months imprisonment on the drug charges and 120
months imprisonment on the firearm charge, to be served concurrently.
II. Discussion
A. Motion to Suppress
Dukes first appeals the denial of his motion to suppress the evidence seized
during execution of the search warrant. Dukes renews his argument that the search
warrant affidavit did not provide probable cause to search his residence because
Harton was a second informant for whom no reliability information was provided.
-3-
The government counters that the affidavit did not have to provide any information
regarding Harton’s reliability because he was not acting as a government informant
when he took the CI to Dukes’ house.
“We review the denial of a motion to suppress de novo but review underlying
factual determinations for clear error, giving due weight to the inferences of the
district court and law enforcement officials.” United States v. Nichols, 574 F.3d 633,
636 (8th Cir. 2009) (quotation omitted). “The district court’s conclusion regarding
a motion to suppress will be affirmed ‘unless it is not supported by substantial
evidence on the record; it reflects an erroneous view of the applicable law; or upon
review of the entire record, the appellate court is left with the definite and firm
conviction that a mistake has been made.’” United States v. Rodriguez, 711 F.3d 928,
934–35 (8th Cir. 2013) (quoting United States v. Rodriguez-Arreola, 270 F.3d 611,
615 (8th Cir. 2001)).
“Issuance of a search warrant must be supported by probable cause, and ‘[t]he
existence of probable cause depends on whether, in the totality of the circumstances,
there is a fair probability that contraband or evidence of a crime will be found in a
particular place.’” Id. at 936 (quoting United States v. Solomon, 432 F.3d 824, 827
(8th Cir. 2005)). We “‘accord great deference to a magistrate’s determination as to
whether an affidavit establishes probable cause.’” Id. (quoting Solomon, 432 F.3d
at 827). The issuing judge should review the affidavit with a “common sense
approach and not in a hypertechnical fashion.” Solomon, 432 F.3d at 827 (quotation
omitted).
“Where probable cause depends upon information supplied by an informant,
‘[t]he core question . . . is whether the information is reliable.’” United States v.
Keys, 721 F.3d 512, 518 (8th Cir. 2013) (quoting United States v. Williams, 10 F.3d
590, 593 (8th Cir.1993)). “‘Information may be sufficiently reliable to support a
probable cause finding if . . . it is corroborated by independent evidence.’” Id.
-4-
(quoting Williams, 10 F.3d at 593). “If information from an informant is shown to
be reliable because of independent corroboration, then it is a permissible inference
that the informant is reliable and that therefore other information that the informant
provides, though uncorroborated, is also reliable.” Id. (quoting Williams, 10 F.3d at
593).
In this case, the affidavit stated the CI had worked with the FBI for
approximately one year. During that time, the CI provided information leading to
several fugitive arrests and participated in controlled narcotics purchases resulting in
search warrants. The CI came to the FBI with information that Harton was known to
arrange sales of crack cocaine. Under the supervision of the Violent Crimes-Joint
Task Force (VC-JTF), which included SA Tichenor, the CI called Harton and
arranged to meet him at the intersection of 12th and Thayer Streets in Little Rock.
Harton agreed to set up the purchase of approximately one-half ounce of crack
cocaine. Surveillance officers observed the CI enter a silver Chevrolet Impala
occupied by Harton. The affidavit stated agents were unable to maintain visual
surveillance because they did not know where the drug transaction was to take place.
However, the CI was equipped with an audio recording device during the transaction,
to which agents listened. The CI later told agents he rode in the Impala to 1002 South
Park Street, where he gave Harton $630 provided by the FBI. Harton entered the
residence and returned a short time later, handing the CI a plastic bag containing the
suspected crack cocaine. The CI and Harton then returned to the original meeting
spot. A field test was conducted on the contents of the bag, which tested positive for
the presence of cocaine, and it appeared to be the desired quantity.
The affidavit detailed two additional controlled buys. Again, the CI called
Harton requesting he set up the purchase of crack cocaine. During both transactions,
-5-
the CI met Harton at the same location and proceeded to 1002 South Park Street.3
Agents were able to maintain visual surveillance during both drug transactions and
to photograph Harton entering and exiting the residence. During the second
controlled purchase, the CI attempted to enter the residence, but was denied access.
During the second and third controlled buys, the CI again provided Harton with FBI
buy funds. Harton entered the house and returned quickly, providing the CI with a
plastic bag containing the crack cocaine. Both times the substance in the plastic bag
field-tested positive for the presence of cocaine, and the quantity was consistent in
appearance with the amount requested. The CI and the CI’s vehicle were searched
before and after each of the controlled buys.
