United States v. Donald Turner, Jr. , 781 F.3d 374 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 13-2566
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Donald R. Turner, Jr.
lllllllllllllllllllll Defendant - Appellant
___________________________
No. 13-2572
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Antonio Turner
lllllllllllllllllllll Defendant - Appellant
___________________________
No. 13-2574
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Corey E. Turner, Sr.
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Eastern District of Missouri - Cape Girardeau
____________
Submitted: September 11, 2014
Filed: March 18, 2015
____________
Before RILEY, Chief Judge, SMITH and KELLY, Circuit Judges.
____________
KELLY, Circuit Judge.
Corey E. Turner, Sr., Donald R. Turner, Jr., and Antonio Turner appeal their
convictions and sentences on drug-related charges. After reviewing all issues raised
on appeal, we affirm.1
I. Background
In the spring of 2010, the Drug Enforcement Administration and the police
department in Sikeston, Missouri, began an investigation into a local
drug-distribution conspiracy. During the course of the investigation, law enforcement
came to believe that Joe Lenzie Turner, along with several of his friends and family
1
We have jurisdiction pursuant to 28 U.S.C. § 1291.
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members, were involved in a conspiracy to distribute both powder and crack cocaine
in and around the Sikeston area. Some of the other individuals allegedly involved in
the conspiracy included Corey Turner, Sr.,2 Donald Turner, Jr., Antonio Turner,
Dwayne Woods, and Jerriereneika Dorsey. On August 18, 2011, the above-listed
individuals and eleven others were charged in a 21-count indictment in the Eastern
District of Missouri. All seventeen were charged with conspiracy to distribute
cocaine; the remaining charges were substantive drug charges against some of the
defendants. Most of the defendants pleaded guilty, with some entering into
cooperation agreements with the government. Corey Turner, Donald Turner, and
Antonio Turner went to trial on a seven-count superseding indictment. During trial,
Joe Lenzie Turner and Jerriereneika Dorsey both testified as cooperating witnesses
for the government. The jury found all three defendants guilty of conspiracy to
possess with intent to distribute five kilograms or more of cocaine and additionally
found them guilty on all substantive drug charges. On appeal, the defendants contest
the denial of their motions to suppress, several evidentiary rulings at trial, the
sufficiency of the evidence, and their sentences.
II. Discussion
A. Motions to Suppress
During the investigation of the conspiracy, the government obtained multiple
Title III wiretap orders3 for some defendants’ phones, as well as separate warrants for
2
Corey Turner, Jr., was also indicted in this case, though he is not involved in
the present appeal. We will refer to Corey Turner, Sr., as Corey Turner, and Donald
Turner, Jr., as Donald Turner.
3
Title III wiretap orders are provided pursuant to 18 U.S.C. § 2518.
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Precise Location Information4 (PLI) for phones used by Joe Lenzie Turner and
Dwayne Woods. One of the wiretap orders purportedly authorized the seizure of PLI
from Corey Turner’s phone as well. Corey Turner and Donald Turner filed motions
to suppress the evidence obtained as a result of these orders and warrants. The
magistrate judge5 recommended denying all of the motions, and the district court6
adopted the recommendation after addressing the defendants’ objections.
“When reviewing a district court’s denial of a suppression motion, we review
the court’s factual findings for clear error and its legal conclusions de novo.” United
States v. Castellanos, 608 F.3d 1010, 1015 (8th Cir. 2010). A district court’s decision
denying a motion to suppress will be affirmed “unless it is unsupported by substantial
evidence on the record; reflects an erroneous view of applicable law; or after a
thorough review of the record, we have a definite and firm conviction that a mistake
has been made.” Id.
1. PLI Warrants
The first suppression issue on appeal involves the three warrants authorizing
the government to obtain prospective PLI from Joe Lenzie Turner’s and Dwayne
Woods’s phones. Corey Turner moved to suppress the evidence seized pursuant to
these warrants, and the district court denied the motion on the merits. Both in the
district court and on appeal, the government asserts there is no need to address the
4
“Precise Location Information” has not been defined by the parties, though it
is used in the court orders in this case to refer to the physical location of the phone
based on longitude and latitude or other similar points of reference.
5
The Honorable Lewis M. Blanton, United States Magistrate Judge for the
Eastern District of Missouri, now retired.
6
The Honorable John A. Ross, United States District Judge for the Eastern
District of Missouri.
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merits of Corey Turner’s motion because he lacks standing to challenge the seizure
of the evidence.7
“To contest the validity of a search, a person must have a reasonable
expectation of privacy in the place searched.” United States v. Randolph, 628 F.3d
1022, 1026 (8th Cir. 2011). “Fourth Amendment rights are personal and may not be
vicariously asserted.” Id. (quotation omitted). With regard to the content of cell
phones, “an accused must first establish that he personally has a legitimate
expectation of privacy in the object that was searched.” United States v. Stringer, 739
F.3d 391, 396 (8th Cir. 2014).
Corey Turner has failed to establish that he has standing to challenge the
issuance of the warrants for PLI for phones belonging to Joe Lenzie Turner and
Dwayne Woods. Corey Turner does not assert that he owned, possessed, or used
either of these cell phones; nor does he describe any other legitimate expectation of
privacy in these phones or in the PLI obtained from them.8 Without any argument to
7
Though the district court denied the motion on other grounds, the government
raised the issue of standing both before the district court and on appeal. The district
court declined to address Corey Turner’s standing to challenge the PLI warrants in
this case, but it is a “‘well-settled principle’ that a district court may be affirmed on
any ground supported by the record,” particularly where the issue has not been
waived by the parties. United States v. Lucas, 499 F.3d 769, 779 n.5 (8th Cir. 2007)
(quoting United States v. Pierson, 219 F.3d 803, 807 (8th Cir. 2000)). We therefore
address the issue of standing on appeal.
8
In Stringer, we found the defendant lacked standing to challenge a search of
a cell phone that was found in his car but belonged to another person. 739 F.3d at
396. The cell phone contained evidence that incriminated the defendant. Id. But,
similar to this case, the defendant in Stringer did not argue that he had a reasonable
expectation of privacy in the content of the third party’s cell phone, and thus, we
concluded, he lacked standing to challenge the search. Id. In this case, law
enforcement obtained PLI for Joe Lenzie Turner’s and Dwayne Woods’s phones, not
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support the conclusion that he had a legitimate expectation of privacy in these phones
or their location, Corey Turner has failed to meet his burden to establish standing to
challenge the seizure of this evidence. See Stringer, 739 F.3d at 396.
