United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-3244
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Jermaine Darnell Samuels, *
*
Appellant. *
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Submitted: June 18, 2010
Filed: July 19, 2010
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Before LOKEN, BRIGHT and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.
A jury found Jermaine Samuels guilty on two counts of distribution of cocaine
base and one count of possession of more than fifty grams of cocaine base with the
intent to distribute. See 21 U.S.C. § 841(a)(1). Samuels’s convictions stemmed from
his two sales of crack cocaine to a confidential informant, as well as evidence
recovered from a search of his girlfriend’s car and of the home where Samuels lived
with his girlfriend. Samuels appeals, arguing that there was insufficient evidence to
support the jury’s guilty verdicts and that the district court1 abused its discretion in
admitting evidence of his previous conviction for crack cocaine distribution. For the
following reasons, we affirm.
I. BACKGROUND
In the summer of 2008, Rodney Jones informed Corporal Daniel Westbay of
the Davenport, Iowa Police Department that Samuels was distributing crack cocaine.
Jones was working as an informant, after police found crack cocaine, drug
paraphernalia, and buy money from previous controlled purchases during a search of
his home. Jones agreed to arrange a purchase of crack cocaine from Samuels.
On August 30, 2008, Jones called Samuels’s cell phone and asked about buying
crack cocaine. Police recorded the call. Jones asked to buy one-half ounce of crack
cocaine, but because Samuels’s price was too high, Jones and Samuels settled on one-
quarter ounce, sold in two “eight balls.” Samuels and Jones agreed to meet in the
parking lot of a local grocery store. Davenport police set up surveillance around the
parking lot and concealed an audio recording device on Jones. Consistent with
department protocol, officers searched Jones before taking him to the parking lot and
gave him pre-recorded money with which to buy the cocaine.
While Jones waited in the parking lot, Samuels arrived, driving a maroon
Dodge Intrepid. Jones got in the car and exchanged the money for the crack cocaine.
Samuels seemed suspicious, however, asking Jones where his car was. Jones told
Samuels that Jones’s girlfriend had dropped him off and was inside the grocery store,
so Samuels drove Jones to the front of the store. Jones waited just inside the store for
Samuels to leave before returning to Corporal Westbay with the crack cocaine.
1
The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa
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On October 11, 2008, Jones called Samuels to arrange another purchase of
crack cocaine. The police again recorded the call. Jones asked to buy more eight
balls, but Samuels said he had only $200 worth of individually packaged rocks of
crack cocaine. Samuels told Jones to meet him in the parking lot of the restaurant
where Samuels worked. Police again set up surveillance, searched Jones before the
buy, and gave him buy money. This time police fitted Jones with both video and
audio recording devices.
Samuels met Jones in the restaurant parking lot, and they both got in Samuels’s
Intrepid. Jones bought the $200 worth of crack cocaine rocks and noticed that
Samuels had additional crack cocaine with him. The video recording device captured
an image of Samuels’s face during the transaction. Jones left the car and returned
with the crack cocaine to where Corporal Westbay was waiting. Samuels left the
parking lot a short time later, and officers in unmarked cars followed him.
The officers decided to stop Samuels but requested that an officer in a marked
patrol car make the stop. As soon as the officer turned on his patrol car’s lights and
siren, Samuels drove off at a high rate of speed. The chasing officers were unable to
follow him. Samuels immediately called his girlfriend, Karen Fulford, on his cell
phone, telling her that police had attempted to stop him and that she needed to get rid
of the drugs he had hidden in the house. Samuels told Fulford that there was
marijuana hidden in a closet and bags of crack cocaine hidden in a kitchen drawer.
Fulford gathered the drugs and put them in the trunk of her car. After putting her two
children in the car, she drove away.
Corporal Westbay, who by then had driven to the house where Samuels and
Fulford lived, watched Fulford hurriedly leave the house. At Corporal Westbay’s
request, other officers stopped Fulford. Fulford consented to a search of the car’s
trunk, where police found the 60.42 grams of crack cocaine, 405.8 grams of
marijuana, and drug paraphernalia she had removed from the house. Fulford also
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consented to a search of the house, where police found $7,020, mostly in $20 bills, in
a woman’s coat, as well as drug packaging materials and a digital scale.
