United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-2154
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United States of America, *
*
Appellee, *
*
v. *
*
Dennis Dinwiddie, also known as D, *
*
Appellant. *
___________
Appeals from the United States
No. 09-2649 District Court for the
___________ Eastern District of Missouri.
United States of America, *
*
Appellee, *
*
v. *
*
Michael D. Meador, *
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Appellant. *
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Submitted: January 12, 2010
Filed: August 25, 2010
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Before LOKEN, Chief Judge,1 JOHN R. GIBSON, and WOLLMAN, Circuit Judges.
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WOLLMAN, Circuit Judge.
Dennis Dinwiddie was convicted of four counts related to a drug conspiracy
that resulted in murder. Michael Meador was convicted of three counts related to the
same conspiracy. The district court2 sentenced Dinwiddie and Meador to life
imprisonment. In this consolidated appeal, Dinwiddie challenges his conviction and
sentence; Meador challenges his conviction. We affirm.
I.
Sergio Burgos Gonzales (Burgos) was part of a conspiracy to distribute
marijuana with Dinwiddie and Meador. Burgos shipped marijuana from Texas via
express mail services to Dinwiddie in Tennessee and Meador in Missouri. After the
marijuana was distributed, Burgos visited Dinwiddie and Meador to collect payment.
On January 25, 2006, Burgos shipped approximately fifty pounds of marijuana
to Dinwiddie. Police intercepted the shipment and made a controlled delivery in
Clarksville, Tennessee, while surveilling the residence to which the delivery was
made. Police observed Dinwiddie outside of the residence, holding what appeared to
be a packing slip from the delivery. Police approached him, asking him if he
possessed any weapons or drugs. Dinwiddie said no and consented to a search of his
1
The Honorable James B. Loken stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 31,
2010. He has been succeeded by the Honorable William Jay Riley.
2
The Honorable Catherine D. Perry, Chief Judge, United States District Court
for the Eastern District of Missouri.
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person and vehicle. During the search, police recovered from Dinwiddie’s pants
pocket a packing slip from one of the packages in the shipment that had just been
delivered. When asked about his involvement in the shipment, Dinwiddie stated that
he was a middleman for Burgos. Police confiscated the marijuana, but did not make
any arrests.
Less than a week later, Dinwiddie, Meador, and Burgos met in Tennessee at
which time they concocted a plan wherein Meador would travel to Texas with Burgos
to purchase more marijuana. Dinwiddie provided Meador with $10,000 for the
transaction. During the trip, Burgos expressed anger at Dinwiddie and speculated that
Dinwiddie might have stolen the drugs that were seized as a result of the controlled
delivery. In Texas, Meador gave Burgos the $10,000 to purchase marijuana and
Burgos took the money, promising to do so. Burgos, however, did not return with the
marijuana.
Meador informed Dinwiddie that Burgos had left with the money and failed to
return with the drugs as planned. Meador traveled to Tennessee and was picked up
by Dinwiddie in Memphis. As they drove together to Clarksville, Dinwiddie
expressed anger at Burgos. Meador indicated that he could locate Burgos and agreed
to arrange a future meeting between Dinwiddie and Burgos. After returning to
Missouri, Meador spoke with Burgos and told him that they could continue doing
business without Dinwiddie. In March 2006, Burgos shipped a package of marijuana
to Meador in Missouri. Shortly thereafter, Burgos met Meador to collect his payment.
Looking forward, they agreed that Burgos would personally bring 200 pounds—a
larger than normal amount—of marijuana to Meador in April.
On April 21, 2006, Burgos arrived at Meador’s grandmother’s house in New
Madrid, Missouri, with 200 pounds of marijuana, accompanied by an associate, Raul
Cruz. Meador and Michael Jeremy Hunt, an associate of Meador’s, immediately
began preparing the marijuana for distribution to local customers and began
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distribution that night, collecting $40,000. The plan was for Burgos to return to the
house the following morning to receive payment for the marijuana. Meador called
Dinwiddie to tell him that Burgos was in Missouri. Dinwiddie acquired a .45 caliber
handgun from his girlfriend, Genalle Brown; recruited Lawan James, an old friend,
to accompany him; and proceeded to New Madrid.
When Dinwiddie met Meador in New Madrid, they discussed the February
2006 incident in which Burgos absconded with Dinwiddie’s $10,000. Meador
encouraged Dinwiddie to confront Burgos. Meador and Dinwiddie then drove to the
hotel at which Burgos was staying. Meador cautioned Dinwiddie not to confront
Burgos at the hotel because of the risk that Burgos might escape. Dinwiddie complied
and returned to Meador’s grandmother’s house, where, at Meador’s direction, he
concealed his car behind the house to hide it from Burgos’s sight. At Dinwiddie’s
request, Meador retrieved his grandmother’s .32 caliber handgun and gave it to James.