2. Wiretap Orders and Necessity
Donald Turner unsuccessfully moved to suppress all evidence seized as a result
of the Title III wiretap orders issued during the investigation. On appeal, he asserts
the district court erred in concluding the government had shown the requisite
necessity to justify the issuance of the orders.
The Wiretap Act requires that any application for a wiretap include “a full and
complete statement as to whether or not other investigative procedures have been
tried and failed or why they reasonably appear to be unlikely to succeed if tried or to
be too dangerous . . . .” 18 U.S.C. § 2518(1)(c). “If law enforcement officers are able
to establish that conventional investigatory techniques have not been successful in
exposing the full extent of the conspiracy and the identity of each coconspirator, the
necessity requirement is satisfied.” United States v. West, 589 F.3d 936, 939 (8th
Cir. 2009) (quotation omitted). When reviewing a lower court’s finding that the
necessity requirement has been satisfied to support authorization for a wiretap order,
this Court reviews for clear error. Id.In this case, the affidavits in support of the application for each Title III wiretap
order set forth the investigative techniques law enforcement had used, as of that point,
content contained in their phones, through the use of stand-alone PLI warrants.
Although PLI is different than recorded phone conversations or photographs stored
on a phone, the standing analysis in Stringer remains relevant; the defendant must
establish a reasonable expectation of privacy in the phone tracked with a PLI warrant,
just as he must establish a reasonable expectation of privacy in a phone searched for
other reasons.
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to gather evidence of the purported conspiracy: interviews with confidential sources,
use of confidential informants to conduct controlled buys of drugs from suspected
conspirators, monitored and/or recorded telephone calls initiated by cooperating
individuals, physical surveillance, limited use of pole cameras and GPS devices, pen
registers, trap and trace devices, and some collected financial information.
The affidavits also described techniques unlikely to be successful or too
dangerous to undertake under the circumstances. The affiant explained that the use
of undercover agents would not likely “further the objectives of the investigation”
and might place an undercover agent in danger, because those involved in the
conspiracy were either part of the Turner family or close friends, making it difficult
to infiltrate the organization. The affiant also discussed the fact that those involved
in the conspiracy were closely monitoring their surroundings and were possibly using
surveillance cameras of their own, so physical surveillance, trash searches, and the
use of additional pole cameras by law enforcement would not provide access to the
desired information. GPS devices had been used to track suspects’ cars, but some
suspects had taken to driving rental or borrowed vehicles to purchase drugs to avoid
being tracked. The affiant also explained that, while traditional investigative
techniques had uncovered a great deal of information about the criminal activities of
the targets, the familial nature of the enterprise and the counter-surveillance
techniques used by participants in the conspiracy prevented law enforcement from
determining who was supplying the drugs, where the drugs were being stored, or what
the full structure of the organization looked like.
Donald Turner counters that one of the confidential informants—CI #1—was
a member of the family. As a family member, Donald Turner argues, CI #1 was in
a position to obtain inside information to assist the police investigation, rendering a
wiretap or other electronic surveillance unnecessary. The government responds, and
the district court agreed, that although CI #1was able to learn some information about
the family drug business, he was unable to get information about the source of the
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drugs, where the leaders of the business hid drugs after transporting them from the
source, or how the distribution of drugs and assets was done by higher-level members
of the criminal enterprise. Additionally, CI #1 was set to return to custody, rendering
him unable to assist the government by conducting controlled buys or providing
inside information for much longer.
Wiretaps should not be “routinely employed as the initial step in an
investigation.” United States v. Macklin, 902 F.2d 1320, 1326 (8th Cir. 1990). But
§ 2518(1)(c) “does not require that law enforcement officers exhaust all possible
techniques before applying for a wiretap.” Id. Even if CI #1 could have provided
some additional useful information, that fact alone does not render the issuance of the
wiretap unlawful. As the magistrate judge found, “the efforts of the investigative
team in this case established what measures had been taken to attempt to fully
investigate the conspiracy and that those measures did not yield the full information
the investigative team sought and required to go forward with the prosecution of
those it found responsible.” The district court adopted these findings. We cannot say
the district court clearly erred in this determination. See West, 589 F.3d at 939(concluding the district court did not clearly err in finding the government proved
necessity by showing its attempts to investigate the suspects and that options aside
from a wiretap would be ineffective or dangerous if utilized); United States v. Shaw,
94 F.3d 438, 441–42 (8th Cir. 1996) (concluding the district court did not clearly err
in finding the government had utilized all ordinary measures likely to be successful
and had adequately set forth that other methods of investigation were likely to fail or
were too dangerous to attempt).
3. Combination Order
On April 4, 2011, the government applied for both a wiretap order and a PLI
warrant in a joint application. The district court issued an “Order Authorizing
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Interception of Wire Communications” (Combination Order).9 The Combination
Order permitted the interception of wire communications from Corey Turner’s cell
phone. See 18 U.S.C. § 2516. The wiretap portion of the Combination Order is not
at issue on appeal. Instead, Corey Turner challenges the portion of the Combination
Order that permitted the collection of PLI for his cell phone.
It is helpful to focus, first, on what Corey Turner does not assert. He does not
argue that a request for a wiretap order and a request for a traditional warrant cannot
9
The Combination Order also specified that
[P]ursuant to Rule 41(b) of the Federal Rules of Criminal Procedure,
. . . [the relevant] communication service providers, as defined in
Section 2510(15) of Title 18, United States Code, during the authorized
period of the interception . . . shall . . . provid[e] all information,
facilities and technical assistance needed to ascertain the physical
location of [Corey Turner’s cell phone], including but not limited to data
indicating the specific latitude and longitude of (or other precise
location information concerning) [Corey Turner’s cell phone], . . . for a
period of thirty (30) days.
The court further ordered the disclosure of the
Requested Location Information concerning [Corey Turner’s cell
phone], and initiat[ation of] a signal to determine the location of [Corey
Turner’s cell phone] on the service provider’s network or with such
other reference points as may be reasonably available and at such
intervals and times as directed by the law enforcement agent serving the
proposed order, and shall furnish the technical assistance necessary to
accomplish the acquisition unobtrusively and with a minimum of
interference with such services as that provider accords the user(s) of
[Corey Turner’s cell phone], at any time of day or night, owing to the
potential need to locate [Corey Turner’s cell phone] outside of daytime
hours.
