United States v. Adrian Dunn , 723 F.3d 919 ( 2013 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 11-3255
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Adrian L. Dunn
lllllllllllllllllllll Defendant - Appellant
___________________________
No. 11-3256
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Danny R. Moore
lllllllllllllllllllll Defendant - Appellant
___________________________
No. 11-3257
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Cheo D. Miles
lllllllllllllllllllll Defendant - Appellant
___________________________
No. 11-3258
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Vincent E. Charles
lllllllllllllllllllll Defendant - Appellant
___________________________
No. 11-3318
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Dennis L. Westbrook
lllllllllllllllllllll Defendant - Appellant
____________
-2-
Appeals from United States District Court
for the Western District of Missouri - Kansas City
____________
Submitted: February 12, 2013
Filed: July 22, 2013
____________
Before RILEY, Chief Judge, LOKEN and SHEPHERD, Circuit Judges.
____________
LOKEN, Circuit Judge.
After a five-day trial, a jury convicted Adrian Dunn, Cheo Miles, Dennis
Westbrook, Danny Moore, and Vincent Charles of conspiring to distribute five
kilograms or more of cocaine and convicted Dunn, Westbrook, and Moore of using
a communication facility to facilitate cocaine distribution. See 21 U.S.C.
§§ 841(a)(1), (b)(1)(A), 843(b) and (d), and 846. The district court1 sentenced Dunn
to 262 months in prison, Miles and Westbrook to 240 months, Moore to 175 months,
and Charles to 151 months. In these consolidated appeals, they raise many challenges
to their convictions and sentences. We will first address two issues raised by more
than one appellant and then take up additional issues raised by each. We affirm the
convictions and sentences.
I. Sufficiency of the Evidence
Dunn, Moore, and Charles argue the evidence was insufficient to support their
cocaine conspiracy convictions. To convict a defendant of conspiracy to distribute
cocaine, the government must prove the defendant knew of and intentionally joined
1
The Honorable Nanette Laughrey, United States District Judge for the Western
District of Missouri.
-3-
a conspiracy (agreement) to distribute cocaine. United States v. Huggans, 650 F.3d
1210, 1222 (8th Cir. 2011), cert. denied, 132 S. Ct. 1583 (2012). We review the
sufficiency of the evidence de novo, viewing evidence in the light most favorable to
the jury’s verdict, resolving conflicts in the government’s favor, and accepting all
reasonable inferences that support the verdict. United States v. Miller, 698 F.3d 699,
702 (8th Cir. 2012), cert. denied, 133 S. Ct. 1296 (2013).
At trial, the government presented testimony by numerous law enforcement
agents and then by its primary witness, conspiracy leader Alejandro Corredor,
pursuant to his plea agreement. Corredor testified that, from the summer of 2007
until his arrest in June 2009, he received forty to fifty kilograms of cocaine each
month from his contacts in Mexico, which he then supplied on consignment to
distributors in the Kansas City area, usually in kilogram quantities. Beginning in
2007, Dunn sold about eight kilograms of cocaine per month for Corredor, Westbrook
about four kilograms of cocaine per month, and Charles about one kilogram per
month. Beginning in the summer of 2008, Corredor stored twenty to forty kilograms
of cocaine per month at the house of his good friend Moore. Corredor knew Miles
because he was “always with [Dunn].” Corredor usually met Dunn at a house in
Kansas City near 87th and Kentucky to drop off cocaine or pick up money. On four
or five occasions, Miles was the one “receiving the drugs or giving me the money.”
As part of its investigation, the government placed a wiretap on Corredor’s
phone; it introduced at trial dozens of recorded calls between Corredor and the
defendants. Corredor identified each defendant as the speaker on certain calls and
testified the calls pertained to cocaine transactions, explaining the use of code words
that referred to drugs and nicknames or aliases that referred to defendants. The
government also presented testimony by other conspirators. Appellants’ challenge
to the admission of this testimony is discussed in Part II, infra. We need not describe
the testimony in this Part because we conclude that Corredor’s testimony combined
-4-
with the recorded calls and extensive testimony by the investigating agents were
sufficient to support the conspiracy convictions of Dunn, Moore, and Charles.