Fulford was taken to the Davenport police station, where she told officers about
Samuels’s call. In a recorded phone conversation between Fulford and Samuels that
night, Samuels promised to come to the station but did not do so. Fulford was
released, and Samuels later tearfully apologized to her and promised to turn himself
in. Instead, Samuels continued dealing drugs. On November 15, 2008, Samuels was
stopped for speeding in Illinois. The Illinois state trooper who made the stop noticed
marijuana in the center console of Samuels’s car and arrested him. During a
subsequent search of the entire car, the trooper discovered more marijuana, for a total
of 132.6 grams. Samuels told the trooper he was trying to “get back into the . . .
game” because “he knew he would have to rat some people out if he was ever going
to get out from under” the drug charges he expected to face.
A federal grand jury returned an indictment charging Samuels with two counts
of distribution of cocaine base and one count of possession of more than fifty grams
of cocaine base with intent to distribute. Prior to trial, Samuels filed a motion in
limine, seeking to exclude evidence of his 2001 conviction for distribution of cocaine
base. That motion was denied.
At trial, Jones testified about the two purchases of crack cocaine he made from
Samuels on August 30 and October 11. The Government also played the audio and
video recordings of those transactions. Corporal Westbay and other officers testified
about their surveillance of the controlled purchases, including the fact that they never
lost sight of Jones during the transactions. Fulford testified about the phone call she
received from Samuels on October 11. Samuels’s cell phone records confirmed his
call to Fulford and showed an unusually high volume of cell phone activity in general.
The Government also introduced the evidence recovered from Fulford’s car and from
the search of the house where she and Samuels lived. A fingerprint expert testified
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that fingerprints recovered from the drug packaging materials in the home matched
Samuels’s fingerprints.
Over Samuels’s objection, Sergeant Troy McClimon testified about the
circumstances of Samuels’s 2001 crack cocaine distribution conviction. Sergeant
McClimon testified that he found Samuels and another person in a hotel room with
crack cocaine, marijuana, and various drug packaging materials. Samuels admitted
that some of the crack cocaine in the room was his and that he had made four
purchases of crack cocaine from someone named Vegas. Sergeant McClimon also
testified that Samuels declined an offer to assist in other investigations.
The jury convicted Samuels on all three counts. As a career offender,
Samuels’s advisory sentencing guidelines range was 360 months’ to life imprisonment
on the two distribution convictions. See U.S.S.G. § 4B1.1. More importantly, he was
subject to a mandatory life sentence under 21 U.S.C. § 841(b)(1)(A) on the conviction
for possession of more than fifty grams of cocaine base with intent to distribute. The
court sentenced Samuels to life imprisonment and concurrent sentences of 360
months.
II. DISCUSSION
We begin with Samuels’s argument that the district court erred in denying his
motion for judgment of acquittal because there was insufficient evidence to support
his convictions. “We review the denial of a motion for acquittal de novo.” United
States v. Thropay, 394 F.3d 1004, 1005 (8th Cir. 2005).
We employ a strict standard of review regarding denials of motions for
acquittal, viewing the evidence in the light most favorable to the guilty
verdict, resolving all evidentiary conflicts in favor of the government,
and accepting all reasonable inferences supported by the evidence. A
jury verdict will not lightly be overturned and we will reverse only if no
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reasonable jury could have found the defendant guilty beyond a
reasonable doubt.
United States v. Donnell, 596 F.3d 913, 924 (8th Cir. 2010) (quoting United States v.
Espinosa, 585 F.3d 418, 423 (8th Cir. 2009)).
Samuels argues that the testimony of Jones and Fulford should not be believed,
because they were hoping that, in return for their testimony, they would not face drug
charges themselves. He also points out that Jones was paid for acting as an informant.
As an initial matter, the “[c]redibility determinations by a jury are ‘virtually
unassailable on appeal.’” United States v. Nguyen, Nos. 08-3940/09-1026, 2010 WL
2346690, at *5 (8th Cir. June 14, 2010) (quoting United States v. Vickers, 528 F.3d
1116, 1120 (8th Cir. 2008)). “On numerous occasions we have upheld jury verdicts
based solely on the testimony of cooperating witnesses.” Vickers, 528 F.3d at 1120.
Samuels has not shown that this is the rare case where “no reasonable person could
believe the incriminating testimony.” See United States v. Watson, 952 F.2d 982, 988
(8th Cir. 1991).
Indeed, the Government presented substantial evidence to corroborate the
testimony of Jones and Fulford. Recordings of Jones’s phone calls to Samuels and of
the transactions in Samuels’s car tracked Jones’s testimony about those crack cocaine
deals. Officers who observed the controlled purchases also confirmed Jones’s
testimony, testifying that they watched Jones during the entire transactions and that
he did not interact with anyone other than Samuels before returning to Corporal
Westbay with the crack cocaine he had purchased. Cell phone records confirmed that
Samuels called Fulford after the officers’ unsuccessful attempt to stop him, and his
unusally high volume of calls further suggested his involvement in the drug trade.