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be included in the same application. We agree that such an argument would fail.
See United States v. Barajas, 710 F.3d 1102, 1109 (10th Cir. 2013) (“[N]othing in the
Fourth Amendment prevents us from considering whether certain facts in the affidavit
support probable cause for the GPS data in addition to the wiretaps. Warrants
frequently authorize a search of more than one place, and one set of facts may provide
probable cause for both searches.”). Corey Turner also does not argue that the
application in support of the request for PLI for his cell phone lacked probable
cause.10 See United States v. Gabrio, 295 F.3d 880, 882 (8th Cir. 2002) (“The Fourth
Amendment requires a showing of probable cause to support a search warrant.”).
Corey Turner does argue that in the joint application the government requested a
warrant to obtain PLI for his cell phone without obtaining a stand-alone warrant that
meets the procedural requirements of Federal Rule of Criminal Procedure 41. He
asserts that any evidence seized as a result of that PLI request for his cell phone
should be suppressed.
Corey Turner is correct that no separate warrant to obtain the PLI from his cell
phone was issued pursuant to Rule 41. But the government counters that it
nevertheless complied with all procedural requirements of Rule 41, albeit not in a
traditional manner in all instances, and that suppression is not warranted. The
issuance of a Combination Order granting both wiretap authorization and permission
to seize PLI from a cell phone, without a stand-alone Rule 41 warrant, presents
several challenging and relatively novel issues for our review.
10
The other constitutional requirements of a warrant were also met in this case:
The Combination Order met the particularity requirement by identifying both the
phone to be tracked and the type of information to be obtained, and no one disputes
the Combination Order was issued by a neutral and disinterested magistrate. See
Dalia v. United States, 441 U.S. 238, 255 (1979) (describing constitutional
requirements for warrants).
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As an initial matter, Corey Turner asserts that law enforcement essentially
converted his cell phone into a tracking device as that term is defined in
18 U.S.C. § 3117(b) and referenced in Rule 41. Neither party briefed this issue on
appeal, and we are reluctant to resolve an issue like this without adversarial briefing.
The government’s approach on appeal is to assume, without conceding, this fact for
purposes of analyzing whether Rule 41 procedures were adhered to. We will do the
same and assume, without deciding, that the cell phone in this case should be treated
as a tracking device for purposes of the procedural requirements of Rule 41.11
Rule 41 requires that a warrant for a tracking device “must identify the person
or property to be tracked, designate the magistrate judge to whom it must be returned,
and specify a reasonable length of time that the device may be used.”
Fed. R. Cr. P. 41(e)(2)(C). In this case, the Combination Order identified Corey
Turner’s cell phone by phone number and by its International Mobile Subscriber
Identity number and described it as a “prepaid account” being used by Corey Turner,
Sr. This description sufficiently identified the property, and resulting person, to be
tracked. Indeed, Corey Turner does not argue otherwise.
The Combination Order does not “designate the magistrate judge to whom [the
warrant] must be returned” as required in Rule 41(e)(2)(C). As the government points
out, the Combination Order did require that reports be submitted to “this Court”
regarding “what progress has been made toward achievement of the authorized
objectives and the need for continued interception.” The Combination Order does
not, however, discuss the return of the “warrant” providing for the gathering of PLI.
With regard to the time limit in Rule 41, the Combination Order does expressly limit
11
Whether the requirements of a traditional warrant or a warrant for a tracking
device are imposed on the Combination Order in this case is not likely to make a
difference in the ultimate analysis and resolution of this issue because the alleged
violations of Rule 41 are statutory in nature, not constitutional, regardless of which
type of Rule 41 warrant the government was attempting to obtain.
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the collection of PLI to a period of thirty days, which does not exceed Rule 41’s outer
limit of 45 days. See Fed. R. Cr. P. 41(e)(2)(C).
Rule 41 also requires that a warrant for a tracking device “command the officer
to . . . complete any installation authorized by the warrant within a specified time no
longer than 10 days.” Fed. R. Cr. P. 41(e)(2)(C)(i). What “installation” means in the
context of a cell phone is not clear. Given our approach to this issue on appeal,
however, we will give Corey Turner the benefit of the doubt: The Combination Order
fails to address the issue of installation in any way and fails to identify the specified
time within which such installation must take place.12 See id.Rule 41(f) addresses the requirements for executing and returning the warrant.
For a tracking device, the officer executing the warrant must include “the exact date
and time the device was installed and the period during which it was used.”
Fed. R. Cr. P. 41(f)(2)(A). This was not done. The government argues the Sealing
Application, filed after the electronic wiretap surveillance concluded, “functioned as
a warrant return.” Yet, nowhere in the Sealing Application (or the district court’s
order granting the Sealing Application) is the PLI, or the request to obtain PLI, ever
mentioned. In fact, in the Sealing Application, the government expressly describes
its April 4, 2011, application as one “for authorization to intercept communications
over [Corey Turner’s] telephone,” making no reference to the PLI. (Emphasis added).
12
The government points out that the interception of wire communications shall
continue “for a period of thirty days measured from the earlier of the day on which
investigative or law enforcement officers first begin to conduct an interception under
this Order or ten days after this Order is entered.” This, the government asserts, is
how the Combination Order complies with the requirement that any installation occur
within 10 days. The quoted language applies only to the wiretap communications,
however. The Combination Order does not include similar language in connection
with the 30-day limit on the collection of PLI.
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Similarly, no separate document regarding the PLI was returned to the court.
See Fed. R. Cr. P. 41(f)(2)(B) (“Within 10 days after the use of the tracking device
has ended, the officer executing the warrant must return it to the judge designated in
the warrant.”).
Additionally, the government failed to provide notice, or seek permission for
delayed notice, to Corey Turner that his phone had been tracked, as required under
Rule 41(f)(2)(C) and (f)(3). The district court order granting the government’s
Sealing Application specifies “[t]hat the notification requirements to Title 18, United
States Code, Section 2518(8)(d), be postponed as to all parties intercepted during this
subject wire surveillance until further order of this Court.” The notice delay was
provided for the wiretap communications, under § 2518(8)(d), but it was never
requested by the government or provided by the district court regarding the PLI
obtained pursuant to Rule 41.