On appeal, Dunn, Moore, and Charles argue that only Corredor’s testimony
supports their convictions because the government presented no evidence that law
enforcement agents directly observed their involvement in drug-related activity.
Appellants urge us to consider Corredor’s testimony unreliable due to inconsistencies
with his pre-trial proffers, contradictions with testimony by other witnesses,
Corredor’s admission that he had lied to law enforcement in the past, and his
incentive to lie created by his hope of a lesser sentence and the government’s promise
not to seek the death penalty for his involvement in arranging a homicide and an
attempted homicide on behalf of his Mexican drug suppliers.
“We have repeatedly upheld jury verdicts based solely on the testimony of co-
conspirators and cooperating witnesses, noting that it is within the province of the
jury to make credibility assessments and resolve conflicting testimony.” United
States v. Coleman, 525 F.3d 665, 666 (8th Cir.), cert. denied, 555 U.S. 958 (2008).
Corredor’s testimony supported the jury’s findings that Dunn, Moore, and Charles
knew of and intentionally joined a conspiracy to distribute cocaine. Inconsistencies
and motivations for bias were thoroughly developed on cross-examination and were
rejected by the jury. We reject Dunn’s contention there was insufficient evidence for
the jury to find him responsible for at least 5 kilograms of cocaine and for the district
court at sentencing to find him responsible for at least 15 kilograms of cocaine.
Dunn and Moore also challenge the sufficiency of the evidence to convict them
of using a communication facility to facilitate cocaine distribution because the only
evidence implicating them in drug-related phone calls was Corredor’s unreliable
testimony. As Corredor’s credibility was an issue for the jury, the evidence was also
plainly sufficient to support these convictions.
-5-
II. Late Disclosure of Government Witnesses and Proffer
A. At a pretrial conference, the court directed that witness lists be submitted
by late January 2011. After this deadline, the government disclosed, one week prior
to the February trial, six trial witnesses not on its witness list. Defendants filed
motions in limine to exclude these newly disclosed witnesses. The district court
excluded two witnesses and then heard argument on the others prior to the start of
trial, focusing on witnesses Terrance Harris and Joel Guevara. The government
explained that Harris would testify to acquiring cocaine from defendants Dunn and
Charles, and Guevara would testify he saw Westbrook bring cash to Charles’s house.
The court expressed disappointment with the government’s unexcused late
disclosures but noted defense counsel were provided proffer statements “a week ago”
and asked how the defense would be prejudiced. Counsel complained that they had
prepared to defend only against Corredor, “who is not the most credible witness.”
Defendants declined the court’s offer of a continuance to prepare for these newly
disclosed witnesses. The court then denied the motion to exclude those witnesses
because “in fact, you had enough time.”
On appeal, Dunn, Westbrook, and Charles argue the district court erred in
denying their motions in limine to exclude late-disclosed witnesses Harris, Guevara,
and Keith Rayford. We review the district court’s ruling for abuse of discretion,
considering “(1) whether the Government acted in bad faith and the reason(s) for
delay . . . ; (2) whether there is any prejudice to the defendant; and (3) whether any
lesser sanction is appropriate to secure future Government compliance.” United
States v. Sandoval-Rodriguez, 452 F.3d 984, 989 (8th Cir.) (quotation omitted), cert.
denied, 549 U.S. 1040 (2006). “Even if the government failed to disclose a witness
in violation of a discovery order, the defendant still has to show prejudice to his
substantial rights.” United States v. Washington, 318 F.3d 845, 857 (8th Cir.), cert.
denied, 540 U.S. 884, 899 (2003). Defendants were provided proffer statements a
-6-
week before trial and declined the court’s offer of a continuance. As in Sandoval-
Rodriguez, we conclude the court did not abuse its discretion because defendants
made no showing of prejudice “other than the lateness of the disclosure itself.” 452
F.3d at 990.
B. During Guevara’s direct examination at trial, Dunn objected when Guevara
testified to facts incriminating Dunn that were not disclosed in the proffer statement
produced to defense counsel. The ensuing colloquy revealed that the government had
inadvertently produced only one of Guevara’s two proffer statements. Although
neither proffer implicated Dunn as Guevara did at trial (government counsel
expressed surprise at that testimony), defendants renewed their objections to
Guevara’s testimony and moved for a mistrial based on the government’s mistake.
