United States v. Mark Shore , 700 F.3d 366 ( 2012 )

United States Court of Appeals
For the Eighth Circuit
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No. 12-1089
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Mark Edwin Shores
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: September 21, 2012
Filed: November 26, 2012
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Before BYE, GRUENDER, and SHEPHERD, Circuit Judges.
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GRUENDER, Circuit Judge.
A jury found Mark Shores guilty of six counts related to firearms and
possession of controlled substances with intent to distribute. After finding Shores
was an armed career criminal under 18 U.S.C. § 924(e)(1), the district court1
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The Honorable Carol E. Jackson, United States District Judge for the Eastern
District of Missouri.
sentenced Shores to 322 months’ imprisonment. Shores appeals his convictions and
sentence, and we affirm.
I. Background
On September 16, 2009, law enforcement officers executed a search warrant
at 3714 Melba Place in St. Louis. Four adults, including Mark Shores, were present
in the home at the time. Officers seized 4.48 grams of cocaine base (crack), 2.38
grams of heroin, $2,740 in cash, and a variety of drug-related items including a coffee
grinder and scales covered with heroin residue. The results of this search led to a
federal arrest warrant, which officers executed at the same address on September 9,
2010. At the time of the arrest, Shores’s wife consented to a search of the premises.
Officers recovered a revolver and an additional 5.84 grams of heroin. Shores was
charged with, and a jury found him guilty of, two counts of possessing heroin with
intent to distribute, one count of possessing crack with intent to distribute,
maintaining a drug-involved premises, being a felon in possession of a firearm, and
possessing a firearm in furtherance of a drug trafficking crime.
The district court sentenced Shores to concurrent 240-month sentences for each
of the drug-related offenses. Shores received another concurrent sentence of 262
months for being an armed career criminal in possession of a firearm. A mandatory
consecutive term of 60 months’ imprisonment was added pursuant to 18 U.S.C.
§ 924(c) because the possession of the firearm was in furtherance of a drug trafficking
crime. In total, Shores received a sentence of 322 months’ imprisonment.
II. Discussion
A. Alleged 404(b) evidence
Shores first argues reversal is warranted because the district court admitted
evidence in violation of Federal Rule of Evidence 404(b), which allows evidence of
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uncharged crimes, wrongs, or acts to be admitted for certain limited purposes, but
only if the prosecution provides notice in advance of trial of its intent to use such
evidence. During the trial Detective Anthony Boettigheimer—one of the officers
who executed the search warrant at 3714 Melba Place on September 16,
2009—testified that on September 15, 2009, he had witnessed Shores participating
in a hand-to-hand narcotics transaction outside of the same residence. Shores did not
object to the admission of this evidence until just prior to closing arguments, when
he argued that this testimony did not fall within one of the permissible Rule 404(b)
purposes but instead was being introduced as substantive evidence of Shores’s
propensity to engage in drug trafficking activities. Shores further argued that even
if the testimony was admissible under Rule 404(b), the Government had failed to
provide the requisite notice of its intent to use such evidence in advance of trial. The
Government concedes it did not provide notice of this testimony.
Although we ordinarily review a district court’s decision to admit evidence for
abuse of discretion, where a party has failed to make a timely objection, we will
review only for plain error. United States v. Elbert, 561 F.3d 771, 775 (8th Cir.
2009). Shores did not make a timely objection because he did not object “at the
earliest possible opportunity after the ground of objection be[came] apparent.”
United States v. Carter, 270 F.3d 731, 735 (8th Cir. 2001) (quoting Terrell v. Poland,
744 F.2d 637, 638-39 (8th Cir. 1984)). Therefore we review the admission of this
testimony for plain error. United States v. Simons, 614 F.3d 475, 479 (8th Cir. 2010).
Here we find no error, much less plain error, because the testimony referred to
charged conduct and therefore was not subject to Rule 404(b). See United States v.