In sum, a substantial number of Rule 41’s procedural requirements for
preparing, executing, and returning a warrant for a tracking device were not followed
with respect to the seizure of PLI from Corey Turner’s phone. The government failed
to designate a judge to which the warrant must be returned, return the warrant,
execute the warrant by installing the device, provide the requisite date and time
information for installation of the device, and provide notice following execution of
the warrant. See Fed. R. Cr. P. 41(e)(2)(C) and (f)(2). The government applied for
both wiretap surveillance and PLI in a joint application and received a Combination
Order; in so doing, it appears that the procedures for the wiretap order were
scrupulously followed, but the procedures for issuing a Rule 41 warrant were not.
The question remaining is what remedy results from these violations of the federal
rules.
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“We apply the exclusionary rule to violations of Rule 41 only if a defendant is
prejudiced or reckless disregard of proper procedure is evident.” United States v.
Bieri, 21 F.3d 811, 816 (8th Cir. 1994). “To determine prejudice, we ask whether the
search would have occurred had the rule been followed. If so, there is no prejudice
to the defendant.” United States v. Hyten, 5 F.3d 1154, 1157 (8th Cir. 1993). We
recognize that this case does not present a single or minor violation of Rule 41.
See, e.g., United States v. Sigillito, 759 F.3d 913, 925 (8th Cir. 2014) (concluding
that a minor violation of Rule 41—the officers’ failure to leave a copy of the warrant
at the location searched—did not justify exclusion). Here, a Rule 41 warrant was
subsumed in a wiretap order, and a significant number of the procedural requirements
in Rule 41 were overlooked or ignored. Despite these deficits, however, Corey
Turner offers no argument that the search and ultimate seizure of the PLI associated
with his cell phone would not have occurred had a stand-alone warrant issued and had
Rule 41 been adhered to. See Bieri, 21 F.3d at 816.
Corey Turner also does not suggest the government acted in reckless disregard
of Rule 41 when it failed to seek a separate warrant or follow the execution and return
requirements of Rule 41. See United States v. Berry, 113 F.3d 121, 123 (8th Cir.
1997) (analyzing the “reckless disregard” issue as akin to “bad faith”). And the
government prepared a 70-page affidavit in support of its joint application, providing
far more evidence in support of the request for the Combination Order than it likely
would have presented for a PLI warrant alone.
We are concerned about the number of Rule 41 violations in this case. The
government requested both a wiretap order and a Rule 41 warrant, and the procedural
requirements for both should have been followed. Without a showing of prejudice
or a suggestion of reckless disregard, however, exclusion of the evidence is not the
proper remedy. Id.; see also Hyten, 5 F.3d at 1157 (“Absent a constitutional
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infirmity, the exclusionary rule is applied only to violations of Federal Rule 41 that
prejudice a defendant or show reckless disregard of proper procedure.”). Corey
Turner has made no attempt to show either. Thus, under the facts and circumstances
of this particular case, suppression of the evidence seized is not warranted, and the
district court properly denied the motion.
B. Testimony of Jerriereneika Dorsey
Donald Turner and Corey Turner both argue the district court erred by
admitting Jerriereneika Dorsey’s lay-opinion testimony about the meaning of certain
drug-related terms used in intercepted phone calls. “We review evidentiary rulings
of a district court for abuse of discretion, giving substantial deference to the district
court’s determinations, . . . [and] revers[ing] only if an error affects the substantial
rights of the defendant or has more than a slight influence on the [jury’s] verdict.”
United States v. Manning, 738 F.3d 937, 942 (8th Cir. 2014) (quotation and internal
citations omitted) (last alteration in original).
Jerriereneika Dorsey was charged as a co-conspirator in this case, but she
entered a plea agreement with the government and agreed to testify. During the first
part of her testimony, Jerriereneika Dorsey described her involvement in the
conspiracy. In the course of doing so, she defined several drug-related terms for the
jury. These terms included “soft” and “hard” (powder cocaine and crack cocaine);
“8-ball” (3.5 grams); “quarter” (7 grams); “hitting the licks” (taking drugs to
customers); “blow” (powder cocaine); “cookie” (a large quantity of drugs); and
“stack” (one thousand dollars, as in 12 stacks = $12,000). Neither defendant objected
to this testimony, and this testimony is not challenged on appeal.
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The government then asked Jerriereneika Dorsey to listen to several intercepted
telephone calls between other members of the conspiracy—including Corey Turner
and Donald Turner—and to interpret some of the words and phrases used in those
conversations. During this portion of her testimony, Jerriereneika Dorsey testified
about what Corey Turner, Donald Turner, and others meant when they used different
words and phrases. For example, she testified “clock” meant scale; “going to the
store” meant going to get drugs; “2 Gs” meant 2 grams; “change” meant money;
“lick” meant customer; “O” meant ounce; “hit a lick” meant to make some money;
and “fifteen” or “little pack” meant a small quantity of drugs. The government did
not qualify Jerriereneika Dorsey as an expert pursuant to Federal Rule of Evidence
702 before she testified about these terms. Instead, the government offered, and the
district court admitted, this testimony pursuant to Rule 701 as opinion testimony by
a lay witness. This is the testimony that defendants objected to at trial and that is at
issue on appeal.
Pursuant to the Federal Rules of Evidence, a lay witness may only provide
opinion testimony that is “(a) rationally based on the witness’s perception; (b) helpful
to clearly understanding the witness’s testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope
of Rule 702.” Fed. R. Evid. 701. “Personal knowledge or perceptions based on
experience [are] sufficient foundation for lay opinion testimony.” United States v.
Faulkner, 636 F.3d 1009, 1018 (8th Cir. 2011) (quotation omitted). But “[l]ay
opinion testimony is admissible only to help the jury or the court to understand the
facts about which the witness is testifying and not to provide specialized explanations
or interpretations that an untrained layman could not make if perceiving the same acts
or events.” United States v. Peoples, 250 F.3d 630, 641 (8th Cir. 2001).
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The district court in this case found that “with regard to what [Jerriereneika
Dorsey] interprets the meaning to be, she’s giving a lay opinion as a co-participant
or a co-conspirator, and for that reason the Court believes that’s proper testimony.”