When Burgos and Cruz approached the house the following morning, Meador
directed Dinwiddie, James, and Hunt to hide so that Burgos would not flee at the sight
of them. Meador and Hunt hid in the bathroom. When Burgos entered the house, he
called for Meador. Dinwiddie confronted Burgos, pistol-whipped him, and forced him
into the bedroom, where Dinwiddie demanded to know where the $10,000 was and
why Burgos had disappeared with the money. Burgos said that he had acted out of
fear, that his cousin Mario had made off with money, and that it could not be returned.
An argument ensued between Dinwiddie and Burgos about the intercepted drug
shipment.
Dinwiddie asked Burgos if he had called him a “bitch,” as Meador had related.
Dinwiddie then shot Burgos once in the groin. Burgos beseeched Dinwiddie to spare
his life. According to James, Dinwiddie replied, “Who’s a bitch now?,” and shot
Burgos again, this time in the head. Dinwiddie then ordered James to shoot Burgos.
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James, using the .32 caliber handgun provided by Meador, shot Burgos once in the
back.
Frightened by the commotion, Meador and Hunt broke out of the bathroom
window and retrieved guns from a neighboring house. Meador acquired a shotgun
and Hunt picked up a carbine. Meador directed Hunt to keep the carbine trained on
Dinwiddie when he exited the house. Meador told Hunt to shoot Dinwiddie if he
made an aggressive move. Dinwiddie and Meador spoke and the guns were put down.
At Dinwiddie’s direction, James and Cruz loaded Burgos’s body into Burgos’s
car. Dinwiddie, James, and Cruz drove to a nearby location and discarded Burgos’s
body in a road-side ditch. Meador and Hunt cleaned up the room in which Burgos had
been murdered, burning bloody linens and Burgos’s and Cruz’s cell phones.
Dinwiddie gave some of Burgos’s marijuana to James and Meador gave some of
Burgos’s marijuana to Hunt. Meador told Hunt to lay low for a while and that they
could resume the marijuana business with Dinwiddie in the future. Dinwiddie and
James discarded the handguns by throwing them out the window while driving back
to Tennessee. During this ride, James asked Dinwiddie about Dinwiddie’s order to
shoot Burgos. According to James, Dinwiddie replied, “Everybody had to play their
part.”
Burgos’s body was found by police shortly after it was discarded. Police
connected Burgos to Dinwiddie based upon a report filed by the Texas Department
of Public Safety regarding the intercepted drug shipment in January. Investigators
located Hunt at his sister’s house in Dyersburg, Tennessee. Hunt, fearful for his life,
spoke candidly to police about the murder and identified Dinwiddie as one of the
perpetrators. Shortly thereafter, Meador learned that Hunt had spoken to police.
Meador then went to police in St. Genevieve, Missouri, to talk about the murder.
Meador was less than candid, telling police that a group of unknown Haitians had
murdered Burgos and denying any personal association with the killers.
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Upon being arrested, James cooperated with investigators and explained what
had happened in New Madrid. He led police to the area in Missouri where he and
Dinwiddie had discarded the handguns used to kill Burgos. After a multi-day search,
police recovered a .45 caliber handgun. Subsequent forensic analysis matched a .45
caliber shell found at the murder scene to the recovered handgun. Police obtained a
search warrant for Dinwiddie’s residence and an arrest warrant for Dinwiddie. At
Dinwiddie’s residence, police recovered a pair of blue jeans with blood stains and an
April 22, 2006, receipt for gas from a truck stop in Missouri.
Dinwiddie, Meador, James, and Cruz, were indicted on a five-count superseding
indictment. The indictment charged Dinwiddie and Meador with: (1) count one,
conspiracy to distribute and possess marijuana in excess of fifty kilograms; (2) count
two, violation of the Travel Act resulting in death; (3) count three, possession of a
firearm in furtherance of a drug trafficking crime resulting in murder. Dinwiddie was
also indicted on a fourth count of being a felon in possession of a firearm.
Dinwiddie moved to suppress the packing slip that police found on his person
in January 2006, arguing that the search of his person had exceeded the scope of his
consent, which he argued extended only to a search for drugs or weapons and not to
a search of his pants pocket. The magistrate judge3 recommended denial of the motion
to suppress. The district court adopted the report and recommendation, finding that
a reasonable person in Dinwiddie’s position would have understood that he was
consenting to a search of his pants pockets.