Adams, 604 F.3d 596, 599 (8th Cir. 2010). The hand-to-hand transaction occurred
between Shores and a confidential informant (“CI”) just outside of 3714 Melba Place
on September 15, 2009. Count Three of the superseding indictment, “Maintaining
a Drug Involved Premises,” charges that “[o]n or about September 16, 2009,” Shores
“manage[d] and controll[ed] the premises of 3714 Melba Place . . . for the purpose of
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unlawfully manufacturing, storing, distributing and using a controlled substance.”
Counts One and Two charged possession of controlled substances with intent to
distribute likewise occurring “[o]n or about September 16, 2009.” The “on or about”
language in an indictment “relieves the government of proving that the crime charged
occurred on a specific date, so long as it occurred within a reasonable time of the date
specified.” United States v. Youngman, 481 F.3d 1015, 1019 (8th Cir. 2007) (quoting
United States v. Duke, 940 F.2d 1113, 1120 (8th Cir. 1991)). Whether a defendant
has “maintained” a drug-involved premises is a “fact-intensive issue,” and requires
more than a “defendant’s mere presence during a police search of a residence.”
United States v. Payton, 636 F.3d 1027, 1043 (8th Cir. 2011). Shores’s participation
in this transaction outside of 3714 Melba Place the day before drugs were seized at
the residence supports the inference that one of the purposes for which Shores
maintained those premises during the relevant time period was the distribution of
drugs. See United States v. Holliman, 291 F.3d 498, 502 (8th Cir. 2002). Similarly,
testimony describing Shores’s participation in a hand-to-hand transaction on
September 15, 2009 also falls within the conduct charged in the two possession-with-
intent-to-distribute charges. Cf. United States v. Williams, 165 F.3d 1193, 1195 (8th
Cir. 1999) (holding that a witness’s description of the defendant giving him
methamphetamine in exchange for a car was admissible because it “relates to events
occurring around the time period alleged in the superseding indictment” and tended
to prove “an element of the offense of possession with intent to deliver
methamphetamine”). We conclude that the evidence is part of the charged conduct
and therefore not within the ambit of Rule 404(b). See Holliman, 291 F.3d at 501-02.
Moreover, even if the September 15 hand-to-hand transaction was not part of
the charged conduct, we conclude that Rule 404(b) would not bar this testimony
because it is “sufficiently intertwined” with the charged offenses. United States v.
Molina, 172 F.3d 1048, 1055 (8th Cir. 1999) (“It is well established that where
evidence of another crime is so intertwined with the offense of conviction that proof
of one incidentally involves the other or explains the circumstances of the other, it
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is . . . not governed by Rule 404(b).” (internal citation omitted)). In Molina, we
upheld the admission of testimony by an officer regarding a controlled buy from the
defendant, even though this buy was not included in the charged conduct. The initial
controlled buy was intrinsic to the charged conduct because it “provided the police
with a portion of the probable cause that allowed the officers to obtain a [search]
warrant.” Id. Just as the testimony in Molina explained the source of the probable
cause, the testimony regarding the hand-to-hand transaction formed a critical
component of the officer’s basis for obtaining the warrant to search Shores’s
residence and therefore was also intrinsic evidence. Thus, the district court did not
commit plain error in admitting this evidence.
B. Employment status testimony
Shores next argues the Government violated Federal Rule of Criminal
Procedure 16(a)(1)(A), which requires the government to disclose to the defendant
upon his request the substance of any “oral statements made by defendant ‘in
response to interrogation by any person then known to the defendant to be a
government agent.’” United States v. Hoelscher, 914 F.2d 1527, 1535 (8th Cir. 1990)
(quoting United States v. Vitale, 728 F.2d 1090, 1093-94 (8th Cir. 1984)). Shores
submitted a Rule 16 request, and the Government did turn over materials to him
pursuant to this request. Nonetheless, Shores contends that the Government did not
comply with its responsibilities under Rule 16 when it failed to disclose a statement
Shores made to Detective Boettigheimer during the search of 3714 Melba Place on
September 16, 2009. Shores had indicated to Detective Boettigheimer that he was
unemployed, and the detective repeated this statement at trial. In response to Shores’s
objection, the district court told the Government to move on but did not strike the
testimony. We review the district court’s evidentiary rulings for abuse of discretion.