After lengthy argument, the district court denied these motions, instead giving
defense counsel a half-hour recess to confer with their clients and prepare for
Guevara’s cross-examination.
On appeal, Dunn, Westbrook, and Moore argue the district court erred in
denying a mistrial, an issue we review for abuse of discretion. See United States v.
Benson, 686 F.3d 498, 504 (8th Cir. 2012), cert. denied, 133 S. Ct. 877 (2013). In
denying a mistrial, the district court explained that defendants were now provided
Guevara’s second proffer statement. “You’ve identified [what] you want to talk
about, and you’re free to go ahead and talk about it.” Their objection that the proffer
would have been useful in cross examining Corredor did not warrant a mistrial, the
court explained, because Corredor “was impeached in so many different ways that it’s
trivial to think that this one additional piece of information was somehow the
linchpin.” Thus, the court concluded, any prejudice to defendants or benefit to the
government “is so small, I’m not going to grant a mistrial.”
-7-
We conclude that defendants fall far short of showing a prejudicial abuse of
discretion. “The decision of whether or not to grant a mistrial is made by the district
court, which is in far better position to measure the effect” of, and to cure, a mistake
such as untimely disclosure of a witness’s proffer statement. Washington, 318 F.3d
at 859. Though the late-disclosed proffer included new information, the district court
gave defense counsel time to review the proffer with their clients, and defendants
cross-examined Guevara extensively concerning the newly disclosed information.
Contrary to Moore’s pro se supplemental brief, late disclosure of Guevara’s second
proffer did not violate the government’s duty to disclose exculpatory material, see
Brady v. Maryland, 373 U.S. 83, 87 (1963), because the information was disclosed
before the end of trial. See Sandoval-Rodriguez, 452 F.3d at 990.2
III. Additional Issues
A. Adrian Dunn. The government received court authorization to wiretap
Corredor’s telephone on March 3, 2009. On May 9, the government applied to extend
the authorization, listing Dunn as a “target subject.” The government terminated the
wiretap on June 12, 2009. The district court denied Dunn’s pretrial motion to
suppress all wiretap conversations that allegedly involved Dunn.
1. Dunn argues the district court committed plain error when it authorized the
extension of the wiretap because the government lacked probable cause to add
Dunn’s name to the application and failed to show that other investigative procedures
were tried and failed with regard to Dunn. Dunn did not raise this issue in his pretrial
motion to suppress. Therefore, the issue was waived, absent a showing of good cause
Dunn has not made. See United States v. Green, 691 F.3d 960, 965 (8th Cir. 2012);
2
Moore’s argument that information he discovered after trial could be used to
impeach Corredor’s trial testimony is not properly before us on direct appeal.
-8-
Fed. R. Crim. P. 12(e). In any event, there was no plain error. The statute, 18 U.S.C.
§ 2518(1)(b)(iv), does not prohibit the government from listing someone as a target
subject even if probable cause is lacking as to that person. See United States v.
Martin, 599 F.2d 880, 884-85 (9th Cir.) (applying United States v. Donovan, 429 U.S.
413, 423-28 (1977)), cert. denied, 441 U.S. 962 (1979). Naming Dunn in the
application to extend in no way detracted from the sufficiency of the showing that
authorized the initial wiretap, which Dunn does not challenge.
2. Dunn argues the district court erred in denying his motion to suppress
because the government failed to provide notice of the recorded calls within 90 days
of the wiretap’s termination, as required by 18 U.S.C. § 2518(8)(d). We disagree.
“Failure to meet the notice requirement of section 2518(8)(d) does not render
‘unlawful an intercept order that in all other respects satisfies the statutory
requirements.’” United States v. Davis, 882 F.2d 1334, 1344 (8th Cir. 1989) (quoting
Donovan, 429 U.S. at 434), cert denied, 494 U.S. 1027 (1990). Moreover, Dunn’s
counsel admitted receiving transcripts of the intercepted calls less than 90 days after
the wiretap terminated. Thus, Dunn had actual notice within 90 days and failed to
show prejudice. Davis, 882 F.2d at 1344.