Dinwiddie and Meador were tried separately. At both trials, numerous
witnesses testified for the government, relating the facts as set forth above.
Dinwiddie’s defense was that the government had not proved its case beyond a
3
The Honorable David D. Noce, United States Magistrate Judge for the Eastern
District of Missouri.
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reasonable doubt. He attempted to shift blame to James and cast doubt on the
consistency of the witnesses’s statements. Meador’s defense was that the government
had not proved beyond a reasonable doubt that he had arranged the murder of Burgos
or intended it to happen, blaming Dinwiddie for the violence. In his closing argument,
Meador emphasized that he was frightened by the shooting of Burgos and suggested
that this did not fit in with the government’s portrait of him as conspiring to kill
Burgos.
The district court allowed testimony concerning certain out-of-court statements
purportedly made by Burgos; James; Genalle Brown; Billy Meador, brother of
Michael Meador; and Maria Alanis, Burgos’s girlfriend. The court ruled that these
statements were made by co-conspirators in the course of and in furtherance of the
drug conspiracy. Over Meador’s objection, the district court curtailed the cross-
examination of James as to his mens rea. Dinwiddie and Meador moved for judgment
of acquittal on the Travel Act violation, alleging that no conspiracy existed when
Dinwiddie crossed state lines en route to kill Burgos. Meador also moved for
judgment of acquittal on the count alleging possession of a firearm in furtherance of
a drug trafficking crime resulting in murder, arguing that James lacked the requisite
mens rea when he shot Burgos with the handgun provided by Meador. The district
court denied the motions, and Dinwiddie and Meador were convicted on the respective
counts against them.
The presentence investigation report (PSR) calculated Dinwiddie’s base offense
level as forty-three, as death had resulted from a violation of 21 U.S.C.
§§ 841(b)(1)(C), 846, and 851. See United States Sentencing Guidelines Manual
(U.S.S.G.) § 2A1.1. Dinwiddie was previously convicted of ten counts of criminal
facilitation and one count of trafficking in a controlled substance. The PSR stated that
Dinwiddie qualified as a career offender, under U.S.S.G. § 4B1.1(b), and an armed
career criminal, under U.S.S.G. § 4B1.4(c)(2). Accordingly, the guideline sentence
was imprisonment for life.
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The PSR calculated Meador’s base offense level as forty-three, as death had
resulted from a violation of 18 U.S.C. § 1952(a)(2). See U.S.S.G. § 2A1.1. Meador
had a prior conviction for driving while intoxicated and a prior conviction for
promoting contraband. At the time of Burgos’s murder, Meador was still on two
separate terms of probation from his prior convictions. Accordingly, the PSR
calculated his criminal history category as III. The resulting guideline sentence was
imprisonment for life.
Stating that it was “a very close question,” the district court overruled
Dinwiddie’s objection that his prior convictions for criminal facilitation did not
qualify as predicate violent offenses under U.S.S.G. § 4B1.1 and 4B1.4. The court
accepted Meador’s argument that the PSR had overstated his criminal history and
reduced his criminal history category to II. The court then sentenced Dinwiddie to
360 months’ imprisonment on count one; life imprisonment on counts two and three,
to be served concurrently with the 360-month sentence for count one; and life
imprisonment on count four, to be served consecutively to the other three terms of
imprisonment. The court sentenced Meador to 240 months’ imprisonment on count
one; life imprisonment on count two, to be served concurrently with the sentence for
count one; and life imprisonment on count three, to be served consecutively to the
terms of imprisonment for counts one and two.
II.
A. Motion to Suppress
Dinwiddie argues that the district court erred in denying his motion to suppress
the packing slip found in his pants pocket after the controlled delivery in January
2006. Dinwiddie claims he suffered prejudice because the packing slip bolstered the
government’s theory that he was involved in a drug conspiracy with Burgos. We
review de novo a denial of a motion to suppress. United States v. Cisneros-Gutierrez,
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598 F.3d 997, 1003 (8th Cir. 2010). We review the district court’s factual findings for
clear error. Id.
Immediately prior to the search, Officer Clinard observed Dinwiddie exit the
residence to which the controlled delivery was made, holding what appeared to be a
packing slip. Clinard asked Dinwiddie if he possessed weapons or drugs. Dinwiddie
said no, whereupon Clinard asked for permission to search Dinwiddie’s person and
automobile. Dinwiddie gave his consent. Clinard testified that he patted Dinwiddie
down and that he did not think Dinwiddie had contraband in his pants pocket.
Nonetheless, Clinard reached into Dinwiddie’s back pants pocket and discovered the
packing slip.