United States v. Shillingstad, 632 F.3d 1031, 1034 (8th Cir. 2011). An “abuse of
discretion exists only if prior nondisclosure of the evidence prejudiced the substantial
rights of the defendant.” United States v. Williams, 902 F.2d 675, 677 (8th Cir.
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1990). In this context, a defendant’s rights are substantially prejudiced if it is
“reasonably probable that the result of the trial would have been different” had the
evidence been disclosed. United States v. Ben M. Hogan Co., Inc., 769 F.2d 1293,
1301 (8th Cir. 1985), vacated on other grounds, 478 U.S. 1016 (1986).
Shores argues the admission of his statement regarding his lack of employment
seriously harmed his planned defense to portray the $2,740 found in a trash can in his
home as nothing more than a rudimentary bank account. Shores also claims that the
lack of notice harmed his ability accurately to gauge the value of going to trial over
accepting a plea bargain. The Government claims that it effectively gave Shores
notice when it provided him with a copy of the face sheet from the applicable law
enforcement incident report. The face sheet identifies Shores as “unemployed,” even
though the source of this information is not specifically identified. Regardless of
whether this face sheet is sufficient to constitute disclosure of a prior statement made
by the defendant, admission of this testimony does not rise to the level of reversible
error.
First, the testimony was cumulative of other evidence introduced by the
Government tending to show that Shores was unemployed. A CI who testified to
purchasing heroin from Shores over the course of many months answered “no” when
asked if he had “ever know[n] [Shores] to hold a job.” The admission of
substantively similar evidence through another witness blunts any possible prejudice.
United States v. Brown, 871 F.2d 80, 82 (8th Cir. 1989) (“The statement [admitted in
violation of Rule 16(a)(1)(A)] was not critical to the government’s case because other
testimony established [the fact at issue].”); see also Williams, 902 F.2d at 677.
Second, the undisclosed statement regarding Shores’s employment status went
to an ancillary aspect of his defense strategy, and Shores’s attempt to provide an
innocuous account of the cash in his garbage can is implausible when viewed against
the backdrop of the substantial evidence of his guilt. See United States v. Barrera,
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628 F.3d 1004, 1009 (8th Cir. 2011). After receiving a tip from the CI that Shores
was involved “with drugs and guns,” Detective Boettigheimer went to 3714 Melba
Place and observed Shores participating in a hand-to-hand transaction in front of the
residence. When the officer executed a search warrant there the next day, he found
Shores sitting at the kitchen table. Alongside Shores in the kitchen were a variety of
tools and implements associated with drug distribution, such as a coffee grinder and
scales (both covered with heroin residue), latex and vinyl gloves, razor blades,
surgical masks, and Dormin (a chemical commonly mixed with heroin). Close at
hand in the dining room, the police found heroin and crack packaged for distribution.
When the police arrested Shores at the same residence one year later, they found him
sleeping in a bedroom. A nearby dresser contained a loaded .38-caliber revolver and
two plastic bags containing heroin. In light of this other evidence connecting Shores
to the drugs found at the home, there is no reasonable probability that the outcome of
the trial would have been different if the evidence of his lack of employment had not
been admitted. See United States v. Jeanpierre, 636 F.3d 416, 424 (8th Cir. 2011).
Finally, the argument that Shores may have opted to accept a government plea
bargain had this statement been more explicitly disclosed is too speculative to warrant
a finding of prejudice. See United States v. Clark, 385 F.3d 609, 620 (6th Cir. 2004);
cf. Engelen v. United States, 68 F.3d 238, 241 (8th Cir. 1995).