3. Dunn argues the district court erred in denying his pretrial motion in limine
because Special Agent Mark King did not properly identify Dunn as the speaker on
any recorded calls at a December 2010 suppression hearing. This was not grounds
for suppression or exclusion; identification was an issue for the jury at trial. Corredor
testified he recognized Dunn’s voice on the calls in question; the credibility of that
testimony was for the jury. We fail to see how Agent King’s testimony at a
suppression hearing, even if mistaken, undercut admission of the intercepted calls at
trial based on Corredor’s testimony that Dunn was the speaker. Thus, the district
court did not err in denying Dunn’s motion to suppress or his motion in limine.
-9-
4. Dunn argues the district court committed plain error in “allowing” Special
Agent Scott Francis to testify at the grand jury proceedings and Agent King to testify
at Dunn’s detention hearing that Dunn was involved in drug-related telephone calls
because neither had personal knowledge or other evidence that Dunn’s voice was on
the calls. We agree with the government that these contentions are without merit
because the petit jury’s subsequent guilty verdict rendered any errors either harmless
or moot. See United States v. Wilson, 565 F.3d 1059, 1070 (8th Cir. 2009), cert.
denied, 558 U.S. 1117 (2010); United States v. Gill, 104 Fed. App’x 596, 597 (8th
Cir. 2004). The government’s failure to call grand jury witness Francis at the
subsequent criminal proceedings did not violate Dunn’s Confrontation Clause rights.3
5. Trial was scheduled to begin July 20, 2009. A June 26 discovery order
required the government to disclose discovery to Dunn by July 6. At a July 1
scheduling conference, the government stated it would ask for a trial continuance and
an extension of the discovery order; defendants said they wanted to keep the July 20
trial date. The magistrate judge instructed the government to file a motion for a
continuance in writing and scheduled a July 6 pretrial conference. That pretrial
conference did not take place. On July 16, Dunn’s former counsel moved for a
continuance, without Dunn’s consent. The court granted a continuance on July 22.
Dunn received the government’s discovery in August 2009. In October 2010, he
moved to suppress all evidence not disclosed before July 6, 2009. On appeal, he
argues the district court (i) denied a speedy trial by failing to hold the July 6 pretrial
conference, and (ii) erred by denying his motion to suppress. We review these issues
for plain error.
3
In his pro se brief, Dunn also argues his Confrontation Clause rights were
violated when Agent King testified at the suppression hearing, rather than Agent
Francis, who drafted the wiretap extension application. This contention is without
merit. King’s testimony did not address wiretap suppression issues.
-10-
(i) The Speedy Trial Act requires that trial begin within 70 days after a
defendant is charged or first appears, but any delay resulting from a continuance
granted at the request of the defendant or his counsel is excluded if the judge finds
that the ends of justice served by the continuance outweigh the interests in a speedy
trial. 18 U.S.C. § 3161(h)(8)(A). Here, Dunn’s counsel moved for a continuance; the
court granted a continuance, making the required finding. Dunn’s personal consent
was not needed. See United States v. Herbst, 666 F.3d 504, 510 (8th Cir. 2012).
(ii) In denying Dunn’s motion to suppress evidence not produced before July
6, 2009, the district court found that the government made discovery available on July
1 when it informed defendants after the scheduling conference that they could access
the files at the U.S. Attorney’s office. This fact finding was not clearly erroneous.
See United States v. Arrocha, 713 F.3d 1159, 1160 (8th Cir. 2013) (standard of
review). Moreover, if Dunn did not receive discovery until August 2009, he was not
prejudiced by the delay because trial did not take place until February 2011.
6. Dunn next argues the district court erred in denying his pretrial motion to
suppress evidence found during a warrant search at the 8717 Kentucky Avenue
residence. Following an evidentiary hearing, the district court found that Kansas City
police officers and federal agents arrived at 8717 Kentucky Avenue at 2:00 a.m. on
June 12, 2009, to execute arrest warrants for Dunn and Miles. Miles responded to
their knock, refused to unlock the door, took evasive and threatening actions, and was
arrested. The officers performed a protective sweep of the house and then maintained
a protective presence while applying for a federal search warrant. The warrant issued
at 12:30 p.m. that day. During the warrant search, a drug dog alerted to the trunk of
a vehicle found in the attached garage. A locksmith opened the trunk, where the
officers recovered $41,000 cash, the subject of Dunn’s pretrial motion to suppress.