Fingerprints on drug packaging materials found during the search of the home
supported Fulford’s claim that the drugs belonged to Samuels. Finally, the Illinois
state trooper who stopped Samuel’s car testified that Samuels admitted that he was
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trying to “get back in the game.” The evidence in this case was overwhelming, so we
reject Samuels’s challenge to the district court’s denial of his motion for judgment of
acquittal. See Vickers, 528 F.3d at 1120.
Samuels also challenges the denial of his motion in limine, which sought to
exclude evidence of his 2001 crack cocaine conviction. Samuels argues that Sergeant
McClimon’s testimony about this incident was inadmissible under Federal Rule of
Evidence 404(b). “Evidentiary rulings are reviewed for abuse of discretion, and we
afford deference to the district judge who saw and heard the evidence.” Donnell, 596
F.3d at 919 (quoting Espinosa, 585 F.3d at 430). Rule 404(b) provides that evidence
of a previous conviction is “not admissible to prove the character of a person in order
to show action in conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident . . . .” “Evidence is admissible under Rule
404(b) if: ‘(1) it is relevant to a material issue; (2) it is similar in kind and not overly
remote in time to the crime charged; (3) it is supported by sufficient evidence; and (4)
its potential prejudice does not substantially outweigh its probative value.’” Donnell,
596 F.3d at 921 (quoting United States v. Frazier, 280 F.3d 835, 847 (8th Cir. 2002)).
“Prior felony drug convictions are relevant to show intent and knowledge in a
drug prosecution when a defendant makes a general denial defense, which necessarily
places the defendant’s state of mind at issue.” United States v. Hawkins, 548 F.3d
1143, 1147 (8th Cir. 2008), cert. denied, 556 U.S. ---, 129 S. Ct. 2757 (2009).
Because Samuels made a general denial defense in this case, the evidence of his prior
conviction was relevant to a material issue. Additionally, the 2001 offense was
similar in kind to the present charges, as both involved the distribution of crack
cocaine. While Samuels argues that the 2001 offense is not similar in kind because
the events took place in a hotel while the current transactions occurred in a car, this
difference alone is not sufficient to render them dissimilar. See United States v.
Stenger, 605 F.3d 492, 499 (8th Cir. 2010). We have also upheld the admission of
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evidence of previous convictions which were more remote in time than the eight years
here. See, e.g., United States v. Gaddy, 532 F.3d 783, 789 (8th Cir.) (upholding
admission of eleven year old conviction), cert. denied, 555 U.S. ---, 129 S. Ct. 587
(2008). Samuels does not dispute that the fact of his previous conviction was
supported by sufficient evidence. Given the significant probative value of the 2001
conviction with respect to Samuels’s knowledge and intent, we cannot say that any
potential unfairly prejudicial effect of admitting the previous conviction substantially
outweighed its probative value, and the district court did not abuse its discretion in
admitting it.
However, the Government did not merely introduce the fact of Samuels’s
previous conviction. Sergeant McClimon’s testimony included details of the incident,
which Samuels also argues violated Rule 404(b). In particular, the Government
introduced the fact that Samuels refused to assist the police with other investigations
and that he admitted making four purchases of crack cocaine from a person named
Vegas. We need not decide whether the admission of this additional information
violated Rule 404(b), if we conclude than any error in its admission was harmless.
Donnell, 596 F.3d at 919. “The test for harmless error is whether the erroneous
evidentiary ruling ‘had a substantial influence on the jury’s verdict.’” Id. (quoting
United States v. Lupino, 301 F.3d 642, 645 (8th Cir. 2002)). As previously discussed,
the Government’s evidence in this case was overwhelming. As a result, we conclude
that even if the details of the 2001 incident were erroneously admitted, those details
did not have “a substantial influence on the jury’s verdict.” Id. Therefore, any error
in admitting the circumstances surrounding Samuels’s 2001 conviction was harmless.
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III. CONCLUSION
For the foregoing reasons, we affirm Samuels’s conviction.2
LOKEN, Circuit Judge, concurs in the judgment.
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2
After oral argument, Samuels filed a motion asking the court to reopen the
appeal and allow him to submit briefing on an issue that was raised before and
rejected by the district court, namely the constitutionality of his life sentence under the
Eighth Amendment. Samuels did not raise this issue in his opening brief on appeal,
and we deny the motion to reopen. See United States v. Anderson, 570 F.3d 1025,
1031 n.3 (8th Cir. 2009).
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