C. Evidence of dangerousness of heroin
During the direct examination of Detective Edward Clay, the Government
inquired as to the “level of dangerousness” of heroin. The officer responded by first
characterizing heroin as the “most dangerous” street drug and then citing the large
number of recent heroin-related deaths. Immediately, Shores objected to the
testimony based on Rule 403. Shores contends that the district court instructed the
jury to disregard the testimony regarding the heroin-related deaths but implicitly
allowed the characterization of heroin as the most dangerous street drug to stand. The
final jury instructions contained a general reminder to the jury to disregard any
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testimony stricken from the record. Shores insists he was unfairly prejudiced by the
inflammatory nature of this testimony.
The typical cure for a violation of Rule 403 is to strike the testimony and
provide appropriate instructions to the jury. United States v. Brandon, 521 F.3d
1019, 1026 (8th Cir. 2008). “It is generally within the discretion of the district court
to decide whether the fairness of a trial has been compromised,” id., and we are
reluctant to find unfair prejudice where the district court provided a cautionary
instruction. United States v. Zierke, 618 F.3d 755, 759 (8th Cir. 2010). The district
court made clear to the jury that heroin deaths were not a relevant consideration in
this case. Particularly given the substantial evidence of guilt submitted by the
Government, the limited prejudicial effect of this testimony does not warrant a new
trial. See United States v. Gettel, 474 F.3d 1081, 1088 (8th Cir. 2007) (finding that
although “the risk of prejudice was not insignificant, it was adequately diminished by
the District Court’s cautionary instruction”); United States v. Sherman, 440 F.3d 982,
988 (8th Cir. 2006) (finding that “the exposure of a jury to improper testimony” was
cured by a prompt instruction to disregard the statements, especially given “the
context of the entire trial, which provided substantial evidence” of the defendant’s
guilt).
Even if it would have been reasonable for the district court also to strike
Detective Clay’s reference to heroin’s comparative dangerousness, we will not
reverse a conviction if the error was harmless. United States v. Donnell, 596 F.3d
913, 919 (8th Cir. 2010). The court’s failure to strike this portion of Detective Clay’s
testimony was harmless error because the testimony was incapable of having “a
substantial influence on the jury’s verdict.” United States v. Smith, 591 F.3d 974, 979
(8th Cir. 2010) (quoting United States v. Haskell, 468 F.3d 1064, 1074 (8th Cir.
2006)). The jury knew heroin to be an illegal drug and so likely had some awareness
it was a dangerous substance. Even if the jury believed heroin to be the most
dangerous street drug, “such a belief would not make the other evidence of [Shores’s]
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guilt more credible or less credible,” which mitigates the impact of the testimony.
United States v. Lupino, 301 F.3d 642, 647 (8th Cir. 2002). Furthermore, any
assertion that the connection between heroin use and high fatalities inappropriately
influenced the jury is belied by the jury’s acquittal on count Four, which charged
possession of heroin on April 7, 2010 with intent to distribute.
D. Confrontation Clause
Shores next argues the Government violated his Sixth Amendment
Confrontation Clause rights because he did not have an opportunity to cross-examine
the CI whom Detective Boettigheimer identified as the source of the initial tip that
Shores was involved “with drugs and guns.” The Sixth Amendment secures the right
of an accused “to be confronted with the witnesses against him.” This protection
serves to bar the introduction of testimonial hearsay. Crawford v. Washington, 541
U.S. 36, 51 (2004). The CI’s statement clearly falls within the type of out-of-court
statement categorized as “testimonial.” See Michigan v. Bryant, 562 U.S.---, 131 S.
Ct. 1143, 1155 (2011). Where an out-of-court statement is offered not for the truth
of the matter asserted but rather “to explain the reasons for or propriety of a police
investigation,” then it is not hearsay and does not implicate the Confrontation Clause.
