United States v. Booker

24 F. App'x 268
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 16, 2001
DocketNo. 00-6022
StatusPublished

This text of 24 F. App'x 268 (United States v. Booker) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth 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. Booker, 24 F. App'x 268 (6th Cir. 2001).

Opinion

PER CURIAM.

On April 20, 2000, Velma Booker was found guilty by a jury of both possession with intent to distribute approximately 11.7 grams of cocaine base and possession with intent to distribute and distribution of approximately 0.8 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1). Booker appeals her conviction on two bases. First, she alleges that the district court improperly admitted hearsay testimony regarding a telephone call made to Booker’s cellular telephone and answered by police, in which the caller expressed interest in purchasing drugs from Booker. Second, Booker alleges that the district court improperly denied her motion for a new trial based on new evidence. We affirm.

I

On September 11, 1999, Officers Mark Griffin and Jeremy Hurst of the Henderson Police Department began their patrol duty at approximately 1:00 p.m.. Immediately prior to beginning the shift, Officer Griffin thoroughly searched the back seat of the patrol car for any hidden objects; the search included lifting up and searching underneath the car’s removable back seats. Shortly thereafter, the officers arrested Booker — for whom they had a drug arrest warrant — after observing her driving on one of Henderson’s main streets. After pulling her over and informing her of why she was stopped, the officers obtained consent to search Booker’s car and found, among other things, approximately $930 in cash, a spiral-bound ledger, and two drug scales. Agent Rodney Weaver of the 25th Judicial Drug Task Force of the Selmer Police Department later testified that all of these items are consistent with drug distribution. The officers testified that they did not search Booker’s person at that time, but conducted only a superficial weapons frisk.

The officers placed Booker in the back seat of the patrol car, where she waited alone for fifteen minutes while a tow truck was dispatched to tow her car. Officer Griffin testified that he noticed Booker shifting around in the back seat during the ride. Upon reaching the jail, Officer Hurst escorted Booker inside while Officer Griffin locked the car and brought the items seized from Booker’s car into the jail. Officer Griffin returned to the car and found four rock-like substances in a [270]*270clear baggy, later confirmed to be 11.7 grams of cocaine base, protruding from the back seat cushions. Two narcotics officers later testified that this amount of cocaine base was a distribution amount, not consistent with personal use.

Later in September 1999, Agent Weaver began a drug investigation of Booker, based on information received from a confidential informant, Deborah Smith, that Booker was selling drugs in the Henderson area. As part of the investigation, Agent Weaver recorded several telephone conversations between Smith and Booker, during which Booker attempted to sell three ounces of crack cocaine to Smith for $2,800. However, the deal did not go through because, according to Agent Weaver, Booker insisted that Smith go to Jackson, Tennessee to complete the deal because Booker did not want to transport that large an amount of drugs.

On October 2, 1999, Agent Weaver set up an undercover buy of $100 worth of cocaine from Booker. After meeting Smith at a pay phone, Agent Weaver had Smith call Booker and set up the buy, which took place at a nearby parking lot. Before both left in separate cars to go to the meeting spot, Agent Weaver testified that he searched Smith’s person, car, and purse to make sure she had no drugs on her and placed a tape recorder in Smith’s purse to record her conversations with Booker.

At the meeting spot, Agent Weaver was positioned across the street watching and taking photographs while Smith waited in the parking lot for Booker. When Booker arrived, Smith entered Booker’s car. Booker handed Smith a baggie of crack and Smith gave Booker $100. During the ensuing conversation, which was recorded on the tape recorder in Smith’s purse, the two discussed the current sale and the earlier-proposed sale of three ounces of crack. After the meeting, Smith met Agent Weaver at a predetermined location and gave him the purchased crack, which was later confirmed by laboratory analysis to be 0.8 grams of cocaine base.

Agent Weaver continued his investigation in the days following the purchase, recording several additional telephone conversations between Smith and Booker, in which Booker discussed the earlier purchase and expressed continued interest in selling to Smith the previously discussed three ounces of crack cocaine. On October 12, 1999, Booker agreed to meet Smith in Henderson and sell her four to eight hundred dollars worth of crack cocaine. The meeting was set up for a local parking lot and Smith arrived, wearing a hidden body wire and recorder and under police surveillance. When Booker arrived, she demanded that Smith take her immediately to her buyer and, concerned for Smith’s safety, Weaver and other agents stopped Booker’s car and arrested Booker. Both a cellular phone and a pager were found in Booker’s car and seized.

After the arrest, the cellular phone taken from Booker’s car rang, and Agent Robert Heathcock, who had assisted in making the arrest, answered the phone. Agent Heathcock testified that the conversation went as follows:

I answered the phone and asked the subject — I just answered. I said, ‘To.” And she goes, ‘Where’s Thelma?”

And I said, “Thelma’s busy.”

And the subject said, “Where she at?” And I said, “She over yonder. What you need?”

And the subject on the other end said something I couldn’t understand, and I said, “Who is this?”

She said, “Angela”

And I just hollered, “Angela?” And I said, “What you need?”

[271]*271She said, “A $25 piece.”

And I said — I said, “A $25 piece?”

She said, “Yeah, a $25 piece. Tell her to bring me a $25 piece.”

And I said, “Where?”

And she said, ‘You know where. Tell her she know where to bring it.”

And then I messed with her a little, and then I couldn’t understand — she said something else, and then she hung up. The name “Angela” appeared in the spiral-bound ledger found in Booker’s car on September 11,1999.

At trial, prior to Agent Heathcoek’s testimony, defense counsel objected to the admission of the telephone call on hearsay grounds. The district court allowed the entire conversation, finding that it was not hearsay because it was not an assertion and that the statement was marginally relevant on the issue of intent to sell. The court held that the statement was “offered to prove that someone is calling Ms. Booker’s phone to see if she would sell them some drugs.”

Also at trial, Smith testified extensively regarding Michael Ray Weaver (no relation to Agent Weaver), through whom, she testified, she met Booker. She testified that Weaver was “an acquaintance” whom she knew because her brother had married into Weaver’s family. However, in response to defense counsel’s questioning, she denied that she and Weaver were ever more intimately involved and she denied that she had ever smoked crack cocaine with Weaver and Booker. She farther denied having questioned Booker about “messing around” with Weaver after Weaver gave both women crack and gave Booker a larger piece.

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Bluebook (online)
24 F. App'x 268, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-booker-ca6-2001.