United States v. Bobbie Keys ( 2013 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-3259
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Bobbie H. Keys
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the District of Nebraska - Lincoln
____________
Submitted: June 13, 2013
Filed: July 18, 2013
____________
Before COLLOTON, GRUENDER, and BENTON, Circuit Judges.
____________
GRUENDER, Circuit Judge.
Bobbie Keys was convicted by a jury of conspiracy to distribute 280 grams or
more of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846. He
appeals the district court’s1 denial of his motion to suppress and request for a Franks
1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska, adopting the report and recommendations of the Honorable Cheryl R.
hearing, his motion for judgment of acquittal based on sufficiency of the evidence,
and his motions to exclude testimony based on alleged Brady violations. For the
reasons discussed below, we affirm.
I. Background
In the summer of 2009, detectives with the Lincoln, Nebraska police
department were investigating the distribution of large quantities of cocaine and crack
cocaine in Lincoln. A prospective cooperating source, Zachari Kilcoin, indicated
during a proffer interview that an individual named Bobbie Keys, whom Kilcoin
guessed to be twenty-five or twenty-six years of age, was a major source of the crack
cocaine that was reaching Lincoln. Kilcoin claimed that he had driven to Keys’s
residence near the intersection of 7th and Georgia streets in Kansas City, Kansas
approximately seventeen times since 2006, sometimes by himself and sometimes with
a second individual, Michael Mitchell, purchasing from four to twelve ounces of
crack cocaine from Keys each time. Kilcoin also claimed to have seen additional
amounts of crack cocaine at Keys’s residence on each occasion, sometimes as much
as a kilogram, and to have seen Keys sell crack cocaine to other individuals.
The Lincoln detectives forwarded this information to detectives with the
Kansas City police department. The Kansas City detectives identified a twenty-eight-
year-old resident of Kansas City named Bobbie Keys and returned a photograph of
him to the Lincoln detectives. At a follow-up interview, Kilcoin identified Keys’s
photograph from a stack of photographs presented by the Lincoln detectives. When
asked to provide a further description of Keys’s residence, Kilcoin stated that Keys
drove a blue Pontiac Firebird and that his residence was identifiable by a stairwell
leading from a porch to the driveway area.
Zwart, United States Magistrate Judge for the District of Nebraska, with respect to
the motion for a Franks hearing and motion to suppress.
-2-
The Lincoln detectives next interviewed Mitchell, whom Kilcoin had identified
as accompanying him on several trips to Keys’s residence. Mitchell, who became a
second cooperating source, corroborated many of the details offered by Kilcoin
regarding their trips to Kansas City to purchase crack cocaine. Mitchell described the
location of the residence where the transactions occurred as near Quindaro Boulevard.
Although Mitchell knew the seller at that residence only by the name “Chicken,” he
identified the photograph of Keys as “Chicken.”
On October 20, 2009, the detectives arranged for Kilcoin to place a recorded
telephone call to Keys. A portion of their conversation was as follows:
Kilcoin: I’m scraping some shit up now, so in a few—like a day or so
or something, I can probably come touch you.
Keys: All right. Bet. Let me know what’s up.
Kilcoin: Hey, you going to have the four way for me?
Keys: Yeah.
***
Kilcoin: All right. Well, shit, I’m about to touch you—I’m about to
touch you, like, tomorrow or the next day when I get everything
together, nig, and then I’ll pull up on you.
Keys: All right. Bet.
Kilcoin characterized this exchange to the detectives as Kilcoin informing Keys that
he was attempting to get together sufficient funds to buy four ounces of crack
cocaine, and Keys agreeing that Kilcoin could visit him and that Keys would be able
to sell him four ounces of crack cocaine. Also on October 20, 2009, using a satellite
and street view image database, Kilcoin was able to direct the detectives to the
-3-
precise location of Keys’s residence, which the detectives identified as 2701 North
Early Street.
On November 11, 2009, Kansas City detectives confirmed that Keys listed the
2701 North Early address on his driver’s license, had cited that address as his
residence to police after an arrest earlier that summer, and was currently the primary
account holder for utilities at that address. Surveillance revealed that Keys was
present at the residence and that a blue Pontiac Firebird was parked in the driveway.