“A consensual search may not exceed the scope of the consent given.” United
States v. Rudolph, 970 F.2d 467, 468 (8th Cir. 1992); see also United States v.
Dichiarinte, 445 F.2d 126, 129 (7th Cir. 1971) (citing Honig v. United States, 208
F.2d 916, 919 (8th Cir. 1953)). The scope of consent for a search is limited to what
a reasonable person would have understood by the exchange between the investigating
officer and the person to be searched. United States v. Siwek, 453 F.3d 1079, 1085
(8th Cir. 2006) (citing Florida v. Jimeno, 500 U.S. 248, 251 (1991)). We have held
that when a person gives a general statement of consent to search his vehicle, the
scope of consent includes the items about which he was specifically questioned. Id.
We have not, however, held that the scope of consent automatically excludes items
about which the defendant was not questioned. Id.
Dinwiddie was observed exiting a house to which a controlled delivery of drugs
had just been made. He was observed carrying what appeared to be a packing slip
from the just completed drug delivery. Police officers approached him and asked him
if he would consent to a search of his person. He agreed. In this context, a reasonable
person would have understood his consent to include his pants pocket and the recently
observed packing slip therein.
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Dinwiddie disagrees, relying upon language in Siwek to argue that the scope
of his consent was limited to the objects about which he was just
questioned—weapons and drugs. At issue in Siwek was whether consent to an
automotive search included “any part of the truck” where the contraband that the
defendant had just been questioned about might be stored. 453 F.3d at 1085. Siwek
did not hold that the defendant’s scope of consent was necessarily limited to only the
items mentioned in the predicate questioning. Id. Rather, Siwek stated that the scope
of consent included a thorough search for those items. Id. Accordingly, Siwek is
inapposite.
In any event, Dinwiddie is not entitled to any relief on this issue because any
error was harmless. The packing slip and the statements that Dinwiddie made after
the search merely supported the existence of a drug conspiracy involving Dinwiddie
and Burgos, the evidence of which was overwhelming.
B. Motions for Judgment of Acquittal
Dinwiddie and Meador argue that the district court erred in denying their
motions for judgment of acquittal. Dinwiddie alleges that the evidence was
insufficient to support his conviction on the Travel Act violation in count two. He
claims that there was insufficient evidence to prove that the interstate travel was in
furtherance of an existing marijuana conspiracy. On the same grounds, Meador
alleges that the evidence was insufficient to support his conviction on the Travel Act
violation in count two. Meador also alleges that there was insufficient evidence to
support his conviction of the drug conspiracy violation in count three. The district
court’s denial of a motion for a judgment of acquittal is reviewed de novo. United
States v. Hodge, 594 F.3d 614, 617 (8th Cir. 2010), cert. denied, 78 U.S.L.W. 3714
(June 7, 2010). We will affirm if the record, viewed most favorably to the
government, contains substantial evidence that supports the jury’s verdict. Id.
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Substantial evidence is evidence sufficient to prove all of the elements of the crime
beyond a reasonable doubt. Id.
Count two of the indictment alleged that Dinwiddie and Meador had engaged
in interstate travel in aid of a racketeering enterprise, in violation of 18 U.S.C.
§§ 1952(a)(2) and 2. The government was required to prove: (1) Dinwiddie and
Meador traveled, or caused and aided and abetted another to travel in interstate
commerce; (2) Dinwiddie and Meador did so with the intent to commit a crime of
violence in furtherance of unlawful activity; (3) Dinwiddie and Meador knowingly
and willfully committed a crime of violence, or caused and aided and abetted another
to do so, in furtherance of the unlawful activity; and (4) the death of Burgos resulted.
1.
Dinwiddie and Meador argue that there were two different drug conspiracies
in this case. They assert that one conspiracy involving Dinwiddie, Burgos, and
Meador existed to distribute marijuana, and that this conspiracy ended when
Dinwiddie was cut out of further transactions in February 2006. They argue that a
second conspiracy began only in April 2006, when they split up Burgos’s marijuana
after Burgos’s death. Dinwiddie and Meador reason that if there was no conspiracy
in existence when Dinwiddie crossed state lines en route to kill Burgos, then no Travel
Act violation could have occurred because the travel would not have been in
furtherance of an active conspiracy.
In determining whether there was a single conspiracy or multiple conspiracies
proved at trial, we look to the totality of the circumstances, including (1) the nature
of the activities, (2) the location of the alleged actions of the conspiracy, (3) the
identity of the conspirators, and (4) the time frame in which the actions took place.
United States v. Smith, 450 F.3d 856, 860-61 (8th Cir. 2006). A single conspiracy
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may exist even if the participants, their activities, and their roles change over time.
Id. at 860.