-11-
On appeal, Dunn argues that the warrant did not authorize search of the garage
or the car, only the residence.4 He asserts (with little evidentiary support) that he did
not reside at 8717 Kentucky Avenue but merely owned the property and stored a
locked vehicle in its garage. The district court concluded that the warrant to search
the residence allowed the officers to search the attached garage and the vehicle found
in the garage. We agree. “When a warrant specifically mentions certain structures,
it authorizes a search of these structures and, by implication, any other vehicles,
structures, or property not noticeably separate from them.” United States v.
Pennington, 287 F.3d 739, 744-45 (8th Cir.) (quotation omitted), cert. denied, 537
U.S. 1022 (2002). This includes a vehicle found on the premises, except for the
vehicle of a guest. Id.; see United States v. Bulgatz, 693 F.2d 728, 730 n.3 (8th Cir.
1982), cert. denied, 459 U.S. 1210 (1983). Here, the attached garage and the vehicle
within it were not noticeably separate from the rest of the house and were therefore
included in the warrant’s scope. United States v. Swift, 720 F. Supp. 2d 1048 (E.D.
Ark. 2010), on which Dunn relies, is distinguishable because it involved probable
cause to search a guest’s vehicle parked in a driveway.
7. Dunn argues the district court erred in imposing a two-level enhancement
for possessing “a dangerous weapon (including a firearm).” U.S.S.G. § 2D1.1(b)(1).
To establish either actual or constructive possession, the government must show that
Dunn “exercised ownership, dominion, or control either over the firearm or the
premises on which it is found.” United States v. Payne, 81 F.3d 759, 762 (8th Cir.
1996) (quotation omitted). If possession is established, the enhancement applies “if
the weapon was present, unless it is clearly improbable that the weapon was
4
Dunn argues in a footnote that the arrest warrant did not authorize execution
at night. We do not consider this argument because he provided neither the arrest
warrant nor supporting case law. See United States v. Acosta, 619 F.3d 956, 962 (8th
Cir. 2010), cert. denied, 131 S. Ct. 1618 (2011).
-12-
connected with the offense.” U.S.S.G. § 2D1.1(b)(1), comment. (n.3(A)). We review
the district court’s finding that the enhancement applies for clear error. See United
States v. Moore, 212 F.3d 441, 447 (8th Cir. 2000).
Police recovered three weapons during the warrant search at 8717 Kentucky
Avenue, one in the living room couch, one on a bed in one bedroom, and one in the
closet of another bedroom. Dunn admitted he had a lease-to-own interest in the
residence. His vehicle was found in the attached garage, a security services bill in his
name was found in the house, and one firearm was found in a bedroom closet where
miscellaneous papers relating to Dunn were found. Corredor testified he met Dunn
there to exchange drugs or money, and the government introduced recorded calls
reflecting that drugs were delivered and money picked up at that address. On this
record, the district court did not clearly err in finding that Dunn exercised ownership,
dominion, or control over the premises where the guns were found, and that “the
weapon was found in the same location where drugs or drug paraphernalia were
stored, or where part of the conspiracy took place.” Payne, 81 F.3d at 763.
8. Dunn argues the district court erred in imposing a statutory minimum
sentence for a “prior conviction for a felony drug offense,” see 21 U.S.C. §§ 841 and
851, based on his 2001 Missouri conviction for possession of a controlled substance.
Reviewing this issue de novo, we conclude the enhancement was properly applied.
See United States v. Davis, 417 F.3d 909, 913 (8th Cir. 2005) (standard of review),
cert. denied, 546 U.S. 1144 (2006). A “felony drug offense” is “an offense that is
punishable by imprisonment for more than one year under any law of the United
States or of a State or foreign country that prohibits or restricts conduct relating to
narcotic drugs . . . .” 21 U.S.C. § 802(44). The Missouri court imposed a three-year
prison sentence, with execution suspended. The enhancement applies even though
the conviction was for simple possession and Dunn received a suspended sentence,
as long as it was a felony. See United States v. Jones, 559 F.3d 831, 837 (8th Cir.
