USA v. Meeks

United States of America, Appellee,

v.Douglas M. Meeks, Appellant.

United States of America, Appellee,

v.Lloyd D. Meeks, Appellant.

No. 09-3222

No. 09-3234

United States Court of Appeals FOR THE EIGHTH CIRCUIT

Submitted: September 24, 2010

Filed: April 12, 2011

Appeals from the United States District Court for the Southern District of Iowa.

Before GRUENDER, ARNOLD, and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

Douglas Meeks and Lloyd Meeks appeal their convictions for distribution of crack cocaine in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1), (b)(1)(B), and for conspiracy to distribute crack cocaine in violation of 21 U.S.C. §§ 841(b)(1)(B), 846, as well as their respective life sentences imposed by the district court¹ following conviction. We affirm.

I.

The following facts are taken from testimony given during the three-day trial of Douglas M. Meeks (Douglas) and Lloyd D. Meeks (Lloyd), who are maternal half brothers. The facts are presented in the light most favorable to the verdict. See United States v. Lockett, 601 F.3d 837, 839 (2010).

In September 2007, federal authorities arrested Gentry Ellis on charges of drug distribution. Subsequent to his arrest, Monique Nicholson, Ellis's girlfriend, and Cardale Smith, Ellis's son, contacted law enforcement and offered to serve as cooperating individuals. Both admitted to having previously purchased drugs from Douglas and stated that they would be willing to participate in controlled buys of additional drugs from Douglas.

Law enforcement authorities organized a controlled buy for April 8, 2008. On that date, Nicholson and Smith traveled to the Davenport Police Station where they and their vehicle were searched by officers. In monitored phone calls, Smith contacted Douglas and arranged for Smith and Nicholson to meet Douglas at a hospital parking lot near Nicholson's residence. Police officers provided Smith with $800 in prerecorded currency and installed a recording device on his person. While Nicholson and Smith were waiting at the hospital parking lot, Douglas called and instructed them to meet him in the parking lot of an O'Reilly's Auto Parts store. After Nicholson and Smith arrived at that location, Douglas drove up in a black sport utility vehicle. Smith entered the vehicle and exchanged the $800 for crack cocaine. When Smith and Nicholson returned to the police department, Smith turned over the crack cocaine to law enforcement, and officers searched Smith, Nicholson, and their vehicle again.

On June 20, 2008, Nicholson assisted law enforcement with a second controlled buy. Prior to this date, Nicholson had contacted Douglas about purchasing two ounces of crack cocaine from him, and Douglas had agreed to sell to Nicholson. While at the police department, Nicholson called Douglas to arrange for the purchase of crack cocaine. Douglas told her that his brother, Lloyd, would contact her. When Lloyd called Nicholson, Nicholson requested one ounce of crack cocaine. Lloyd responded that he thought she was looking for two ounces, and Nicholson stated that she had only enough money for one ounce. After following similar search procedures as with the April 8 controlled purchase, officers provided Nicholson with $900 in prerecorded money. Lloyd directed Nicholson to an apartment complex where his girlfriend, Jessica Balli, resided. After Nicholson arrived at the apartment complex, Lloyd drove up, entered an apartment using a key, exited the apartment, and entered Nicholson's vehicle. Lloyd exchanged an ounce of crack cocaine for the $900. In their prior negotiations, Douglas had informed Nicholson that the ounce of crack cocaine would cost $1000. Nicholson told Lloyd that she did not know when she would have the remaining $100 and asked who she should contact when she did get the money. Lloyd told her to contact Douglas. On June 23, 2008, Nicholson made a series of recorded phone calls to Douglas regarding the additional $100 owed to him for the crack cocaine. When she eventually made contact with Douglas, he directed Nicholson to give the $100 to her sister.

In a superseding indictment, Douglas and Lloyd were charged with conspiracy to distribute at least 50 grams of cocaine base (Count I) and distributing at least 5 grams of cocaine base (Counts II and III). Douglas was also charged individually with two counts of tampering with a person (Counts IV and V). After jury selection but before the jury was sworn in, the tampering counts against Douglas were dismissed. The jury found Douglas and Lloyd guilty on all drug counts. Because the district court found that both Douglas and Lloyd had two prior felony drug convictions, the court sentenced each to mandatory life imprisonment terms on the conspiracy count and concurrent terms of 360 months on the individual distribution counts. Each filed timely appeals of their convictions and sentences.

II. Trial Issues

A.

