United States v. Reginald Gardner

139 F. App'x 762
CourtCourt of Appeals for the Eighth Circuit
DecidedJuly 11, 2005
Docket04-2227
StatusUnpublished
Cited by1 cases

This text of 139 F. App'x 762 (United States v. Reginald Gardner) 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. Reginald Gardner, 139 F. App'x 762 (8th Cir. 2005).

Opinions

PER CURIAM.

Reginald Stern Gardner was found guilty by a jury of possession with intent to distribute cocaine base, cocaine, and marijuana, in violation of 21 U.S.C. § 841(a)(1). Because Gardner had sustained two prior felony convictions for controlled substance offenses, the district court1 sentenced Gardner as a career of[764]*764fender pursuant to USSG § 4B1.1, and imposed a term of 360 months’ imprisonment. We affirm.

In the spring of 2003, police obtained information that drugs were being sold from an apartment at 404 Second Street N.W. in Mason City, Iowa. Police conducted surveillance and determined that there was heavy foot traffic going in and out of the apartment, a circumstance consistent with drug dealing. In June of 2003, police arrested Jennifer Boggess on unrelated theft charges. With hopes of receiving favorable treatment, Boggess told the police that she had obtained cocaine and cocaine base from an individual at the Second Street apartment on several occasions, including earlier that day. The police then obtained a warrant to search the apartment.

While executing the search warrant, the police found Gardner in the residence, and they seized a small amount of marijuana and approximately $500 in cash from Gardner’s person. A search of the apartment turned up 23 grams of marijuana prepackaged in twenty-three small bags, 122.65 grams of cocaine, and 9.98 grams of cocaine base. The prepackaged marijuana was discovered in the back bedroom where Gardner and three others were apprehended. The cocaine and cocaine base were discovered in a food container hidden in the kitchen. Additionally, police seized scales, drug packaging materials, and other drug paraphernalia. At the time of his arrest, Gardner gave the police a false name and produced false identification.

At trial, Gardner’s theory of defense was that he was at the apartment that evening to buy drugs, not to sell drugs. Gardner further argued that there was insufficient evidence directly linking him to the larger distribution quantities of drugs. Boggess reluctantly testified that she had purchased drugs at the apartment from Gardner and from others. Another witness, Katy Warren, testified that she had observed Gardner selling cocaine and cocaine base from the apartment in June 2003. To prove Gardner’s knowledge and intent to distribute, the government also introduced evidence of Gardner’s two prior convictions for drug distribution pursuant to Federal Rule of Evidence 404(b).

On appeal, Gardner argues that the district court abused its discretion by: (1) allowing 404(b) evidence of his two prior convictions; (2) rejecting his requested jury instruction related to drug addicts; and (3) denying his motion for a judgment of acquittal and a new trial. Gardner further argues that his sentence is unconstitutional. We address each argument individually.

1. 404(b) Evidence.

Gardner argues that the district court abused its discretion by admitting evidence under Rule 404(b) that he was convicted in 1996 for sale of crack cocaine and in 1995 for possession with intent to distribute cocaine. We have held consistently that Rule 404(b) is a rule of inclusion. United States v. O’Connell, 841 F.2d 1408, 1422 (8th Cir.1988). The government may introduce evidence of prior crimes if the evidence is: “1) relevant to a material issue; 2) similar in kind and not overly remote in time to the charged crime; 3) supported by sufficient evidence; and 4) such that its potential prejudice does not substantially outweigh its probative value.” United States v. Crenshaw, 359 F.3d 977, 998 (8th Cir.2004). We review the district court’s decision to admit 404(b) evidence for abuse of discretion. O’Connell, 841 F.2d at 1422.

[765]*765Gardner claims the two prior drug convictions had no relevance to whether he was at the apartment to sell drugs or merely to buy drugs. We disagree. Gardner’s theory of defense was that he no longer lived at the apartment at the time of the search, and that he was there only to buy drugs, not to sell them. This defense put his intent at issue (ie., did he intend only to buy, and not to sell?), and Gardner’s defense also challenged the government’s position regarding his knowledge that drugs were at the apartment and prepackaged for resale.

Gardner’s 1995 conviction was for possession with intent to distribute cocaine. At the time of that arrest, he provided a false name to police and was in possession of 57.9 grams of powder cocaine and 50.7 grams of crack cocaine. Gardner’s 1996 conviction was for selling cocaine. At the time of that arrest, he provided a false name to police and was in possession of 10 grams of cocaine and $784. We agree with the government that this evidence is relevant in the instant case to establish that Gardner knew the drugs were in the residence, knew they were packaged for resale, and intended to sell drugs. Gardner’s prior convictions were relevant to a material issue, similar in kind, not too remote in time, and supported by sufficient evidence. Unlike the 404(b) evidence in Crenshaw, the potential for unfair prejudice from the evidence in this case was not substantially outweighed by its probative value.

2. Drug Addict Jury Instruction.

Gardner argues that the district court should have instructed the jury on specific reasons why a drug addict’s testimony may lack credibility. We review the district court’s choice of jury instructions for an abuse of discretion. Campos v. City of Blue Springs, 289 F.3d 546, 551 (8th Cir .2002).

The district court is not obligated to provide a special addict-informant instruction. United States v. Hoppe, 645 F.2d 630, 633 (8th Cir.1981). The presence of the following factors may obviate the need for an addict witness instruction: 1) a dispute as to whether the witness is actually an addict; 2) cross-examination concerning the witness’ addiction; 3) an instruction alerting the jury to view the witness’ testimony with care; and 4) corroboration of the witness’ testimony. Id. “When reviewing a challenge to the jury instructions, we recognize that the district court has wide discretion in formulating the instructions and will affirm if the entire charge to the jury, when read as a whole, fairly and adequately contains the law applicable to the case.” United States v. Casas, 999 F.2d 1225, 1230 (8th Cir.1993).

Although it was under no obligation to do so, the district court gave the jury a special instruction regarding the credibility of the two informants. In Instruction 8, entitled “CREDIBILITY-DRUG ABUSER,” the district court instructed the jury that it must examine the testimony of the two witnesses with greater care. Further, the district court allowed Gardner to cross-examine the witnesses regarding their addiction and their motive to cooperate with the government.

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