-13-
2009); Davis, 417 F.3d at 912-13. Dunn’s additional unsupported arguments on this
issue are without merit.
9. The August 20, 2009, superceding indictment sought criminal forfeiture of
extensive property alleged to be used in, or the proceeds of, various defendants’
extensive drug trafficking, including Dunn’s interests in two described vehicles and
$41,000 cash. No preliminary or final forfeiture orders were ever entered in the
criminal case. See Fed. R. Crim. P. 32.2(b). In his pro se brief, Dunn argues the
district court denied him due process and violated Rule 32.2(b)(5)(A) when it failed
to determine prior to trial whether any party requested a jury determination as to the
forfeitability of his property. See United States v. Gregoire, 638 F.3d 962, 971-72
(8th Cir. 2011). He concedes we review this issue for plain error.
The district court’s docket sheets reflect that, five days after filing his pro se
appeal brief, Dunn filed a pro se motion in the closed criminal case alleging that the
property in question had been improperly administratively forfeited and asking the
district court to vacate the forfeiture orders. The government responded, admitting
the property was administratively forfeited by the Department of Homeland Security
in October 2009 and April 2011, and arguing that Dunn may set aside those forfeiture
orders only by a civil action under 18 U.S.C. § 983(e), not in the criminal case. In
April of this year, the district court agreed, denying Dunn’s motion without prejudice
and directing the Clerk of District Court to send Dunn appropriate forms for pursuing
his claims in a civil action.
The government’s brief to this court argues, without citation to relevant judicial
authority, that 18 U.S.C. § 983(e) is Dunn’s exclusive civil remedy in this situation.
The government does not disclose how Dunn was notified of the government’s intent
to seek civil forfeiture, other than by its superseding indictment in the criminal case
that gave at least implied notice the government would proceed under Rule 32.2.
-14-
That notice was seemingly reinforced in an undated letter from DHS telling Dunn it
could not respond to his petition for return of the property “until the AUSAs case
plays out.” Though § 983 is captioned, “General rules for civil forfeiture
proceedings,” it expressly provides that the government may proceed “as provided
in the applicable criminal forfeiture statute.” § 983(a)(1)(A)(iii)(II).
Compliance with the notice and other procedural requirements of these
complex statutes and rules is essential to preserving the basic fairness that due
process requires. Though § 983(e)(5) provides that its remedy is exclusive, it is by
no means clear that this judicial remedy could never be invoked to prevent
administrative intrusion on the court’s jurisdiction in a criminal case. Thus, had
Dunn raised this issue in a timely fashion in the criminal case, the district court may
well have had jurisdiction under § 983(e) and Rule 32.2 to vacate the administrative
forfeiture orders and direct the government to proceed in accordance with the
criminal forfeiture statute and rule it had invoked. We do not decide that question
because the issue was not timely raised. For that reason, the district court committed
no error, much less plain error, in concluding the criminal case without taking up this
issue sua sponte. In response to Dunn’s belated motion, the district court properly
invited him to raise his objections to the administrative forfeiture orders in a civil
action. If he does so in a timely manner, and if he can establish that the government
invoked its right to seek criminal forfeiture and then improperly proceeded to
administratively forfeit his personal interests in property named in the superseding
indictment, the court will need to decide whether he is entitled to § 983(e) relief.
B. Cheo Miles. Miles argues the district court committed plain error when it
failed to instruct the jury on the lesser included offense of conspiring to distribute less
than 5 kilograms of cocaine. See United States v. Meeks, 639 F.3d 522, 528 (8th
Cir.) (standard of review), cert. denied, 132 S. Ct. 350, 471 (2011). The jury found
-15-
Miles guilty of conspiring to distribute 5 kilograms or more. At sentencing, the
district court noted: “we’ve got rock solid evidence [of] at least four kilos [and] I
have no doubt that [Miles] was fully aware that there was substantially more than four
kilograms that was involved in this conspiracy.”5 Therefore, the court found “that the
jury’s verdict is well supported by the evidence, and so I will go with that.” Based
on this quantity finding and Miles’s prior conviction for a felony drug offense, the
court imposed the statutory minimum sentence of 20 years in prison. See 21 U.S.C.