United States v. Malik, 345 F.3d 999, 1001 (8th Cir. 2003) (quoting United States v.
Davis, 154 F.3d 772, 778 (8th Cir. 1998)). However, such statements will only be
considered context for the investigation—and thus outside the realm of hearsay—if
“the propriety of the investigation is at issue in the trial.” United States v. Holmes,
620 F.3d 836, 841 (8th Cir. 2010).
Shores insists he bypassed any criticism of the propriety of the investigation
because he conceded the validity of the search warrant under which the drugs were
seized. Nevertheless, the propriety of an investigation encompasses more than the
validity of a search warrant. From the early moments of the trial, it was clear that
Shores would be premising his defense on the theory that he was a victim of
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government targeting. Shores undeniably called into question the propriety of the
investigation during his opening statement when his counsel asked the jury to reflect
upon why “Shores [was] the one person taken away that day,” despite the presence
of three other adults in the home when the drugs were seized. The challenged
statement was offered “only to show why the officers conducted their investigation
in the way they did,” namely by focusing their attention on Shores. See United States
v. Brooks, 645 F.3d 971, 977 (8th Cir. 2011). Therefore, the district court did not
abuse its discretion in admitting this evidence.
E. Jury Instruction No. 20
Shores asserts that Instruction No. 20, which set forth factors for the jury to
consider when determining whether Shores had the intent to distribute the controlled
substances he possessed, improperly bolstered the testimony of Detective Clay. We
review jury instructions for abuse of discretion, and “must determine whether the
instructions, taken as a whole and viewed in light of the evidence and applicable law,
fairly and adequately submitted the issues in the case to the jury.” United States v.
Dvorak, 617 F.3d 1017, 1024 (8th Cir. 2010) (quoting United States v. Beckman, 222
F.3d 512, 520 (8th Cir. 2000)). As long as the jury instructions “properly informed
the jury of the law to be applied to the case,” then the district court did not abuse its
discretion. United States v. Ryder, 414 F.3d 908, 917 (8th Cir. 2005).
Detective Clay testified as to why the circumstances in which the drugs were
found in 3714 Melba Place reflected Shores’s intent to distribute them. In particular,
he cited the quantity and packaging of heroin, the absence of any drug-ingestion
paraphernalia, and the presence of multiple types of drugs and certain tools that
would facilitate distribution, such as scales. By comparison, Instruction No. 20
stated:
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In determining a person’s intent to distribute a controlled substance, the
jury may consider, among other things, the quantity of the controlled
substance; the manner in which the controlled substance was packaged;
the presence of items indicative of distribution including scales,
grinders, packaging materials, cutting agents; the street value of the
controlled substance; the presence of a firearm; and any cash discovered
with the controlled substance. The government must prove beyond a
reasonable doubt that the defendant intended to distribute the controlled
substance alleged in the indictment.
According to Shores, Instruction No. 20 did not fairly submit the issue to the jury
because the formulation implicitly endorsed Detective Clay’s testimony by mirroring
the factors he relied upon when describing the basis for his opinion.
To the extent there is overlap, it is hardly surprising that Detective Clay’s
presentation, like the jury instruction, would focus on the types of circumstantial
evidence previously identified as sufficient to support a finding of intent to distribute.
See, e.g., United States v. McClellon, 578 F.3d 846, 856 (8th Cir. 2009) (mentioning
drug quantity, packaging, drug paraphernalia, and presence of cash, firearms, or tools
such as a scale); United States v. Boyd, 180 F.3d 967, 980 (8th Cir. 1999).
Furthermore, in recent decisions we have affirmed substantially similar jury
instructions regarding intent to distribute. See United States v. Thompson, 686 F.3d
575, 579 (8th Cir. 2012); United States v. Parish, 606 F.3d 480, 488-89 (8th Cir.
2010). Instruction No. 20 accurately reflects the law to be applied, and therefore we
find no abuse of discretion.