The evidence presented at trial, viewed in the light most favorable to the
government, was sufficient to prove that Dinwiddie crossed state lines in furtherance
of a single conspiracy to distribute marijuana with Meador. The totality of the
circumstances suggests that Dinwiddie and Meador were engaged in a single
conspiracy to distribute marijuana and that the killing of Burgos was in retaliation for
actions within that same conspiracy. Dinwiddie and Meador were responding to a co-
conspirator’s misappropriation of funds. The actions in question occurred in the
region in which the conspiracy distributed drugs and the killing was done at the family
residence of one of the conspirators. The identity of the conspirators was unchanged;
the principal players remained Dinwiddie, Meador, and Burgos. The time frame was
relatively short; a mere two months had passed between the February 2006 incident
and the April 2006 killing. The fact that Dinwiddie was cut out of the drug
transactions for a brief period does not prove the existence of a different conspiracy.
Individuals may change their roles and activities without creating a new conspiracy.
Id. Accordingly, the district court did not err in rejecting Dinwiddie’s and Meador’s
motions for acquittal on the Travel Act violation.
2.
Meador argues that the district court erred in denying his motion for acquittal
on count three, which alleged that (1) Meador conspired to distribute and possess with
intent to distribute marijuana, (2) Meador knowingly possessed a firearm in
furtherance of that conspiracy, (3) the firearm was used to cause the death of Burgos,
and (4) the killing of Burgos was a murder. Meador admits that he provided a
handgun to James and that James used it to shoot Burgos. Thus, sufficient evidence
was presented to establish the first two elements of this offense, namely, that (1)
Meador conspired to distribute and possess with intent to distribute marijuana, and
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that (2) Meador knowingly possessed the .32 caliber handgun in furtherance of the
conspiracy. The remaining issues are whether there was sufficient evidence to prove
that the handgun was used by James to cause the death of Burgos and that the killing
of Burgos was a murder. We conclude that the evidence was sufficient.
At Meador’s trial, Dr. Michael Zaricor testified about the autopsy that he had
performed on Burgos’s body, stating that he found three bullet wounds. The first
wound was made by a large caliber weapon, with the bullet entering in the left groin
and exiting in the left buttock. The second wound was also made by a large caliber
weapon, this time with the bullet entering through the right ear and traveling along the
scalp towards the rear of the skull. The bullet then created a two-centimeter oval hole
in the skull, forcing two large pieces of bone into the occipital lobe and leaving a
small amount of lead in the brain. The result was hemorrhage in the lateral ventricle
and subarachnoid hemorrhage above the occipital lobe. Dr. Zaricor testified that such
a wound likely rendered Burgos unconscious, but not dead. The third wound was
caused by a smaller caliber weapon, with the bullet entering through the upper back
by the first thoracic vertebra and exiting the front of the torso by the sixth rib. The
bullet traveled through Burgos’s right lung, leaving a hemorrhagic track and a liter of
clotted blood surrounding the lung. Dr. Zaricor testified that the presence of the
hemorrahagic track and the clotted blood indicated that Burgos’s heart was beating at
the time of the third gunshot wound. Dr. Zaricor concluded that the second wound to
the head was the main cause of death, but that it was supplemented by the blood loss
from the third wound to the chest. Thus, there was sufficient evidence to establish that
the .32 caliber handgun used by James and provided by Meador caused the death of
Burgos.
The remaining issue was whether the killing of Burgos was a murder. James
testified that he fired the handgun at what he thought was a corpse. Meador contends
that conviction under § 924(j)(1) requires a specific finding that the user of the firearm
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acted with malice aforethought. He argues that he cannot be convicted of count three
because James lacked the requisite mens rea to commit murder. We disagree.
To convict under § 924(j)(1), the government needs to show that (1) the firearm
was used to cause the death of the victim and that (2) “the killing [wa]s a murder” as
defined by 18 U.S.C. § 1111. Section 1111 defines murder as “the unlawful killing
of a human being with malice aforethought.” Thus, as we have said, a conviction
under § 924(j)(1) requires a finding of malice aforethought. United States v. Allen,
247 F.3d 741, 783 (8th Cir. 2001), vacated on other grounds, 536 U.S. 953 (2002).
Evidence of a subjective intention to kill, however, is not necessary for a showing of
malice aforethought. United States v. Black Elk, 579 F.2d 49, 51 (8th Cir. 1978)
(citing United States v. Cox, 509 F.2d 390, 392 (D.C. Cir. 1974)); see United States
v. Shaw, 701 F.2d 367 (5th. Cir. 1983). Malice aforethought may be demonstrated
objectively by reckless and wanton conduct, deviating grossly from the standard of
care, of such a nature that a jury would be warranted in inferring the defendant’s
awareness of a serious risk of death or serious bodily harm. Black Elk, 579 F.2d at
51; Cox, 509 F.2d at 390.