That afternoon, Kilcoin placed another recorded telephone call to Keys, and a portion
of that conversation was as follows:
Kilcoin: . . . Well, just have—just do the four because that’s all I got
enough bread for is just four of them, so . . .
Keys: Okay. All right.
***
Keys: All right. [W]ell, like, when you coming? Tomorrow or today
or what?
Kilcoin: No, tomorrow. I ain’t coming today.
***
Keys: Just hit me when you’re on your way?
Kilcoin: Yep.
Keys: All right. Bet.
Kilcoin: All right. So, yeah what do you want for the four of them?
Keys: Uhhh. . . .
-4-
***
Kilcoin: I got 4,000, man, so . . .
Keys: Okay. Yeah, I think I—I can squeeze them in for that.
Kilcoin: All right. Cool.
Keys: All right. Bet.
Kilcoin placed a final recorded telephone call to Keys the next day, and a
portion of that conversation was as follows:
Kilcoin: . . . [J]ust on the freeway about—about, like—oh, shit, I’d say
about 50 miles away.
Keys: All right. Bet. Okay.
Kilcoin: You got that shit there, man . . .?
***
Kilcoin: You—you got it there with you?
Keys: Yeah. I was just waiting until you got close, and you already
know I packed it up.
After that call, Kansas City detective Eric Jones summarized the events above
in an application to the Kansas state court in Wyandotte County for a search warrant
for the 2701 North Early residence. In his affidavit in support, Jones described the
recorded telephone calls as follows:
On October 20, 2009 CS1 [Kilcoin, cooperating source #1] made a
recorded phone call to KEYS. CS1 advised that CS1 was trying to get
-5-
some money together and wanted to buy some “crack” from KEYS.
KEYS said that CS1 could come down and confirmed that he could sell
CS1 four ounces.
***
At 1:10 p.m. [on November 11, 2009], Detectives utilized CS1 to make
a controlled phone call to KEYS. CS1 informed KEYS that he needed
4 ounces of “crack” cocaine and would be down “tomorrow”. . . .
On November 12, 2009 at 12:22 pm CS1 called KEYS about the drug
transaction. CS1 asked, “hey do you have that shit with you?” KEYS
responded, “yeah, I was waiting for you to get close, you know I already
picked [sic] it up.[”]
The search warrant issued, and detectives executed the search at 2701 North
Early Street about ninety minutes after the final telephone call. The search uncovered
a set of scales and a Pyrex measuring cup each coated with crack cocaine residue,
plastic sandwich baggies with missing corners, a razor blade, and a bottle of Inositol.
Apart from the residue, however, no crack cocaine was discovered.
Keys was charged with conspiracy to distribute 280 grams or more of crack
cocaine. He moved to suppress the evidence obtained from the search warrant and
requested a Franks hearing, alleging that the affidavit contained false statements
because it characterized the recorded telephone calls as including the term “crack,”
yet the term “crack” never was expressly mentioned in any of the recorded telephone
calls. The district court denied the motion without a hearing, and the case proceeded
to a jury trial.
The Government’s witnesses included Kilcoin, Mitchell, and several other
individuals who testified that they occasionally accompanied one or both of Kilcoin
and Mitchell to Keys’s house and observed Keys engage in various aspects of crack
cocaine trafficking. Keys objected to the admission of testimony from three
-6-
witnesses because it contained “new” information that was not disclosed by the
Government prior to trial. Kilcoin’s girlfriend, Anisha Evans, and his mother, Lynda
Schaaf, each were expected to testify merely about accompanying Kilcoin and
Mitchell on some of their trips to Keys’s residence. However, Evans also testified
that she independently had purchased crack cocaine from Keys, and Schaaf testified
that she had observed a scale on the kitchen counter in the residence. In addition,
Mitchell disclosed for the first time that he had seen additional individuals buying
crack cocaine at Keys’s residence. The Government stated that the challenged
testimony was “new” to the Government as well and that it was not disclosed in any
reports or statements from the respective witnesses. The district court allowed the
testimony and instructed Keys that he was free to cross-examine the witnesses on
their failure to disclose the information during previous interviews.