§§ 841(b)(1)(A) and 851.
Prior to the Supreme Court’s recent decision in Alleyne v. United States, 133
S. Ct. 2151 (2013), Miles’s lesser-included-offense argument was “practically
irrelevant” because we construed prior Supreme Court decisions as permitting the
district court to impose any sentence within the statutory maximum based on the
court’s drug quantity finding made by a preponderance-of-the-evidence at sentencing.
See, e.g., United States v. Turner, 603 F.3d 468, 471 (8th Cir. 2010). Consistent with
those then-controlling decisions, at oral argument Miles’s counsel agreed this was in
essence a sentencing issue and argued the district court impermissibly considered
itself bound at sentencing by the jury’s quantity finding. We reject this contention.
In our view, the sentencing transcript demonstrates that the court understood its
sentencing authority and simply adopted the jury’s drug quantity finding, which was
well supported by the trial record.
The Supreme Court in Alleyne overruled its prior decisions on which we had
relied and held that any fact which imposes or increases an applicable mandatory
minimum sentence “is an element of a distinct and aggravated crime [and] must,
5
Corredor testified that Miles was always with Dunn, who sold an average of
eight kilograms of cocaine per month, and that Miles took the cocaine from and gave
money to Corredor four or five times.
-16-
therefore, be submitted to the jury and found beyond a reasonable doubt.” 133 S. Ct.
at 2163. In this case, the 5-kilogram quantity was submitted to and found by the jury,
so no violation of Alleyne occurred. However, because the jury’s drug quantity
finding is far more significant post-Alleyne, the question whether to submit to the
jury a lesser-included-quantity offense, if timely requested, may require a somewhat
different analysis post-Alleyne. We need not consider that question because no
request was timely made. We conclude the district court committed no plain error in
submitting to the jury only the drug quantity alleged in the indictment, in addressing
drug quantity in the manner prescribed by our controlling decisions at Miles’s
sentencing, and in imposing a sentence consistent with the jury’s quantity finding and
therefore with the Supreme Court’s decision in Alleyne.
C. Dennis Westbrook. Westbrook argues the district court erred in denying
his motion for a new trial because the prosecutor gave an improper and prejudicial
rebuttal closing argument. At trial, during Corredor’s testimony, the government
played five recorded phone calls, and Corredor testified that each was a conversation
with Westbrook about money Westbrook owed Corredor for cocaine. During closing
argument, Westbrook’s counsel argued:
Everybody has told you about code names and using code in
telephone calls. We heard telephone calls where . . . three dollars means
kilos, bring me a shoe, that’s a kilo. . . . Do you realize out of the
thousands of calls there’s not one from Dennis Westbrook, not one that
asks for a shoe, that asks for . . . three dollars? There’s not one coded
telephone call in the entire 7000 pages of the government’s case.
-17-
That argument prompted the following rebuttal argument from the government:
In this conspiracy from January of ‘07 to June of ‘09, the
government is on a wiretap for a small period of time. And we recorded
thousands of phone calls. And we only played some of them for you
here. We could have been here for weeks if we played every single
phone call. But we don’t need to play every single phone call because
we played phone calls that show you what was going on inside of this
conspiracy.
Now, we don’t have to give you evidence of every single day that these
guys . . .
[DEFENSE COUNSEL]: Objection, may we approach?
THE COURT: No, state your objection. Without it being a
speaking objection.
[DEFENSE COUNSEL]: Assuming facts not in evidence.
THE COURT: Overruled.
[THE PROSECUTOR]: Thank you, Your Honor. We have to
prove our case beyond a reasonable doubt, and that doesn’t mean that
we have to come in here and play every single . . . recording that we
have for you because . . . the evidence that you’ve heard from us so far
proves beyond a reasonable doubt that these five guys are involved with
Alejandro Corredor and his drug dealing business.
And then in concluding the prosecutor repeated:
Again, we played some of these phone calls to give you an idea what’s
going on. Could we have played a whole lot more? Yeah, we could.
We don’t want to be here for two or three weeks trying this case. . . .