Douglas argues that the district court erred in denying Lloyd's motion for a mistrial based on the court's reading of the tampering with a witness counts that were dismissed prior to the beginning of the trial. The jury was empaneled on a Friday afternoon. At that time, the superceding indictment, which contained the tampering charges, was read to the jury. On Monday morning, the government moved to dismiss those charges. Douglas raised concerns that the superceding indictment had been read to the jury, and requested that "at a minimum" the court instruct the jury to refrain from considering the dismissed counts. Lloyd moved for a mistrial, arguing that he was prejudiced by the reading of the indictment that included the dismissed counts. The district court denied Lloyd's motion but granted Douglas's request, instructing the jury that the counts had been dismissed and that the jury "should not speculate as to whether the government had evidence or not that would support those charges." (Trial Tr. at 102.)

Douglas did not object to the dismissal of the tampering counts and failed to move for a mistrial or join in Lloyd's motion for mistrial. We have assumed, without deciding, that plain error review is appropriate in the situation where the defendant fails to move for mistrial. See United States v. Green, 560 F.3d 853, 859 (8th Cir.), cert. denied, 130 S. Ct. 288 (2009). Although Douglas received "exactly what his lawyer asked" for, id. (quoting United States v. Thompson, 289 F.3d 524, 526 (8th Cir. 2002)), we will, as we did in Green, review the district court's failure to grant a mistrial, id. (citing United States v. Ehrmann, 421 F.3d 774, 783 (8th Cir. 2005)).

We conclude that the district court did not plainly err in declining to declare a mistrial in this case. Under plain error review, the defendant "must show that the court committed an error that was plain, that affected his substantial rights, and that seriously affects the fairness, integrity or public reputation of judicial proceedings." United States v. Davis, 538 F.3d 914, 917 (8th Cir. 2008) (quotation omitted). Even if the reading of the superceding indictment to the empaneled jury was error, Douglas cannot show that his substantial rights were affected or that the fairness of the judicial proceedings is in question. The district court gave a clear instruction to the jury that the indictment was not proof and that the jury should not speculate as to why the counts were dismissed or what the evidence would have been regarding the dismissed charges.

B.

Both Douglas and Lloyd argue that the government failed to present sufficient evidence to support their convictions for conspiracy to distribute crack cocaine. We review de novo challenges to the sufficiency of the evidence presented at trial. United States v. Ironi, 525 F.3d 683, 689-90 (8th Cir. 2008). In conducting the review, we consider the evidence presented at trial in the light most favorable to the verdict and draw all reasonable inferences in the government's favor. United States v. McAtee, 481 F.3d 1099, 1104 (8th Cir. 2007). We avoid weighing the evidence or assessing the credibility of the witnesses. United States v. Santana, 524 F.3d 851, 853 (8th Cir. 2008). Reversal is warranted only if no reasonable jury could have found guilt beyond a reasonable doubt. Id.

To convict Douglas and Lloyd of conspiracy to distribute crack cocaine, the government had to prove that: (1) two or more people reached an agreement to distribute crack cocaine; (2) both Douglas and Lloyd voluntarily and intentionally joined that agreement; and (3) at the time Douglas and Lloyd joined the agreement, each knew its essential purpose. United States v. Harris, 493 F.3d 928, 931 (8th Cir. 2007). Proof of an express agreement is not necessary. United States v. Jiminez, 487 F.3d 1140, 1146 (8th Cir. 2007). We will affirm the conviction where the government establishes a tacit understanding between alleged co-conspirators. Id. Because many drug conspiracies involve secrecy, circumstantial evidence may be used to show that co-conspirators reached an agreement. Id.

We hold that the government presented sufficient evidence to support the convictions of both Douglas and Lloyd. The strongest proof is found in the June 20 controlled buy wherein Nicholson contacted Douglas to purchase crack cocaine, Douglas told Nicholson that Lloyd would get in contact with her, Lloyd did contact Nicholson and sold crack cocaine to her, Lloyd told Nicholson to contact Douglas about the remaining $100 she owed for the crack cocaine, and Nicholson received direction from Douglas to give the $100 to her sister. This evidence shows Douglas and Lloyd had reached an agreement to sell crack cocaine, had voluntarily joined that agreement, and were fully aware of its purposes.

This was not, however, the only evidence of conspiracy presented by the government. Darriccio Hopson testified that he sold crack cocaine from the Castlewood apartments in Davenport, Iowa. Hopson stated that he often worked...