At the close of the Government’s evidence, Keys moved for acquittal pursuant
to Rule 29 of the Federal Rules of Criminal Procedure. The district court denied the
motion. As part of the defense’s evidence, Keys testified that, although he made
personal use of crack cocaine, he never distributed it. Keys also testified that the
recorded telephone conversations were a discussion of a potential transaction between
himself and Kilcoin involving a vehicle and four tire rims, rather than crack cocaine.
At the close of evidence, Keys renewed his Rule 29 motion, which again was denied.
The jury returned a verdict of guilty, and the district court sentenced Keys to 121
months’ imprisonment. On appeal, Keys challenges the denial of his request for a
Franks hearing and motion to suppress and the denial of his Rule 29 motion for
acquittal. He also alleges that the introduction of “new” testimony by Evans, Schaaf,
and Mitchell constitutes a Brady violation necessitating a new trial.
-7-
II. Discussion
A. Motion to Suppress and Request for Franks Hearing
Keys contends that the search warrant was obtained through the use of false
statements in the supporting affidavit and that the district court should have granted
a hearing to investigate the issue under Franks v. Delaware, 438 U.S. 154 (1978).
Keys’s argument turns on the use of the term “crack,” in quotation marks, in the
affidavit description of the recorded telephone calls. Because the transcripts of the
calls indicate that the term “crack” was never audibly used in the conversations,2
Keys argues that the inclusion of the term in quotation marks in the affidavit was
intended to mislead the issuing court into believing that the recorded conversations
contained express references to a drug transaction, masking innocent alternative
interpretations of the conversations. The Government counters that the term “crack”
was placed in quotation marks throughout the affidavit, rather than solely in the
sections describing the telephone calls, and that the quotation marks were used
merely to designate that the term “crack” is “a slang, common or short form for a
controlled substance, cocaine base.”
“We review the denial of a request for a Franks hearing for abuse of
discretion.” United States v. Crissler, 539 F.3d 831, 833 (8th Cir. 2008) (quoting
United States v. Jansen, 470 F.3d 762, 766 (8th Cir. 2006)). “In order to obtain a
Franks hearing, a defendant must make a substantial preliminary showing of a false
or reckless statement or omission and must also show that the alleged false statement
or omission was necessary to the finding of probable cause.” United States v. Gabrio,
295 F.3d 880, 883 (8th Cir. 2002). “The type of showing required is not easily met.”
Id.
2
The district court left open the possibility that the term “crack” may have been
used in the recorded conversations because some segments of the recordings contain
indiscernible words.
-8-
In this case, we need not resolve the dispute as to why the term “crack” was
placed in quotation marks in the affidavit. We agree with the district court that, even
absent the challenged references to “crack” and a “drug transaction” in the telephone
call descriptions, the affidavit is sufficient to establish probable cause. “[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.” United States v. Rodriguez, 711 F.3d 928, 936 (8th Cir. 2013)
(quoting United States v. Solomon, 432 F.3d 824, 827 (8th Cir. 2005)). Where
probable cause depends upon information supplied by an informant, “[t]he core
question . . . is whether the information is reliable.” 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. “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.
Here, according to the affidavit, two cooperating sources identified Keys as
supplying crack cocaine to them on multiple occasions. The first source identified
Keys by both name and photograph, the second source identified him by photograph,
and both sources identified the neighborhood where the crack cocaine transactions
occurred. Although neither source had a prior history of providing information to law
enforcement, the receipt of consistent information from two separate sources is a form
of corroboration. See, e.g., United States v. Jackson, 898 F.2d 79, 81 (8th Cir. 1990)
(holding that two anonymous “tips were mutually corroborative”). Moreover,
detectives independently verified that a blue Pontiac Firebird was parked in the
driveway and that Keys resided at 2701 North Early, as detailed by one of the
sources. “[I]t is well established that even the corroboration of minor, innocent
details can suffice to establish probable cause.” Rodriguez, 711 F.3d at 936 (quoting
Solomon, 432 F.3d at 828). Even after the references to “crack” and a “drug
-9-
transaction” are excised from the affidavit’s description of the recorded telephone
calls, it would be more than reasonable to conclude that the “shit” discussed as the
object of a new transaction in those calls was crack cocaine. Thus, given “the totality
of the circumstances, there [was] a fair probability that contraband or evidence of a
crime [would] be found” at 2701 North Early. Id. (quoting Solomon, 432 F.3d at
827).
