United States v. John Monroe Kime, Also Known as Jack Kime, United States of America v. Randall Kirk Bell

99 F.3d 870
CourtCourt of Appeals for the Eighth Circuit
DecidedJanuary 3, 1997
Docket95-2944, 95-3160
StatusPublished
Cited by132 cases

This text of 99 F.3d 870 (United States v. John Monroe Kime, Also Known as Jack Kime, United States of America v. Randall Kirk Bell) 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. John Monroe Kime, Also Known as Jack Kime, United States of America v. Randall Kirk Bell, 99 F.3d 870 (8th Cir. 1997).

Opinions

FLOYD R. GIBSON, Circuit Judge.

Jack Kime and Randall Bell were each convicted by a jury of drug distribution, conspiracy, and firearm violations. Kime appeals his conviction. Bell appeals his conviction and sentence. We affirm in part and remand in part.

I. BACKGROUND

In April of 1994, the Polk County Sheriffs Office in conjunction with federal law enforcement officials initiated wiretap and video surveillance of a suspected drug distribution ring headed by Jack Kime. The investigation culminated in the execution of multiple search warrants on the homes and businesses of various members of the conspiracy on May 12, 1994. Kime and Bell were subsequently arrested and charged in a multi-count indictment along with Randy Groves, Clifford Brown, Joseph Ybarra, Joel Dodd, Dennis Smith, Dan Fedkenheuer, Bobby McGee, Donald Leach, Kelly Hilpipre, George Stable, and Daniel Davis, Jr. Ybarra and Hil-pipre entered into plea agreements but did not testify at trial. The remaining codefend-ants, with the exception of Fedkenheuer who remains a fugitive, entered into plea agreements and testified at trial against Kime and Bell. Bell’s former co-conspirators' as well as numerous other witnesses testified as to Kime and Bell’s involvement in the drug distribution scheme, including a series of armed robberies of fellow drug dealers perpetrated in the fall of 1994 for the purpose of obtaining drugs, capital, and firearms. Kime and Bell both testified in their own defense and denied any wrongdoing.

The jury convicted Jack Kime of one count of continuing criminal enterprise in violation of 21 U.S.C. § 848(a) and (c) (1994) (Count One); one count of conspiracy to possess with intent to distribute marijuana, cocaine, and methamphetamine in violation of 21 U.S.C. § 846 (1994) (Count Two); one count of distribution of methamphetamine in violation of 21 U.S.C. § 841(a)(1) (1994) (Count Three); two counts of possession with intent to distribute methamphetamine, cocaine, and marijuana in violation of 21 U.S.C. § 841(a)(1) (1994) (Counts Eight and Ten); and three counts of using or carrying a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1) (1994) (Counts Nine, Eleven, and Fourteen). Kime was sentenced to a total of seventy-five years imprisonment.

The jury convicted Bell of one count of conspiracy to possess with intent to distribute marijuana, cocaine, and methamphetamine in violation of 21 U.S.C. § 846 (1994) (Count Two); one count of possession with intent to distribute marijuana in violation of [877]*87721 U.S.C. § 841(a)(1) (1994) (Count Fifteen); and two counts of carrying or using a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1) (1994) (Counts Fourteen and Sixteen). Bell was sentenced to a total of fifty-five years imprisonment.

II. DISCUSSION

A. JACK KIME’S ARGUMENTS:

1. Reasonable Doubt Instruction

Kime and Bell objected to the district court’s proposed reasonable doubt instruction1 based on Eighth Circuit Model Jury Instruction 3.11 and proposed the following additional sentence: “A reasonable doubt is one that fairly and naturally arises from the evidence or lack of evidence produced by the Government.” The district court rejected Kime’s proposed addition and elected to proceed instead with the unadorned version of the model instruction. Kime and Bell both claim error.

“We review the formulation of jury instructions by the district court for abuse of discretion.” United States v. Parker, 32 F.3d 395, 400 (8th Cir.1994). We find none. The jury instructions as a whole effectively communicated the defendants’ point without the proposed addition to the reasonable doubt , instruction: In particular, Instruction No. 13 instructed the jurors on the presumption of innocence, and Instruction No. 4 instructed the jurors to use their reason and common sense to draw deductions or conclusions from the facts established by the evidence. “The defendant is not entitled to a particularly worded instruction where the instructions given, when viewed as a whole, correctly state the applicable law and adequately and fairly cover the substance of the requested instruction.” Id. This Court has repeatedly approved the particular reasonable doubt instruction in issue here, United States v. Simms, 18 F.3d 588, 593 (8th Cir. 1994), and while “such a lack of evidence instruction may be useful, the district court, in its discretion, may decline to employ it.” United States v. Smith, 602 F.2d 834, 838-39 (8th Cir.), cert. denied, 444 U.S. 902, 100 S.Ct. 215, 62 L.Ed.2d 139 (1979).

2. Kime’s Books

Among the evidence seized from Asphalt Maintenance & Repair, the conspiracy’s cover business, were several incriminating books. Some of these publications were devoted to the subject of illegal drugs. These included: The Secret Garden, Marijuana, Manufacturing Methamphetamine, , Marijuana Grower’s Guide, Psychedelic Chemistry, and Construction and Operation for Clandestine Drug Laboratories. Other titles covered burglary and theft-related topics, such as: Techniques of Safecracking, Techniques of Burglar Alarm Bypassing, How to Make Your Own Professional Lock Tools, Vol. 1-b, Techniques of Safe and Vault Manipulation, and The Complete Guide to Lock-picking by “Eddie the Wire.” These books were admitted into evidence over Kime’s objection. While Government witness and former co-conspirator Randy Groves testified that the books belonged to Kime, he also admitted that he had never seen any member of the conspiracy, including Kime, read the books and that some of them appeared to have never been opened. Kime argues that these books should have been excluded under Fed.R.Evid. 403 because the risk of unfair prejudicé greatly outweighed their probative value. The Government argues that the books are at least probative of Kime’s criminal intent, especially when viewed in conjunction with the additional evidence of the conspiracy’s involvement in drug distribution and armed robbery. 1

Rule 403 of the Federal Rules of Evidence gives the district court discretion to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

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Bluebook (online)
99 F.3d 870, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-john-monroe-kime-also-known-as-jack-kime-united-states-ca8-1997.