But Jerriereneika Dorsey did not testify about these telephone calls based on her
“personal knowledge or perceptions.” She was not a participant in most of the
conversations she interpreted during her testimony, nor was she a witness to the
events described in those conversations. Instead, the government asked her to
interpret words and phrases used in the drug trade, just as it might ask a law
enforcement officer to do. See Peoples, 250 F.3d at 641; see also Fed. R. Evid. 701,
702.
We recognize that Jerriereneika Dorsey is not a law enforcement officer. And
she was a participant in the same charged conspiracy as Donald Turner, Corey Turner,
and the others recorded in the calls, suggesting she may indeed have had firsthand
knowledge of how members of the conspiracy used the terms and phrases she defined.
But her testimony was not focused on how the members of this particular conspiracy
used specific words or phrases based on her personal interactions with those
individuals. To offer Jerriereneika Dorsey’s testimony based on her specialized
knowledge of terminology used in drug trafficking—and not based on her own
participation in, or personal knowledge of, the recorded conversations—the
government needed to qualify her as what she was: an expert. See United States v.
Delpit, 94 F.3d 1134, 1145 (8th Cir. 1996) (“It is well established that experts may
help the jury with the meaning of jargon and codewords.”); cf. United States v.
Johnson, 28 F.3d 1487, 1496 (8th Cir. 1994) (district court properly allowed
unindicted co-conspirator to testify pursuant to Fed. R. Evid. 702 as an expert on drug
trafficking based on his “extensive experience in the business of drug trafficking”).
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To the extent that Jerriereneika Dorsey was improperly allowed to offer
testimony based on her specialized knowledge, rather than based on her personal
knowledge of the charged conspiracy, we do not think the error affected the jury’s
verdict. Jerriereneika Dorsey had already described several terms and phrases
without objection. And two other witnesses interpreted similar words and phrases for
the jury without objection, including terms for quantities of drugs such as “zip,”
“quarter,” “8-ball,” and “dime.” Other witnesses also defined “rock,” “clock,”
“tickets,” “quick flip,” “butter,” “rack,” and “licks” for the jury. While Jerriereneika
Dorsey defined additional terms, we do not believe these were sufficiently different
in kind and scope to warrant a new trial. Cf. United States v. Londondio, 420 F.3d
777, 789 (8th Cir. 2005) (holding that admission of hearsay evidence that is
cumulative of properly admitted evidence “is not likely to influence the jury and is
therefore harmless error”).
C. Admission of Prior Convictions
Each defendant argues that the district court improperly allowed the
government to introduce one or more prior convictions into evidence at trial. Each
defendant first challenges the admission of a prior drug-possession conviction.
Donald Turner also challenges the admission of his 2002 conviction for distribution
of cocaine and his 2008 conviction for distribution of crack cocaine. Antonio Turner
challenges the admission of 2002 convictions for sale and distribution of crack
cocaine.
Evidence of a defendant’s prior convictions is inadmissible to show a
defendant’s “criminal propensity,” United States v. Pierson, 544 F.3d 933, 940 (8th
Cir. 2008), that is, to show a defendant’s character or that he “acted in accordance
with the character,” Fed. R. Evid. 404(b)(1). This evidence may be admissible,
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however, for other purposes, including to prove “motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed.
R. Evid. 404(b)(2). For evidence of a prior conviction to be admissible, the party
seeking to admit the evidence must show it is “(1) relevant to a material issue; (2)
similar in kind and not overly remote in time to the crime charged; (3) supported by
sufficient evidence; and (4) higher in probative value than prejudicial effect.” United
States v. Trogdon, 575 F.3d 762, 766 (8th Cir. 2009) (quotation omitted); see Fed. R.
Evid. 403 (“The court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of . . . unfair prejudice . . . .”). Although Rule
404(b) excludes propensity evidence lacking an admissible purpose, we consider the
rule one of inclusion. United States v. Molina, 172 F.3d 1048, 1054 (8th Cir. 1999).
We review the admission of evidence of prior convictions for abuse of discretion and
will reverse that ruling “only if it is clear that the evidence admitted had no bearing
on any material issue and was offered solely to prove the defendant’s criminal
propensity.” Peoples, 250 F.3d at 638.
The introduction of these prior drug-related convictions at trial gives us pause.
The government sought to admit this evidence as relevant to show each defendant’s
intent or knowledge. See Trogdon, 575 F.3d at 766 (evidence of prior conviction
must be “relevant to a material issue”). But the government never explained what
intent or knowledge the prior convictions purportedly showed or how this evidence
was relevant to a particular offense charged. We recognize the ample precedent in
this circuit suggesting evidence of a prior drug conviction is nearly always admissible
to show a defendant’s knowing participation in the charged crime or his intent to
participate in it. See, e.g., United States v. Horton, 756 F.3d 569, 579 (8th Cir. 2014);
United States v. Gipson, 446 F.3d 828, 831 (8th Cir. 2006); United States v. Frazier,
280 F.3d 835, 847 (8th Cir. 2002); United States v. Williams, 895 F.2d 1202, 1205
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(8th Cir. 1990). But that precedent should not invite passive treatment of the Federal
Rules of Evidence.
Instead, the government, as the proponent of the evidence, must be prepared
to show a permissible purpose for admission of the prior conviction. In a
drug-conspiracy case, intent and knowledge will always be at issue because they are
elements of the charged offense. See Eighth Circuit Manual of Model Criminal Jury
Instructions § 6.21.846A (2014) (requiring government to prove, among other
elements, that defendant “intentionally joined in the agreement” and “knew the
purpose of the agreement”) (emphasis added). But Rule 404(b) requires more.
Simply asserting—without explanation—that the conviction is relevant to a material
issue such as intent or knowledge is not enough to establish its admissibility under
the Federal Rules. See United States v. Mothershed, 859 F.2d 585, 589 (8th Cir.
1988) (“We consider 404(b) a rule of inclusion . . . . But this does not mean that all
such evidence is admissible simply on invocation of the Rule.” (quotation and
internal citation omitted)); United States v. Miller, 673 F.3d 688, 696 (7th Cir. 2012)
(“Rule 404(b) does not provide a rule of automatic admission whenever bad acts
evidence can be plausibly linked to ‘another purpose,’ such as knowledge or intent,
listed in the rule.”). Even under an inclusive view of Rule 404(b), a prior conviction
is admissible only if certain requirements are met: It must be relevant in the particular
case and it cannot be impermissible propensity evidence. See Rule 404(b)(1), (2)
(providing that evidence of prior bad acts “may be admissible for another purpose,”
but it is “not admissible” to prove criminal propensity); see also Old Chief v. United
States, 519 U.S. 172, 181 (“‘Although . . . propensity evidence is relevant, the risk
that a jury will convict for crimes other than those charged—or that, uncertain of
guilt, it will convict anyway because a bad person deserves punishment—creates a
prejudicial effect that outweighs ordinary relevance.’” (quoting United States v.