-18-
Westbrook did not object to the last two above-quoted segments. After the jury’s
verdict, he moved for a new trial, arguing as he does on appeal that the rebuttal was
improper because it essentially asked the jury to believe that the government could
have presented a mountain of other incriminating evidence. The district court denied
the motion because -
it is clear that the Government was not attempting to bolster a weak case
with references to evidence not presented at trial. The Government had
already presented the testimony of Alejandro Corredor, which identified
Defendant Westbrook as the speaker in a number of recordings in which
he appeared to discuss the drug conspiracy.
We review the district court’s control over closing arguments and denial of a motion
for new trial for abuse of discretion. See United States v. Barrera, 628 F.3d 1004,
1007 (8th Cir. 2011).
Regarding the rebuttal closing argument, there plainly was no abuse of
discretion because the only ruling the court was called upon to make was correct.
Both Corredor and Agent King had testified that the government recorded hundreds
or thousands of calls during the wiretap of Corredor’s phone. Thus, Westbrook’s
objection that the prosecutor was assuming facts not in evidence was properly
overruled. No other contemporaneous objection was made.
Regarding denial of a new trial, we agree with the district court’s reasoning.
In response to Westbrook’s “no coded calls” argument, the government properly
responded that it had introduced calls establishing defendants’ guilt. The government
made no reference to additional incriminating evidence. It simply stated the obvious
fact that the trial would have been greatly extended had all the recorded calls been
played. Given the prosecutor’s emphasis on incriminating calls that were in evidence,
-19-
the district court did not abuse its discretion by inferring the government “was not
attempting to bolster a weak case” with improper references to evidence that was not
presented or facts that were not in evidence. When considering a new trial motion
based on an ambiguous remark in closing argument, “a court should not lightly infer
that a prosecutor intends an ambiguous remark to have its most damaging meaning
or that a jury, sitting through lengthy exhortation, will draw that meaning from the
plethora of less damaging interpretations.” United States v. Gardner, 396 F.3d 987,
992 (8th Cir.) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 647 (1974)), cert.
denied, 546 U.S. 866 (2005).
D. Danny Moore. Moore argues his Sixth Amendment right of confrontation
was violated when the district court limited his cross-examination of Agent King at
trial. On cross examination, Agent King confirmed that Corredor was arrested by a
Kansas sheriff with 85 pounds of cocaine in January 2005 and the U.S. Attorney’s
Office in the District of Kansas elected not to prosecute. Defense counsel then asked:
Q: So federal authorities knew that Alejandro Corredor was in this
country illegally distributing significant amounts of cocaine as early as
January of 2005; is that true?
The government objected. The district court asked how it was relevant to defendants’
guilt that the government “didn’t arrest Mr. Corredor.” Defense counsel responded,
“I think it’s simply part of the conspiracy. I think it’s relevant that the jury know all
of the facts and what the government did and didn’t do as part of this investigation.”
The district court ruled “that it’s not relevant whether or not they did or did not arrest
Alejandro Corredor at some earlier point.” When defense counsel replied, “arguably
this goes to the credibility of the investigation,” the court observed, “it’s the
credibility of the witnesses that we’re concerned about.”
-20-
The Sixth Amendment guarantees a defendant an opportunity for effective
cross-examination of witnesses, but courts retain wide latitude to impose reasonable
limits subject to our review for “a clear abuse of discretion and a showing of
prejudice.” United States v. Brown, 110 F.3d 605, 611 (8th Cir. 1997) (citation
omitted). “A limitation on cross-examination does not violate the Sixth Amendment
unless the defendant shows that a reasonable jury might have received a significantly
different impression of the witness’s credibility had defense counsel been permitted
to pursue his proposed line of cross-examination.” United States v. Walley, 567 F.3d
354, 358 (8th Cir. 2009) (quotation omitted). Here, we agree with the district court
that further questions regarding any decision by the U.S. Attorney’s office in another
district not to prosecute Corredor in 2005 or 2006 would not have given the jury a
“significantly different impression” of any witness’s credibility, including Corredor.
There was no abuse of discretion.
E. Vincent Charles. The issues raised on appeal by Mr. Charles have been
addressed in Parts I and II of this opinion.
For the foregoing reasons, the judgments of the district court are affirmed.
______________________________
-21-