Because Keys cannot “show that the alleged false statement . . . was necessary
to the finding of probable cause,” Gabrio, 295 F.3d at 883, the district court did not
abuse its discretion in denying the request for a Franks hearing and denying the
motion to suppress.
B. Sufficiency of the Evidence
In reviewing the denial of a Rule 29 motion for judgment of acquittal, “[w]e
review the sufficiency of the evidence de novo, viewing evidence in the light most
favorable to the government, resolving conflicts in the government’s favor, and
accepting all reasonable inferences that support the verdict.” United States v. May,
476 F.3d 638, 640-41 (8th Cir. 2007) (quoting United States v. Washington, 318 F.3d
845, 852 (8th Cir. 2003)). “We may reverse only if no reasonable jury could have
found the defendant guilty beyond a reasonable doubt.” Id. at 641 (quoting
Washington, 318 F.3d at 852). The elements of a conspiracy to distribute a controlled
substance under 21 U.S.C. § 846 are “(1) that there was a conspiracy, i.e., an
agreement to distribute the drugs; (2) that the defendant knew of the conspiracy; and
(3) that the defendant intentionally joined the conspiracy.” United States v. Jiminez,
487 F.3d 1140, 1146 (8th Cir. 2007) (quoting United States v. Espino, 317 F.3d 788,
792 (8th Cir. 2003)).
Keys first contends that, because the evidence of his involvement is limited to
his actions in Kansas City, Kansas, there is no evidence that he knowingly
-10-
participated in a conspiracy to distribute crack cocaine in Nebraska, as alleged in the
indictment. This argument is not well taken, as the indictment refers to a conspiracy
“in the District of Nebraska and elsewhere” (emphasis added). Moreover, even if the
indictment referred solely to Nebraska, where the investigation into the conspiracy
began, Keys cites no authority for the proposition that every location in which the
conspiracy operates must be listed in the indictment. Cf. United States v. Huggans,
650 F.3d 1210, 1218 (8th Cir. 2011), cert. denied, 132 S. Ct. 1583 (2012) (“The
indictment in this case limited the time frame of the alleged drug conspiracy . . . and
specified that the drug involved was cocaine. . . . ‘[I]n view of these limitations we
cannot say that [the defendant] could have failed to realize exactly what conduct the
trial concerned.’” (quoting United States v. Peterson, 867 F.2d 1110, 1114 (8th Cir.
1989), overruled on other grounds by United States v. Richardson, 439 F.3d 421 (8th
Cir. 2006))). To the extent that Keys was attempting to challenge venue through this
argument, we note that he failed to object to venue in the district court, and in any
event there is no question that Kilcoin and Mitchell acted in furtherance of the
conspiracy in Nebraska. See United States v. Romero, 150 F.3d 821, 824 (8th Cir.
1998) (“[A]lthough separate proof of an overt act is not a necessary element of a drug
conspiracy under 21 U.S.C. § 846, venue is proper in a conspiracy case in any
jurisdiction in which an overt act in furtherance of the conspiracy was committed by
any of the conspirators.” (citations and internal quotation marks omitted)). As a
result, the Government needed to prove only that an agreement to distribute crack
cocaine existed and that Keys knew of the agreement and knowingly participated in
it, see Jiminez, 487 F.3d at 1146, regardless of where Keys’s own actions occurred.
Keys next argues that the evidence was insufficient to establish these elements
because Kilcoin, Mitchell, and other witnesses who hoped to benefit from
cooperating with the Government had an incentive to testify falsely against him.