F. Sentencing
Shores raises two challenges to his sentence of 322 months’ imprisonment.
Because he did not present a timely objection as to either, we review for plain error.
United States v. Nissen, 666 F.3d 486, 490 (8th Cir. 2012). To obtain relief from the
sentence under this standard of review, Shores must show an error that is both plain
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and affects his substantial rights, and the error must be of a type that “seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” See id.He argues first that the district court committed a procedural error when it failed to
give adequate consideration to all of the sentencing factors set forth in 18 U.S.C.
§ 3553(a), and second that application of the enhanced mandatory minimum sentence
violated his Sixth Amendment rights.
When reviewing a sentence, we must “ensure that the district court committed
no significant procedural error, such as . . . failing to consider the [18 U.S.C.]
§ 3553(a) factors.” United States v. Buesing, 615 F.3d 971, 974-75 (8th Cir. 2010)
(quoting Gall v. United States, 552 U.S. 38, 51 (2007)). Shores argues that the
district court erred by not crediting the relatively small amounts of heroin and cocaine
found at 3714 Melba Place as compared to other cases involving possession with
intent to distribute. The district court informed Shores that regardless of whether he
was “a major drug dealer or not, [that] really doesn’t factor into the calculation[,] . . . .
it really doesn’t help very much to compare you to people at other ends of the
spectrum.” Under Shores’s theory, the district court thereby failed to consider
§ 3553(a)(1), which requires the sentencing court to take into account “the nature and
circumstances of the offense,” and § 3553(a)(6), which refers to “the need to avoid
unwarranted sentence disparities among defendants with similar records who have
been found guilty of similar conduct.” Shores also contends the district court ignored
§ 3553(a)(2)(B) and (C), which address the need to achieve adequate deterrence and
protect the public from further crimes, because a sentence of 322 months for the fifty-
one-year-old Shores is effectively an unwarranted life sentence for a relatively small
amount of drugs.
A district court need not quote verbatim all of the factors listed in § 3553(a).
United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009). Instead, a district court
can generally demonstrate its consideration of the factors by referring to some of the
statute’s relevant considerations. United States v. Gray, 533 F.3d 942, 944 (8th Cir.
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2008). In this case, the district court considered the particular quantities of controlled
substances found in Shores’s possession. The district court noted that its decision
addressed the sentencing goals of “punishment, deterrence, and incapacitation,” and
we have found this type of reference to § 3553(a)’s sentencing objectives to be
sufficient to indicate consideration of the requisite statutory provisions. See United
States v. Bryant, 606 F.3d 912, 919 (8th Cir. 2010). Although the district court did
not explicitly mention Shores’s age, it is not required to “specifically respond to every
argument made by the defendant.” United States v. Struzik, 572 F.3d 484, 487 (8th
Cir. 2009). The court did refer more generally to Shores’s history, characteristics,
and the information presented in the Presentence Report, and we are satisfied the
district court fully considered all mitigating and aggravating factors at issue.2 See id.Finally, Shores argues that the district court violated his Sixth Amendment
right to have a jury find any fact that increases his sentence when it found that he had
three qualifying prior convictions for purposes of the Armed Career Criminal Act.
A jury is not required, however, to find the “fact” of a prior conviction, and
accordingly we reject Shores’s argument. See, e.g., United States v. Campbell, 270
F.3d 702, 708 (8th Cir. 2001).
For the foregoing reasons, we affirm Shores’s convictions and sentence.
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2
To the extent Shores also implies that the failure to consider or give
appropriate weight to the § 3553(a) factors led to a substantively unreasonable
sentence, we note that a term of 322 months’ imprisonment was at the bottom of the
applicable Guidelines range. A “within-Guidelines sentence is presumptively
reasonable on appeal,” United States v. Borromeo, 657 F.3d 754, 756 (8th Cir. 2011),
and Shores has not presented us with any reasons to deviate from this presumption.
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