Dukes does not challenge the reliability of the CI. Instead, he directs his
argument to the fact that the CI never dealt directly with him, only with Harton.
Dukes asserts that because the affidavit did not provide any information about the
veracity, basis of knowledge, or reliability of Harton by which the issuing judge could
assess Harton as an informant, the affidavit could not establish probable cause. He
further notes that the CI never went inside the house at 1002 South Park Street and
that Harton and his vehicle were never searched prior to the drug transactions
between the CI and Harton. Dukes argues it was equally likely Harton had the crack
cocaine on his person or hidden on the property prior to entering the house, and
therefore probable cause did not exist to search the house.
We conclude the information contained in the search warrant application
provided sufficient probable cause to issue a warrant to search Dukes’ residence.
From the affidavit, it is reasonable to infer that Harton obtained the crack cocaine he
sold to the CI from someone inside the house. “[I]t is well established that a judge
may draw reasonable inferences from the totality of the circumstances in determining
3
On the second occasion the CI drove his own vehicle to 1002 South Park
Street; on the third occasion, the CI rode in Harton’s vehicle.
-6-
whether probable cause exists to issue a warrant . . . .” United States v. Vega, 676
F.3d 708, 717 (8th Cir. 2012) (quoting United States v. Thompson, 210 F.3d 855, 860
(8th Cir. 2000)). As outlined above, the affidavit described three separate occasions
on which a reliable CI and Harton met at one location and traveled to 1002 South
Park Street. Agents conducted surveillance and were able to photograph Harton
entering and quickly exiting the residence. Harton provided the crack cocaine to the
CI only after returning to the vehicle where the CI waited. Based upon these facts,
there was a fair probability that contraband or evidence of criminal activity would be
found at 1002 South Park Street. See id.
B. Jencks Materials
Dukes next asserts the district court abused its discretion when it did not allow
his attorney additional time to review Jencks materials.4 “The Jencks Act requires
that the prosecutor disclose any statement of a witness in the possession of the United
4
Dukes also contends, for the first time on appeal, that not allowing him
sufficient time to personally review the Jencks materials violated his Sixth
Amendment right to confrontation because he was unable to provide effective input
to his attorney. “An error by the trial court, even one affecting a criminal defendant’s
constitutional right, is forfeited if not timely asserted.” United States v. Thornberg,
676 F.3d 703, 706 (8th Cir. 2012) (citation omitted). “Accordingly, our review is for
plain error.” Id. (citation omitted). In order to prevail, Dukes must show “(1) the
district court committed an error, (2) the error is clear or obvious, and (3) the error
affected his substantial rights.” Id. (quotation omitted). We have never held that a
criminal defendant has a Sixth Amendment right to a continuance in order to have
sufficient time to review Jencks materials himself. Also, Dukes has not shown how
any alleged error affected his substantial rights—in other words, that there is any
reasonable probability this lack of time “affected the outcome of the district court
proceedings.” United States v. Martin, 714 F.3d 1081, 1084 (8th Cir. 2013)
(quotation omitted). As a result, we conclude the district court did not commit plain
error.
-7-
States which relates to the subject testified to by the witness on direct examination.”
United States v. Stroud, 673 F.3d 854, 863 (8th Cir. 2012) (quotation omitted) (citing
18 U.S.C. § 3500(b)). The prosecutor provided copies of Jencks materials to defense
counsel prior to jury selection. Defense counsel then asked for “an hour or two to be
able to look over” the documents “because I know there’s a document that I’m
looking for that I’ve taken notes on that I can’t find in here because I’m just breezing
through it.” Counsel acknowledged he had already reviewed the Jencks materials at
the United States Attorney’s office before trial. Counsel specifically stated he was
“not asking to continue for the rest of the day”; he was just asking for “an hour or two
to be able to look over this.” The district court noted defense counsel would have
time over the lunch hour; counsel responded, “That’s true.” The court offered to
“revisit” the issue after lunch if counsel needed more time. A break of an hour and
fifteen minutes was taken for lunch. Defense counsel did not reiterate his request.
We construe Dukes’ argument on appeal to be that the district court erred by
not granting him a continuance of “an hour or two.” We review a district court’s
denial of a request for continuance for an abuse of discretion and will only reverse if
the moving party shows prejudice by the denial. United States v. Wright, 682 F.3d
1088, 1090 (8th Cir. 2012). “District courts are afforded broad discretion when ruling
on requests for continuances.” United States v. Chahia, 544 F.3d 890, 896 (8th Cir.