The evidence presented at trial was that James shot Burgos immediately after
Dinwiddie fired his weapon. The bullet entered Burgos’s upper back, pierced his
lung, and exited his rib cage. Burgos’s heart was beating when James shot him. This
was reckless and wanton conduct, deviating grossly from the standard of care. The
action was of such a nature that the jury was warranted in inferring that James should
have been aware of a serious risk of death or serious bodily harm. Thus, there was
sufficient evidence to find that James shot Burgos with malice aforethought. Because
a reasonable jury could have found that James murdered Burgos, Meador’s argument
fails, even if his interpretation of § 924(j)(1) were correct. Accordingly, the district
court did not err in denying Meador’s motion for judgment of acquittal on count three.
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C. Curtailment of Cross-Examination of James
Meador argues that his right to a fair trial was violated when the district court
curtailed his cross-examination of James. We will not reverse a trial court’s decision
to limit cross-examination unless there has been a clear abuse of discretion and a
showing of prejudice to the defendant. United States v. Willis, 997 F.2d 407, 415 (8th
Cir. 1993).
The testimony at issue concerned whether James intended to murder Burgos.
As discussed above, Meador reasoned that if both he and James lacked the requisite
intent to murder Burgos, there could be no conviction for possession of a firearm in
furtherance of a drug crime resulting in death. The district court curtailed the cross-
examination of James when defense counsel sought to have James opine on whether
he acted with “malice aforethought” or “callous disregard” when he shot Burgos. The
court reasoned that it was inappropriate to have James discuss whether his mental state
met a particular legal standard. The court noted that defense counsel had already
provided evidence about what James believed when he shot Burgos and that James’s
mental state could be argued before the jury in closing arguments. This was a
reasonable ruling by the court and one that did not result in prejudice to Meador.
Accordingly, the court did not clearly abuse its discretion in ruling as it did.
D. Admission of Out-of-Court Statements
Dinwiddie and Meador argue that the district court erred in admitting certain
out-of-court statements. Dinwiddie argues that the district court erred by admitting
out-of-court statements by Billy Meador, Michael Meador’s brother, and Maria
Alanis, Burgos’s girlfriend. Meador argues that the district court erred by admitting
out-of-court statements by James and Genalle Brown, Dinwiddie’s girlfriend. We
review the district court’s admission of evidence for abuse of discretion. United
States v. Chase, 451 F.3d 474, 479 (8th Cir. 2006). We review for clear error the
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district court’s finding that a statement was made in furtherance of a conspiracy.
United States v. Beckman, 222 F.3d 512, 522-23 (8th Cir. 2000).
1. Testimony of Billy Meador and Alanis
Over Dinwiddie’s objection, Billy Meador testified about the drug run that he
had gone on with Burgos and Michael Meador in February 2006. According to Billy,
Burgos said that Dinwiddie had taken twenty-five pounds of marijuana from him and
Burgos expressed displeasure with Dinwiddie. The government argued that the
statement was admissible under Federal Rule of Evidence 801(d)(2)(E) as a statement
by a co-conspirator during the course and in furtherance of the conspiracy.
This statement was properly admissible because it was not hearsay. First,
hearsay is an out-of-court statement introduced to prove the truth of the matter
asserted. Fed. R. Evid. 801(c). The statement was introduced to illuminate the
dispute between Burgos and Dinwiddie; it was not introduced to prove that Dinwiddie
actually stole twenty-five pounds of marijuana from Burgos or that Burgos was
actually unhappy with Dinwiddie. As such, it was not hearsay under Rule 801(c) and
could be admitted on this ground. Second, the statement was made in furtherance of
the conspiracy and was not hearsay under Rule 801(d)(2)(E). Billy and Michael
Meador were traveling on a drug run with Burgos, while carrying the $10,000 and the
handgun given to them by Dinwiddie for this purpose. Burgos’s discussion of his
suspicions about Dinwiddie apprised Billy and Michael Meador about important
current developments within the conspiracy. Thus, the district court did not clearly
err in determining that Burgos’s statement was made in furtherance of the drug
conspiracy and did not abuse its discretion in admitting the testimony.
Similarly, Alanis’s testimony did not contain hearsay. Alanis testified that
Burgos had said that his associates in the drug trade were Meador and Dinwiddie.