Keys emphasizes that Kilcoin’s testimony in particular was uncorroborated because
the search of Keys’s residence uncovered only crack cocaine residue, rather than the
distribution-sized quantities described by Kilcoin. Nevertheless, “in reviewing a
-11-
defendant’s challenge to the sufficiency of the evidence, ‘[w]itness testimony . . .
does not need to be corroborated.’” United States v. Perez, 663 F.3d 387, 391 (8th
Cir. 2011) (alteration in original) (quoting United States v. Jefferson, 652 F.3d 927,
930 (8th Cir. 2011)). Assuming, as we must, that the jury found credible the witness
testimony that was favorable to the verdict, that testimony was more than sufficient
to establish the elements of the offense, “[a]nd a jury’s credibility determinations are
virtually unreviewable on appeal.” Id. (quoting Jefferson, 652 F.3d at 930).
As a result, we affirm the denial of Keys’s Rule 29 motion for judgment of
acquittal.
C. Brady Claim
Keys argues that the introduction of testimony by Evans, Schaaf, and Mitchell
that was not prefigured in pretrial interviews or reports constitutes a Brady violation.3
“Under Brady, the government must disclose any evidence both ‘favorable to an
accused’ and ‘material either to guilt or to punishment.’” United States v. Whitehill,
532 F.3d 746, 753 (8th Cir. 2008) (quoting Brady v. Maryland, 373 U.S. 83, 87
(1963)). “The disclosure obligation encompasses both substantive exculpatory
evidence and evidence that might be valuable in impeaching government witnesses.”
United States v. Livingstone, 576 F.3d 881, 884 (8th Cir. 2009). Such evidence “is
3
Keys objected to the admission of the challenged testimony, but the objections
appeared to be based primarily, if not solely, on Jencks Act grounds. See United
States v. Douglas, 964 F.2d 738, 741 (8th Cir.1992) (“The Jencks Act requires that
the prosecutor disclose any statement of a witness in the possession of the United
States which relates to the subject testified to by the witness on direct examination.”).
On appeal, Keys does not argue that the Jencks Act applies. Although Keys did not
separately move for a new trial on Brady grounds, the Government does not argue
that a Brady claim based on these objections was forfeited. Therefore, as suggested
by the Government, we address the Brady claim as if the objection had been
preserved.
-12-
material ‘if there is a reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been different.’” Whitehill, 532
F.3d at 753 (quoting Kyles v. Whitley, 514 U.S. 419, 433-34 (1995)).
Here, Keys contends that certain trial testimony by each of Evans, Schaaf, and
Mitchell revealed inconsistencies with their respective pretrial reports and interviews.
The Government counters that Keys cannot show that earlier disclosure of the
substance of the “new” testimony would have altered the result of the proceeding.
We agree with the Government.
First, the substance of the challenged testimony is inculpatory, rather than
exculpatory: Evans testified that she bought crack cocaine from Keys, Schaaf
testified that she saw a set of scales on Keys’s counter, and Mitchell testified that he
saw other individuals buying crack cocaine from Keys. Second, to the extent Keys
argues that the “new” evidence might have been valuable for impeachment purposes,
Keys in fact did impeach each of the three witnesses extensively with respect to
inconsistencies between their testimony and their previous interviews with
investigators and the prosecution. Given that Keys had the opportunity to use the
substance of each witness’s “new” testimony to impeach the witnesses, we cannot
hold that a Brady violation occurred in this case. See United States v. Almendares,
397 F.3d 653, 664 (8th Cir. 2005) (“Under the rule in our circuit Brady does not
require pretrial disclosure, and due process is satisfied if the information is furnished
before it is too late for the defendant to use it at trial.”). Even if we were to construe
the “new” testimony as indicative of the withholding of Brady materials, Keys “fails
to show that the result of the trial would have been different if he had known
beforehand what the witnesses were going to say at trial, because the record reveals
that he did in fact effectively cross-examine the co-conspirators about inconsistencies
-13-
between what they had said [prior to trial] and what they testified to.” Livingstone,
576 F.3d at 884.
Accordingly, we reject Keys’s Brady claim.
III. Conclusion
For the foregoing reasons, we affirm the district court’s denial of Keys’s
motion to suppress and request for a Franks hearing, denial of his motion for
judgment of acquittal, and denial of his attempt to exclude certain testimony.
_____________________________
-14-