United States v. Bobbie Keys

721 F.3d 512, 2013 WL 3746004, 2013 U.S. App. LEXIS 14512
CourtCourt of Appeals for the Eighth Circuit
DecidedJuly 18, 2013
Docket12-3259
StatusPublished
Cited by35 cases

This text of 721 F.3d 512 (United States v. Bobbie Keys) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Bobbie Keys, 721 F.3d 512, 2013 WL 3746004, 2013 U.S. App. LEXIS 14512 (8th Cir. 2013).

Opinion

GRUENDER, Circuit Judge.

Bobbie Keys was convicted by a jury of conspiracy to distribute 280 grams or more of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846. He appeals the district court’s 1 denial of his motion to suppress and request for a Franks hearing, his motion for judgment of acquittal based on sufficiency of the evidence, and his motions to exclude testimony based on alleged Brady violations. For the reasons discussed below, we affirm.

I. Background

In the summer of 2009, detectives with the Lincoln, Nebraska police department were investigating the distribution of large quantities of cocaine and crack cocaine in Lincoln. A prospective cooperating source, Zachari Kilcoin, indicated during a proffer interview that an individual named Bobbie Keys, whom Kilcoin guessed to be twenty-five or twenty-six years of age, was a major source of the crack cocaine that was reaching Lincoln. Kilcoin claimed *515 that he had driven to Keys’s residence near the intersection of 7th and Georgia streets in Kansas City, Kansas approximately seventeen times since 2006, sometimes by himself and sometimes with a second individual, Michael Mitchell, purchasing from four to twelve ounces of crack cocaine from Keys each time. Kil-coin also claimed to have seen additional amounts of crack cocaine at Keys’s residence on each occasion, sometimes as much as a kilogram, and to have seen Keys sell crack cocaine to other individuals.

The Lincoln detectives forwarded this information to detectives with the Kansas City police department. The Kansas City detectives identified a twenty-eight-year-old resident of Kansas City named Bobbie Keys and returned a photograph of him to the Lincoln detectives. At a follow-up interview, Kilcoin identified Keys’s photograph from a stack of photographs presented by the Lincoln detectives. When asked to provide a further description of Keys’s residence, Kilcoin stated that Keys drove a blue Pontiac Firebird and that his residence was identifiable by a stairwell leading from a porch to the driveway area.

The Lincoln detectives next interviewed Mitchell, whom Kilcoin had identified as accompanying him on several trips to Keys’s residence. Mitchell, who became a second cooperating source, corroborated many of the details offered by Kilcoin regarding their trips to Kansas City to purchase crack cocaine. Mitchell described the location of the residence where the transactions occurred as near Quindaro Boulevard. Although Mitchell knew the seller at that residence only by the name “Chicken,” he identified the photograph of Keys as “Chicken.”

On October 20, 2009, the detectives arranged for Kilcoin to place a recorded telephone call to Keys. A portion of their conversation was as follows:

Kilcoin: I’m scraping some shit up now, so in a few-like a day or so or something, I can probably come touch you. Keys: All right. Bet. Let me know what’s up.
Kilcoin: Hey, you going to have the four way for me?
Keys: Yeah.
Kilcoin: All right. Well, shit, I’m about to touch you — I’m about to touch you, like, tomorrow or the next day when I get everything together, nig, and then I’ll pull up on you.
Keys: All right. Bet.

Kilcoin characterized this exchange to the detectives as Kilcoin informing Keys that he was attempting to get together sufficient funds to buy four ounces of crack cocaine, and Keys agreeing that Kilcoin could visit him and that Keys would be able to sell him four ounces of crack cocaine. Also on October 20, 2009, using a satellite and street view image database, Kilcoin was able to direct the detectives to the precise location of Keys’s residence, which the detectives identified as 2701 North Early Street.

On November 11, 2009, Kansas City detectives confirmed that Keys listed the 2701 North Early address on his driver’s license, had cited that address as his residence to police after an arrest earlier that summer, and was currently the primary account holder for utilities at that address. Surveillance revealed that Keys was present at the residence and that a blue Pontiac Firebird was parked in the driveway. That afternoon, Kilcoin placed another recorded telephone call to Keys, and a portion of that conversation was as follows:

Kilcoin: ... Well, just have — just do the four because that’s all I got enough bread for is just four of them, so ... Keys: Okay. All right.
*516 * * *
Keys: All right. [W]ell, like, when you coming? Tomorrow or today or what? Kilcoin: No, tomorrow. I ain’t coming today.
Keys: Just hit me when you’re on your way?
Kilcoin: Yep.
Keys: All right. Bet.
Kilcoin: All right. So, yeah what do you want for the four of them?
Keys: Uhhh....
Kilcoin: I got 4,000, man, so ...
Keys: Okay. Yeah, I think I — I can squeeze them in for that.
Kilcoin: All right. Cool.
Keys: All right. Bet.

Kilcoin placed a final recorded telephone call to Keys the next day, and a portion of that conversation was as follows:

Kilcoin: ... [J]ust on the freeway about — about, like — oh, shit, I’d say about 50 miles away.
Keys: All right. Bet. Okay.
Kilcoin: You got that shit there, man ... ?
Kilcoin: You — you got it there with you? Keys: Yeah. I was just waiting until you got close, and you already know I packed it up.

After that call, Kansas City detective Eric Jones summarized the events above in an application to the Kansas state court in Wyandotte County for a search warrant for the 2701 North Early residence. In his affidavit in support, Jones described the recorded telephone calls as follows:

On October 20, 2009 CS1 [Kilcoin, cooperating source # 1] made a recorded phone call to KEYS. CS1 advised that CS1 was trying to get some money together and wanted to buy some “crack” from KEYS. KEYS said that CS1 could come down and confirmed that he could sell CS1 four ounces.
At 1:10 p.m. [on November 11, 2009], Detectives utilized CS1 to make a controlled phone call to KEYS. CS1 informed KEYS that he needed 4 ounces of “crack” cocaine and would be down “tomorrow”....
On November 12, 2009 at 12:22 p.m. CS1 called KEYS about the drug transaction. CS1 asked, “hey do you have that shit with you?” KEYS responded, “yeah, I was waiting for you to get close, you know I already picked [sic] it up.[”]

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Bluebook (online)
721 F.3d 512, 2013 WL 3746004, 2013 U.S. App. LEXIS 14512, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-bobbie-keys-ca8-2013.