Alanis also testified that she had accompanied Burgos on drug runs, tracked shipments
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for Burgos, and collected payments for drugs with Burgos. On at least one of these
trips, Alanis traveled with Burgos to a meeting with Meador and Dinwiddie where
money was exchanged. When Alanis traveled with Burgos on drug runs, she would
register for the hotel rooms when they stayed overnight. Alanis was a co-conspirator
and Burgos’s statements to her were made in furtherance of the conspiracy. As such,
they were not hearsay and properly admissible under Rule 801(d)(2)(E).
Accordingly, the district court neither clearly erred in determining that Burgos’s
statements to Billy Meador and Alanis were made in furtherance of the conspiracy,
nor did it abuse its discretion when admitting these statements. In any event, any error
in admitting the statements would have been harmless. There was overwhelming
evidence at trial of the dispute between Burgos and Dinwiddie and that Burgos had
dealt drugs with Dinwiddie and Meador. Dinwiddie has not shown that inclusion of
these statements caused him prejudice.4
4
Dinwiddie makes a cursory argument that admission of testimony relating
Burgos’s statements violated the Confrontation Clause of the Sixth Amendment.
Statements made by co-conspirators in the furtherance of a conspiracy are generally
admissible because they are nontestimonial and accordingly the Confrontation Clause
does not prohibit their admission. Crawford v. Washington, 541 U.S. 36, 68 (2007);
United States v. Avila Vargas, 570 F.3d 1004, 1009 (8th Cir. 2009). The statements
by Burgos to Billy Meador and Alanis were informal out-of-court conversations and
nontestimonial in nature. Moreover, Burgos was unavailable because Dinwiddie had
murdered him.
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2. Testimony of James and Brown
Meador argues that the district court erred in admitting statements by James and
Brown concerning statements that Dinwiddie had made about his disagreement with
Burgos. Meador argues that James and Brown were not members of the drug
conspiracy, and thus their testimony about Dinwiddie’s statements was not admissible
under Rule 801(d)(2)(E).
Meador’s argument is based upon the mistaken impression that Rule
801(d)(2)(E) requires that the testifying witness be a co-conspirator. Under Rule
801(d)(2)(E), the relevant inquiry is (1) whether the declarant and the defendant were
members of the conspiracy and (2) whether the declarant made the statements in the
course of and in furtherance of the conspiracy. United States v. Frazier, 280 F.3d 835,
848 (8th Cir. 2002); see also United States v. Mahasin, 362 F.3d 1071, 1084 (8th Cir.
2004). The declarant is the person who purportedly made the statement. Fed. R.
Evid. 801(b). For the purposes of Rule 801(d)(2)(E), it is irrelevant whether the
witness was a member of the conspiracy or acting in furtherance of the conspiracy.
Frazier, 280 F.3d at 848; see United States v. Manfre, 368 F.3d 832, 837 (8th Cir.
2004) (“The statement need not be made by one conspirator to another conspirator.”).
Rule 801(d)(2)(E)’s inquiry is satisfied because (1) Meador, the defendant, and
Dinwiddie, the declarant, were members of a drug distribution conspiracy; and (2) the
statements were made in the course of and in furtherance of the conspiracy.
Dinwiddie made the statements to James during the trip to Missouri to confront
Burgos about the lost $10,000. As discussed above, this trip was made in furtherance
of the conspiracy. James was supporting Dinwiddie in this enforcement action.
Dinwiddie made these statements to James to apprise him of the situation as they
traveled to Missouri to confront Burgos about the missing money. Likewise,
Dinwiddie made statements to Brown about his disagreement with Burgos and
acquired from her the .45 caliber handgun used to murder Burgos. Dinwiddie’s
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statements to Brown explained his rationale for proceeding to Missouri and his need
for a firearm. Thus, they were made in furtherance of the conspiracy and properly
admitted under Rule 801(d)(2)(E). Even if they were admitted in error, any error
would have been harmless given the overwhelming evidence of the conspiracy
between Dinwiddie and Meador and the dispute with Burgos.5
E. Conviction and Sentencing Under 18 U.S.C. § 924
Dinwiddie and Meador argue that the district court erred in sentencing them on
count three under 18 U.S.C. § 924. This claim was not raised below. Accordingly,
we review it for plain error. United States v. Marcus, 130 S. Ct. 2159, 2164 (2010);
Hodge, 594 F.3d at 619.