Moccia, 681 F.2d 61, 63 (1st Cir. 1982) (Breyer, J.)) (internal quotation marks
-20-
omitted)); Miller, 673 F.3d at 697 (explaining that trial judges “must balance the
relevance of the proposed use of the evidence . . . against the high risk that the
evidence will also . . . [establish] propensity to commit the charged crime”).
Before evidence of a prior conviction is admitted, the district court should ask
why the government seeks to admit it. How, for example, is Corey Turner’s 1995
conviction for possession of cocaine relevant to his intent to join a drug conspiracy
in 2010? Or how is Donald Turner’s 2002 conviction for distribution of cocaine
relevant to show he had knowledge of the 2010 cocaine-distribution conspiracy, or
that he intended to join it? See United States v. Caldwell, 760 F.3d 267, 282 (3d Cir.
2014); Miller, 673 F.3d at 699. If the only answer to these questions is that his prior
conviction (i.e., wrongdoing) shows he intended to commit another wrongdoing
(i.e., the 2010 conspiracy), then the evidence shows nothing more than criminal
propensity and under Rule 404(b)(1) is inadmissible. See Mothershed, 859 F.2d at
589. If, on the other hand, the government offers a relevant, non-propensity purpose
for the evidence, the court should then determine whether admission of that evidence
is nevertheless substantially more prejudicial than probative. Only if these types of
questions are asked, and adequately answered, can the district court determine
whether evidence of prior bad acts, including prior convictions in drug cases, may be
admitted pursuant to Rule 404(b) or whether it must be excluded because it is offered
solely to prove criminal propensity or is substantially more prejudicial than probative.
See Pierson, 544 F.3d at 940; Fed. R. Evid. 403.
These questions were not asked or answered in this case. On appeal, the
government simply asserts the evidence is relevant against Donald and Antonio
Turner for the same singular reason: “Donald [and Antonio] Turner’s general denial
defense placed his state of mind at issue, and the Rule 404(b) evidence was relevant
to show his intent and knowledge.” So we are left with little more than recitation of
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the Rule, without a careful analysis of how it applies to the prior convictions offered
as evidence at trial.
Given the extent and nature of the evidence presented against the defendants,
however, if there was any error in the admission of this evidence, that error was
harmless. The government presented considerable other evidence in this case against
each defendant to support the jury verdict, including recorded phone conversations
and controlled buys as well as co-conspirator testimony describing each defendants’
role in the conspiracy. As a result, in this particular case, we cannot say that evidence
of these prior convictions had a “substantial and injurious effect or influence in
determining the jury’s verdict.” See United States v. Mejia-Uribe, 75 F.3d 395, 399
(8th Cir. 1996) (quotation omitted).
D. Admission of Antonio Turner’s Arrest and Video
Antonio Turner was arrested on March 12, 2011, after a traffic stop, and the
arrest was videotaped by law enforcement. Antonio Turner filed a motion to suppress
any statements he made during the encounter with the officers, but the district court
denied it. On appeal, he argues the district court erred “in allowing, over [his]
objections, any admission by Antonio Turner concerning his arrest on March 12,
2011.” At trial, the government did offer the video of his arrest as evidence, but the
video was played to the jury without sound. Antonio Turner makes no allegation that,
contrary to the trial record, the jury heard any of the conversations recorded on the
video. Because any statements Antonio Turner may have made during his arrest were
not admitted at trial, any alleged error in denying the motion to suppress those
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statements is harmless.13 See United States v. Jones, 801 F.2d 304, 313 (8th Cir.
1986) (holding that error was not prejudicial because evidence to be suppressed was
never entered at trial and defendant failed to “allege that the government bolstered its
case in any way with the evidence it discovered”).
E. Donald Turner’s Motion for Judgment of Acquittal
At the close of the government’s case, Donald Turner moved for judgment of
acquittal on the conspiracy count, asserting that the majority of the government’s
evidence to support his involvement in the conspiracy came from self-interested
witnesses who lacked credibility—specifically Joe Lenzie Turner and Jerriereneika
Dorsey. As a result, he argued, there was insufficient evidence presented at trial to
link him to, and convict him of, a conspiracy to possess with intent to distribute
cocaine. The district court denied the motion.
We review the district court’s denial of a motion for judgment of acquittal
based on the sufficiency of the evidence de novo and “affirm unless, viewing the
evidence in the light most favorable to the Government and accepting all reasonable
inferences that may be drawn in favor of the verdict, no reasonable jury could have
13
The district court also denied Antonio Turner’s motion to suppress “physical
evidence.” Antonio Turner does not appeal this ruling. He does assert that “the
evidence seized as a result of the questioning” that took place before Antonio Turner
was given Miranda warnings must also be suppressed, but he does not identify what
evidence the district court erroneously failed to suppress. Because Antonio Turner
fails in his burden to show a nexus between any physical evidence presented at trial
and his allegedly custodial statements, we decline to address this argument on appeal.
See United States v. Hastings, 685 F.3d 724, 728 (8th Cir. 2012) (concluding the
defendant “bears the burden of establishing a nexus between the alleged
constitutional violation and the discovery of the [evidence to be suppressed]”).
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found [the defendant] guilty.” United States v. Chatmon, 742 F.3d 350, 352 (8th Cir.
2014) (quotation omitted) (alteration in original). “In reviewing the sufficiency of the
evidence, however, we do not review the credibility of the witnesses.” United States
v. Tarnow, 705 F.3d 809, 814 (8th Cir. 2013). “It is the function of the jury, not an
appellate court, to . . . judge the credibility of witnesses. Such credibility findings are
virtually unreviewable on appeal.” Id. (quotation omitted) (alteration in original).
At trial, the government relied heavily on cooperating witnesses to describe for
the jury the nature and scope of the alleged conspiracy. Joe Lenzie Turner testified
that he bought cocaine with Donald Turner, that Donald Turner had driven him to
pick up cocaine, and that he sold cocaine to Donald Turner for re-distribution.
