United States v. Smith

49 F.3d 362, 1995 WL 7680
CourtCourt of Appeals for the Eighth Circuit
DecidedJanuary 11, 1995
DocketNos. 93-3610, 93-4006, 93-4007, 94-1621, 94-1623 and 94-1751
StatusPublished
Cited by26 cases

This text of 49 F.3d 362 (United States v. Smith) 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. Smith, 49 F.3d 362, 1995 WL 7680 (8th Cir. 1995).

Opinion

WOLLMAN, Circuit Judge.

Defendants appeal from their various drug, money laundering and drug conspiracy, and firearm convictions, asserting numerous errors. We affirm as to all defendants except Cassell Bobo and Harold McMillan, with respect to whom we reverse and remand for resentencing in accordance with this opinion.

I.

In June 1992 a federal grand jury returned an indictment charging Cassell Bobo with three counts of drug distribution and one count of conspiracy to distribute drugs. On August 20, 1992, the grand jury returned a superseding indictment alleging 22 counts of drug related offenses, implicating eighteen defendants, including Bobo. The six defendants who now appeal were tried jointly and were found guilty on February 19, 1993.

All the defendants were convicted of conspiracy to distribute and to possess with intent to distribute cocaine and cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A) and 21 U.S.C. § 846. Three of the defendants were found guilty of additional charges related to the conspiracy. Dexter Darron Carr was found guilty of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and one count each of knowing and intentional distribution of cocaine and cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). McMillan was convicted of aiding and abetting the distribution of cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Bobo was convicted of conspiracy to launder money in violation of 18 U.S.C. §§ 1956(a)(1)(B)©, 1956(a)(1)(A), and 371; one count each of aiding and abetting the distribution of cocaine and cocaine base in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and two counts of distribution of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B).

The following facts were established at trial. In the mid-1980s, while a number of the defendants were still in high school and junior high school, Morris Botiz1 began selling cocaine in Minnesota with the aid of numerous drug couriers. McMillan helped Botiz and Derrick Edmund rent an apartment and get established in Minnesota and was involved throughout the duration of the conspiracy. The remainder of the defendants in this proceeding began dealing with the Botiz faction sometime in the late 1980s or early 1990s. Bobo and Travis Granger operated a store on Lake Street in Minneapolis called Today’s Fashion & Music. Wiretap and video surveillance evidence and drug notes discovered during garbage searches at Today’s Fashion & Music revealed that much of the drug related activity was coordinated from this store. Searches of [365]*365the various defendants’ apartments also yielded numerous triple-beam scales that are used for weighing out drugs, drug notes, pagers and cellular phone bills, and photographs showing the defendants’ association with one another. Defendants Donald Cornelius Gardner, Courtney Bernard Gardner, and Carr were involved in the trafficking and distribution of cocaine and cocaine base throughout 1992 when Bobo’s store was wiretapped. Defendant Edward Jerico Smith’s involvement in the conspiracy with Bobo ran through much of 1991. We address each defendant’s asserted errors in turn.

II.

A. Donald Cornelius Gardner

Donald Gardner was sentenced to a term of 128 months for his role in the conspiracy. He asserts on appeal that the district court violated his Sixth Amendment right to confrontation by unduly restricting the scope of his cross-examination of government witness James Page. Donald Gardner also contends that the evidence was insufficient to support his conviction and that the district court erred in its determination of the amount of drugs attributable to him.

Although it is true that counsel cannot expect a co-defendant’s attorney to protect his client’s rights, the district court did not abuse its discretion in disallowing duplicative cross-examination by Donald Gardner’s attorney. See United States v. Wilson, 787 F.2d 375, 386-87 (8th Cir.) (abuse of discretion determined by “focusfing] on the nexus between the information sought and the purpose of the cross-examination, the relevancy of the information, and the availability of other opportunities to elicit the information”), cert. denied, 479 U.S. 857, 107 S.Ct. 197, 93 L.Ed.2d 129, and cert. denied, 479 U.S. 865, 107 S.Ct. 223, 93 L.Ed.2d 151 (1986). Having reviewed the transcript, we find that Donald Gardner’s right to confrontation was adequately protected by the testimony elicited. The court allowed the attorneys for Donald and Courtney Gardner to pose numerous questions about Page’s status as a career offender, the penalties he faced and his plea agreement, his possible further reduction in sentence based on his testimony, and his desire to. get out of jail as soon as possible. The district court’s refusal to allow more of the same did not deny defense counsel the opportunity to expose facts from which the jury “could appropriately draw inferences relating to the reliability of the witness.” Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347 (1974); see United States v. Campbell, 845 F.2d 782, 787-88 (8th Cir.), cert. denied, 488 U.S. 965, 109 S.Ct. 490, 102 L.Ed.2d 527 (1988).

“When considering a sufficiency-of-the-evidence claim, we view the evidence in the light most favorable to the government, giving it the benefit of all favorable inferences.” United States v. Maxwell, 25 F.3d 1389, 1395 (8th Cir.), cert. denied, — U.S. -, 115 S.Ct. 610, 130 L.Ed.2d 519 (1994); see United States v. Karam, 37 F.3d 1280, 1287 (8th Cir.1994); United States v. Lucht, 18 F.3d 541, 552 (8th Cir.), cert. denied, — U.S. -, 115 S.Ct. 363, 130 L.Ed.2d 316 (1994). “Once a conspiracy is established, even slight evidence connecting a defendant to the conspiracy may be sufficient to prove the defendant’s involvement.” United States v.

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Bluebook (online)
49 F.3d 362, 1995 WL 7680, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-smith-ca8-1995.