2008) (quotation omitted). The district court did not abuse its discretion by
suggesting counsel use the lunch hour as his requested additional time. Although the
district court did not grant Dukes a “continuance,” he essentially got what he had
requested: “an hour or two” to review the Jencks materials. The court told Dukes’
counsel the issue of additional time to review documents could be “revisit[ed]” if the
lunch hour proved insufficient, and Dukes’ counsel did not request additional time.
He therefore has waived the argument that the time given was inadequate. See United
States v. Booker, 576 F.3d 506, 511 (8th Cir. 2009) (waived claims unreviewable on
appeal).
-8-
C. Sufficiency of the Evidence
Dukes next argues there was insufficient evidence to support his drug
convictions. “‘We review a challenge to the sufficiency of the evidence deferentially
. . . and affirm if any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.’” United States v. Anderson, 674 F.3d 821, 828
(8th Cir. 2012) (quoting United States v. Augustine, 663 F.3d 367, 373 (8th Cir.
2011)). “‘[W]e look at the evidence in the light most favorable to the verdict and
accept as established all reasonable inferences supporting the verdict.’” Augustine,
663 F.3d at 373 (quoting United States v. Campa-Fabela, 210 F.3d 837, 839 (8th Cir.
2000)).
To convict Dukes of conspiracy to possess with intent to distribute cocaine
base, the government needed to prove beyond a reasonable doubt that “(1) there was
an agreement to achieve an illegal purpose, (2) that [Dukes] knew of the agreement,
and (3) that [Dukes] knowingly participated in the conspiracy.” Chahia, 544 F.3d at
893–94 (quotation omitted). To convict Dukes of possession with intent to distribute
cocaine base, the government had to prove beyond a reasonable doubt that Dukes
“(1) knowingly possessed a controlled substance and (2) intended to distribute some
or all of it.” United States v. Thompson, 686 F.3d 575, 583 (8th Cir. 2012) (citation
omitted).
Dukes asserts the evidence is insufficient because Harton, whose credibility
Dukes questioned, was the only witness who could testify to receiving drugs from
Dukes. Dukes testified at trial. He did not dispute having ties to the house at 1002
South Park Street, including paying rent and keeping his dogs in the utility room, but
he denied selling drugs to Harton. Harton testified that on July 28, July 29, and
August 2, 2010, he obtained crack cocaine from Dukes inside the residence at 1002
South Park Street, which he then sold to the CI. He testified Dukes knew he was
coming to the house because he called Dukes each time before taking the CI there.
-9-
Harton further testified that a surveillance photo taken during the controlled buy on
July 29 depicted Dukes peeking out the front door of the residence as Harton was
going up the steps. The photographs of Harton at the house on July 29 and August
2 and the CI’s audio recordings corroborate Harton’s testimony. The CI and law
enforcement officers also testified that Harton brought the CI to 1002 South Park
Street, where the CI was provided with the drugs only after Harton returned from the
house.
On cross-examination, Dukes asked Harton about an affidavit Harton signed
while in jail, recanting his statements that Dukes was his supplier. The affidavit was
notarized by a jailor, who also testified Harton signed the affidavit. Harton admitted
he had signed such an affidavit, but he insisted he had torn it up and thrown it away.
Based on Harton’s statement regarding the affidavit, Dukes argues the jury should not
have believed any of Harton’s testimony. “We do not weigh the evidence or witness
credibility because the jury has the sole responsibility to resolve conflicts or
contradictions in testimony.” United States v. Alexander, 714 F.3d 1085, 1090 (8th
Cir. 2013) (quotation omitted). “The jury’s credibility determinations are virtually
unreviewable on appeal.” Id. (quotation omitted). We accord the jury’s verdict the
“benefit of all reasonable inferences.” United States v. Moya, 690 F.3d 944, 950 (8th
Cir. 2012) (quotation omitted). A jury could reasonably infer that Harton was
obtaining crack cocaine at 1002 South Park Street on July 28, July 29, and August 2,
2010. It was also reasonable for the jury to credit Harton’s testimony that Dukes was
the person who gave him the crack cocaine on those dates. We find there was more
than substantial evidence to support the jury’s verdicts.
III. Conclusion
Based on the foregoing, we affirm.
____________________________
-10-