Jerriereneika Dorsey’s testimony concerning Donald Turner’s involvement in cocaine
trafficking was more limited, but she did tell the jury that Donald Turner had “put[]
money in” for quantities of cocaine.
Donald Turner’s sole argument on appeal is that these witnesses were not
credible. At trial, the jury heard that both of them had entered cooperation plea
agreements. The jury learned about the terms of those agreements and the witnesses’
expectations in signing them. In addition, before each of these witnesses testified, the
district court specifically instructed the jury: “You may give the testimony of this
witness such weight you think it deserves. Whether or not the testimony of a witness
may have been influenced by [his or her] hope of receiving a reduced sentence is for
you to decide.” The jury had a full opportunity to make its own credibility
determinations about both Joe Lenzie Turner and Jerriereneika Dorsey, and the
district court specifically instructed it to do so. Like the district court, we will not
weigh the credibility of witnesses. See United States v. Seibel, 712 F.3d 1229, 1237
(8th Cir. 2013). The district court did not err in denying Donald Turner’s motion for
judgment of acquittal.
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F. Sufficiency of the Evidence Regarding Antonio Turner
Antonio Turner asserts the evidence at trial was insufficient to support his
conviction for conspiracy. To establish this charge, the government has the burden
of showing there was a conspiracy, that the defendant knew of the conspiracy, and
that the defendant intentionally joined the conspiracy. United States v. Aguilar, 743
F.3d 1144, 1148 (8th Cir. 2014). Antonio Turner argues the evidence failed to show
he either knew of or intentionally joined the conspiracy. We review “the sufficiency
of the evidence in a jury trial de novo, but we examine the evidence in a light most
favorable to the jury’s verdict, resolving factual disputes and accepting all reasonable
inferences in favor of upholding the verdict.” Manning, 738 F.3d at 945 (internal
citation omitted). “We will affirm a jury’s verdict if any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Id.
(quotation omitted).
At trial, Joe Lenzie Turner testified about Antonio Turner’s involvement in the
conspiracy. According to Joe Lenzie Turner, Antonio Turner was distributing drugs
in 2009; and in 2010, he was getting cocaine from Joe Lenzie Turner in one to two
ounce quantities for re-distribution. Joe Lenzie Turner also testified that after
Antonio Turner was released following his March 2011 arrest, an uncle provided
Antonio Turner with drugs for distribution; Joe Lenzie Turner later resumed
supplying drugs to Antonio Turner. Joe Lenzie Turner also told the jury that Antonio
Turner knew how to cook powder cocaine into crack cocaine and that Antonio Turner
“did real good business. He got rid of his drugs fast and paid me good.” And the jury
heard intercepted phone conversations between Joe Lenzie Turner and Antonio
Turner during which they talked about cocaine sales and meetings relating to the drug
operation.
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Finally, the jury heard evidence that a confidential informant conducted three
controlled buys of cocaine from Antonio Turner in 2010, all of which were monitored
and recorded by law enforcement. This same informant testified that Antonio Turner
was one of his sources for both powder and crack cocaine for approximately one year
prior to the controlled transactions. Viewing the evidence presented at trial in the
light most favorable to the jury’s verdict, a reasonable jury could have found Antonio
Turner guilty beyond a reasonable doubt on the conspiracy charge. Manning, 738
F.3d at 945.
G. Antonio Turner’s Sentencing
Antonio Turner argues the district court erred at sentencing by failing to
provide an individualized assessment of the drug quantity attributable to him in
determining the appropriate advisory Guidelines range. When reviewing the district
court’s determination of the applicable Guidelines range, we review factual findings
for clear error and the district court’s “construction and application of the Guidelines
de novo.” United States v. Pappas, 715 F.3d 225, 228 (8th Cir. 2013) (quotation
omitted).
Antonio Turner’s sentence was not determined by the drug-quantity calculation
made at sentencing. Instead, it was dictated by the statute. The jury found Antonio
Turner guilty of one count of conspiracy to possess with intent to distribute five
kilograms or more of cocaine and one count of distribution of cocaine.14 See 21
U.S.C. § 841(b)(1)(A)(ii). Because the government gave notice of its intent to seek
14
The distribution charge was not accompanied by a drug quantity. However,
it was Antonio Turner’s conviction on the conspiracy charge, not on the distribution
charge, that resulted in a mandatory sentence of life imprisonment.
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an enhanced penalty pursuant to 21 U.S.C. § 851, Antonio Turner, upon conviction
for the charged conspiracy, faced a mandatory sentence of life imprisonment as a
result of his prior convictions. See 21 U.S.C. §§ 841, 851. The district court
concluded Antonio Turner did in fact have two prior qualifying convictions and
imposed a sentence of life imprisonment. At that point, the advisory Guidelines range
and the statutory mandatory minimum sentence became the same. USSG § 5G1.2
cmt. n.3(B) (“In particular, where a statutorily required minimum sentence on any
count is greater than the maximum of the applicable guideline range, the statutorily
required minimum sentence on that count shall be the guideline sentence on all
counts.”). Any alleged error in the calculation of the total quantity of drugs
attributable to Antonio Turner for purposes of determining his Guidelines range was
harmless; based on his two prior felony drug convictions, the district court had no
choice but to impose a life sentence.
H. Admission of Cocaine Quantities
Donald Turner asserts the district court erred when it admitted at trial evidence
of cocaine seized by law enforcement on three separate occasions—August 20, 2010;
March 12, 2011; and June 21, 2011—because he had no connection to those drug
quantities. “We review a district court’s evidentiary rulings for clear abuse of
discretion, reversing only when an improper evidentiary ruling affected the
defendant’s substantial rights or had more than a slight influence on the verdict.”
United States v. Espinoza, 684 F.3d 766, 778 (8th Cir. 2012) (quotation omitted).
Donald Turner failed to object to the inclusion of this evidence at trial, so plain-error
review applies. Id.We find no plain error. “In a conspiracy case, each member of a conspiracy
may be held criminally liable for any substantive crime committed by a co-conspirator
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in the course and furtherance of the conspiracy, even though those members did not
participate in or agree to the specific criminal act.” Id. (quotation omitted). “[S]o
long as the partnership in crime continues . . . an overt act of one partner may be the
act of all without any new agreement specifically directed to that act.” Pinkerton v.