Section 924(c)(1) provides for additional mandatory minimum sentences for use
of firearms in drug trafficking crimes. Under § 924(c)(1)(A)(i)-(iii), possession of a
firearm mandates an additional five-year sentence; brandishing a firearm mandates an
additional seven-year sentence; and discharging a firearm mandates an additional ten-
year sentence. According to § 924(c)(1)(D), all such additional sentences are to run
consecutively to the sentence for the underlying drug trafficking crime. Section 924(j)
provides the sentences when a death results from a violation of § 924(c). If the killing
5
Meador argues that the district court erred by failing to follow the procedure
outlined in United States v. Bell for admission of out-of-court statements by co-
conspirators. 573 F.2d 1040, 1044 (8th Cir. 1978). A trial court, however, is not
required to make a separate, explicit Bell ruling if it substantially complies with Bell’s
procedures. United States v. Johnson, 535 F.3d 892, 897 (8th Cir. 2008). Meador
failed to specifically request a Bell ruling, but moved for acquittal on the grounds of
the sufficiency of the evidence. The district court denied this motion. Accordingly,
we consider the district court to have substantially complied with Bell and thus we
review for plain error. Id. As discussed above, the admission of the statements was
not clearly erroneous. Contrary to Meador’s assertion, no miscarriage of justice
occurred.
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is a murder, then the sentence shall be death or imprisonment for any term of years or
for life. 18 U.S.C. § 924(j)(1).
Count three of the superseding indictment alleged that Dinwiddie and Meador
knowingly possessed a firearm in furtherance of a drug trafficking crime, namely,
conspiracy to distribute and possess with intent to distribute marijuana. The
indictment alleged that in the course of committing that crime, Dinwiddie and Meador
caused the death of Burgos through the use of a firearm. The indictment further
alleged that the killing of Burgos occurred “with malice aforethought [and] was a
murder.” The indictment concluded that Dinwiddie and Meador had acted “[i]n
violation of Title 18, United States Code, Section 924(c)(1), and punishable under
Title 18, United States Code, Section 924(j)(1).”
Dinwiddie and Meador make two arguments concerning the interplay of
§ 924(c) and § 924(j). First, they argue that the indictment was insufficient because
§ 924(c) and § 924(j) “charge two separate offenses with two distinct penalty
provisions.” Accordingly, they allege a violation of their Fifth Amendment right to
be tried and sentenced only for the crime for which they were indicted. Dinwiddie
and Meador did not raise this issue before trial, and it is therefore waived. United
States v. Davis, 103 F.3d 660, 674 (8th Cir. 1996). Even were it not waived, this
claim would fail because the indictment was sufficient to put Dinwiddie and Meador
on notice as to the offense charged. See United States v. Sewell, 513 F.3d 820, 821
(8th Cir. 2008).
Second, Dinwiddie and Meador argue that the district court erred in sentencing
them to a consecutive life sentence under § 924(j). They argue that the consecutive
sentence provision of § 924(c) does not apply to sentences under § 924(j). We have
previously rejected this interpretation of § 924(j). Allen, 247 F.3d at 769. As we
noted in Allen, Dinwiddie and Meador’s interpretation “of § 924(j) would lead to the
odd result that a defendant convicted under § 924(c) is subject to an additional
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consecutive sentence only in situations that do not result in a death caused by use of
the firearm.” Id.; see also United States v. Battle, 289 F.3d 661, 669 (10th Cir. 2002).
Accordingly, any error in sentencing was neither clear nor obvious and thus would not
warrant relief on review for plain error. Hodge, 594 F.3d at 619.6
F. Sentencing Under the Armed Career Criminal Act
Dinwiddie argues that the district court improperly sentenced him as an armed
career criminal under 18 U.S.C. § 924(e). He claims that his prior convictions for
criminal facilitation of robbery and kidnapping, in violation of Kentucky Revised
Statutes §§ 506.080, 509.040, and 515.020, are not violent felonies within the
meaning of 18 U.S.C. § 922(e)(1).
We need not resolve this issue, for any error in sentencing on count four under
U.S.S.G. § 4B1.4 would not affect the life sentence on count two and the consecutive
life sentence on count three. This is equally true whether or not Dinwiddie qualified
as a career offender under U.S.S.G. § 4B1.1. The guideline range was life
imprisonment, regardless of his criminal history category. Any error in sentencing
based upon the Armed Career Criminal Act or career offender provisions was
therefore harmless. See Clay, 579 F.3d at 933 (applying harmless error analysis to
sentencing error when it would not affect life sentence properly imposed on other
count of conviction).
6
Dinwiddie and Meador cite one of our recent cases involving conviction under
§ 924(o) and sentencing under § 924(c) that is arguably inconsistent with our analysis
in Allen. See United States v. Clay, 579 F.3d 919, 933 (8th Cir. 2009), cert. denied,
130 S. Ct. 3353 (2010). Clay did not, nor could it, overrule Allen, and thus we see no
need to address the matter further.
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III.
The judgment is affirmed.
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