United States, 328 U.S. 640, 646–47 (1946) (quotation omitted). The cocaine seized
on the three dates at issue was sold, purchased, possessed, or distributed by
individuals shown at trial to be part of the same charged conspiracy. Donald Turner
argues he was not a participant in those criminal acts. Donald Turner may not have
been directly involved in these transactions, but that is not the standard for
determining whether the evidence is admissible. Evidence at trial showed that
Donald Turner was a member of a conspiracy that included the individuals involved
in the three contested incidents, and evidence of the seized cocaine on these occasions
was relevant to show the nature and extent of the conspiracy. See United States v.
Johnston, 353 F.3d 617, 624 (8th Cir. 2003) (co-conspirator “can still be held
responsible for the reasonably foreseeable [controlled] buys that occurred on behalf
of the conspiracy” even if he was not directly involved in those buys).
I. Filing of § 851 Notice
Donald Turner contends his right to due process was violated when the
government failed to provide proper notice of the prior convictions it relied on to seek
an enhanced sentence pursuant to 21 U.S.C. § 851. As a result, he argues, his
sentence was unlawfully enhanced. “We review de novo whether the government’s
notice complied with § 851.” United States v. Higgins, 710 F.3d 839, 844 (8th Cir.
2013). At issue in this case is the government’s April 3, 2012, Information to Provide
Notice of Enhanced Sentence (Information)—which listed four prior
convictions—and its April 12, 2013, 1st Amended Information to Provide Notice of
Enhanced Sentence (Amended Information)—which listed five prior convictions. At
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sentencing, the government identified the two specific convictions it relied on for
purposes of the enhancement: a 2000 conviction for felony possession of crack
cocaine from Cape Girardeau County, Missouri; and a 2008 conviction for
distribution of a controlled substance from Mississippi County, Missouri.
Donald Turner asserts his right to due process was violated when the
government added a fifth prior conviction to the Amended Information. See United
States v. Johnson, 462 F.3d 815, 823 (8th Cir. 2006) (“[T]he purpose of notice under
§ 851 is to comply with the constitutional requirements of due process.”). The
government did not, however, rely on this fifth, late-noticed conviction for the
enhancement. As such, this alleged error did not affect Donald Turner’s sentence.
Donald Turner also asserts that both the original Information and the Amended
Information contained misinformation about the details of his prior convictions. With
regard to the 2000 conviction, the Information erroneously stated that he had been
convicted of the counts originally charged against him, rather than the count (felony
possession of crack cocaine) to which he ultimately pleaded guilty. The Amended
Information corrected the count of conviction but erroneously changed the date of
conviction to the date of his guilty plea. With regard to the 2008 conviction, the
Information misidentified the county of origin and mistakenly identified the offense
of conviction as “Distribution, Delivery, and Manufacturing.” The Amended
Information corrected the county of origin and properly noted the conviction was for
distribution of a controlled substance only.
Donald Turner asserts that “[t]hese clerical errors should have been correct
[sic] ‘prior’ to trial.” But the statute allows for the amendment of clerical errors “at
any time prior to the pronouncement of sentence.” 21 U.S.C. § 851; see Higgins, 710
F.3d at 844 (setting forth various clerical errors). The clerical errors in the
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description of the 2008 conviction were properly amended by the Amended
Information, and that document was filed before the pronouncement of Donald
Turner’s sentence.
Both the Information and Amended Information contained clerical errors
describing the 2000 conviction. Under the particular circumstances of this case,
however, we cannot say that Donald Turner did not receive the notice required by due
process. First, the only error in the Amended Information regarding the 2000
conviction was the date of that conviction. But the correct date of the 2000
conviction was included in the originally filed Information. Donald Turner had
sufficient information between the two documents to identify the conviction upon
which the government relied.
Second, we note that Donald Turner stipulated at trial to both of the prior
convictions used for the enhancement. A stipulation was read into the record at trial,
stating that Donald Turner pleaded guilty to possession of cocaine base, in Cape
Girardeau County, Missouri, on September 28, 2000, and was sentenced on October
16, 2000, and this conviction was identified by the same case number that was listed
in both the Information and the Amended Information. The stipulation also included
the 2008 conviction, correctly identifying the offense of conviction, the date of
conviction, and the county of origin—specifically explaining the charge was
originally filed in another county but was transferred to Mississippi County at a later
date. This conviction also had the same identifying case number as in the Amended
Information.
Third, the government offered at sentencing, without objection, the records
supporting these two prior convictions. Donald Turner also concedes his prior
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convictions were correctly stated in his PSR, which he reviewed before his sentencing
hearing.
“The purpose of the § 851 notice requirement is to provide the defendant with
notice of the prior conviction, the effect it would have on the maximum sentence, and
an opportunity to dispute the conviction.” Higgins, 710 F.3d at 844 (quotation
omitted). The Information and the Amended Information, in combination, provided
all of the correct information concerning the prior convictions used to enhance
Donald Turner’s sentence: The correct offense of conviction, the correct county of
origin, the correct date of conviction, and the correct case number. Both the
Information and the Amended Information also included the life sentence the
government was seeking upon a conviction on the conspiracy count.
Any error in the Amended Information concerning the 2000 conviction did not
deprive Donald Turner of his due process right of notice. See id. The better course
of action would have been for the government to amend all of the clerical mistakes
in the Information and Amended Information at some point prior to the
pronouncement of sentence. On the record before us, however, we conclude that
Donald Turner received “reasonable notice of the Government’s intent to rely on
. . . particular conviction[s] and a meaningful opportunity to be heard.” United States
v. Curiale, 390 F.3d 1075, 1076 (8th Cir. 2004).
Donald Turner also asserts he received ineffective assistance of counsel at
sentencing. Such claims are typically more appropriately raised in a collateral
proceeding under 28 U.S.C. § 2255. Because Donald Turner has not demonstrated
his claim is an “exceptional case” allowing for our review on direct appeal, we
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decline to address it.15 See United States v. Sanchez-Gonzalez, 643 F.3d 626, 628
(8th Cir. 2011).
III. Conclusion
For the reasons above, we affirm Corey Turner’s, Donald Turner’s, and
Antonio Turner’s convictions and sentences.
______________________________
15
Because we decline to address Donald Turner’s claim of ineffective assistance
of counsel, we also deny the government’s motion to strike that portion of Donald
Turner’s brief.
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