United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-1266
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Anthony Norris Smith, *
*
Defendant - Appellant. *
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Submitted: October 22, 2010
Filed: January 31, 2011
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Before LOKEN, SMITH, and COLLOTON, Circuit Judges.
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LOKEN, Circuit Judge.
A jury convicted Anthony Smith of conspiring to distribute fifty grams or more
of cocaine base (“crack”) in violation of 21 U.S.C. §§ 841 and 846. Based on this
drug quantity and his prior felony drug convictions, the district court1 imposed the
mandatory minimum sentence of life in prison. See 21 U.S.C. § 841(b)(1)(A) (2006).
Smith appealed his conviction and sentence, arguing (i) the evidence was insufficient
to convict him of conspiracy to distribute crack; (ii) the district court violated the
Sixth Amendment by refusing his request to subpoena a defense witness and by
1
The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa.
admitting a forensic chemist’s lab report; and (iii) the life sentence was grossly
disproportionate and therefore violated the Eighth Amendment. After the parties
submitted briefs on these issues, Congress enacted the Fair Sentencing Act of 2010,
which increased the amount of crack necessary to trigger a mandatory life sentence
from 50 to 280 grams. Pub. L. No. 111-220, § 2(a)(1), 124 Stat. 2372 (Aug. 3, 2010),
codified at 21 U.S.C. § 841(b)(1)(A)(iii). At Smith’s request, the parties submitted
supplemental briefs addressing his additional contention that this Act should apply
to the mandatory life sentence in his pending case. We affirm.
I. Sufficiency of the Evidence
Smith argues the evidence was insufficient to support the jury’s verdict that he
conspired to distribute crack cocaine. We review the sufficiency of the evidence de
novo, viewing the evidence in the light most favorable to the verdict and accepting
all reasonable inferences that support the verdict. United States v. Hernandez, 569
F.3d 893, 896 (8th Cir. 2009), cert. denied, 130 S. Ct. 1308 (2010).
At trial, Iowa City detective and Drug Enforcement Agency task-force member
Jerry Blomgren testified that Jeffery Pickett was arrested on January 17, 2008, after
a series of controlled buys by a confidential informant. Pickett agreed to participate
in a controlled buy from one of his crack sources, Anthony Smith, also known as
“Red.” Pickett placed a call on his cell phone to the number listed for “Redy” and
arranged to purchase crack. Pickett was searched, outfitted with a hidden transmitter,
provided $200 in serialized bills, and driven to an apartment building in Coralville,
Iowa. Special Agent Charles Pettrone accompanied Pickett to the door of apartment
11 and watched as Pickett entered the apartment and exited a minute later with
baggies containing five rocks weighing 3.5 grams that were later tested and found to
contain three grams of crack. A subsequent warrant search of apartment 11
uncovered evidence that the apartment was occupied by Smith and by Patrick
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Williams, as well as razor blades, sandwich bags commonly used to package drugs,
fifteen cell phones, $1200 in cash, a pellet gun, and three sets of brass knuckles.
Pickett testified that Smith was the person in apartment 11 who sold the crack
on January 17, that Smith introduced Pickett to selling crack, and that on six
occasions Pickett, Smith, and Williams pooled their money and purchased up to 4.5
ounces of crack from drug dealers in Chicago. Witness Catherine Lair, who lived
next door to apartment 11, identified Smith as her neighbor, confirmed he was known
as Red, and testified she obtained a cell phone for Smith with the number called by
Pickett to arrange the January 17 sale. Patrick Williams testified that he and Smith
were in the business of selling crack, that Smith dealt some fifteen ounces per month,
and that he (Williams) initially lied about Smith’s involvement because he feared
reprisal from a Chicago gang. Benjamin Boyd identified Smith as Red, estimated that
he (Boyd) purchased one hundred grams of crack from Smith, and once saw Smith
with a rock of crack “larger than a tennis ball.” Daniel Davis testified that Smith
fronted several “eight-balls” of crack (approximately 3.5 grams each) and later sold
Davis about thirty grams of crack in a series of transactions. Records from the cell
phone registered to Lair showed sixty-seven outgoing calls to Williams, eighteen to
Pickett, twelve to Boyd, nine to Davis, and over 1000 to other persons during a
twenty-one day period in late 2007 and early 2008.
Smith argues this evidence proved only his “mere presence” at drug deals or
his “physical proximity” to contraband. But if credited by the jury, the evidence
showed far more than one sale of crack at Smith’s residence. Numerous witnesses
testified to his substantial involvement in county-wide drug dealing. We have
repeatedly upheld jury verdicts based solely on the testimony of cooperating
witnesses. See, e.g., United States v. Buckley, 525 F.3d 629, 632-33 (8th Cir.), cert.
denied, 129 S. Ct. 475 (2008). Here, cell phone records tended to corroborate the
testimony of drug trafficking, particularly the sale to Pickett on January 17. The
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evidence was more than sufficient to support the jury’s finding that Smith participated
in a conspiracy to distribute far more than fifty grams of crack cocaine.
II. Sixth Amendment Issues
A. Denial of the Right to Compulsory Process. On the morning of the third
and last day of trial, Smith requested that a subpoena issue to compel the attendance
of James Robinson, who worked at a Knox County jail located approximately forty-
five miles from the courthouse. See Fed. R. Crim. P. 17(b). Defense counsel
explained that Robinson would testify that Smith and Patrick Williams were friendly
while together in the jail, rebutting Williams’s testimony that he lied about Smith’s
role in the conspiracy because he feared Smith. Counsel conceded that Robinson
only observed the relationship between Williams and Smith prior to Williams
agreeing to cooperate with the government. The district court denied the request “as
untimely, but more importantly as cumulative of other testimony and probably not
relevant or at best marginally relevant.” On appeal, Smith argues the court abused
its discretion by depriving him of the benefit of testimony that was relevant to the
credibility of government witness Williams.
The Sixth Amendment grants a defendant the right “to have compulsory
process for obtaining witnesses in his favor.” However, the right is not absolute.
Taylor v. Illinois, 484 U.S. 400, 414-15 (1988). To prevail on a claim that evidence
was improperly excluded, a defendant must show that the excluded testimony “would
have been both material and favorable to his defense.” United States v. Turning Bear,
357 F.3d 730, 733 (8th Cir. 2004). When reviewing a district court’s refusal to
subpoena a witness for the defense, we apply this standard, considering both the
timeliness of the request and the importance of the testimony to the defendant’s case.
See United States v. Sparkman, 500 F.3d 678, 682 (8th Cir. 2007).
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In this case, we agree with the district court that Robinson’s proffered
testimony would not have been materially favorable to Smith’s defense because it
would not have impeached Williams’s testimony that he feared Smith after agreeing
to cooperate with the government. Testimony that Smith and Williams were friendly
before Williams agreed to cooperate would have been cumulative, as other witnesses
had testified the two lived together, were close friends, and held themselves out as
cousins. Compare United States v. Ladoucer, 573 F.3d 628, 635 (8th Cir. 2009), cert.
denied, 130 S. Ct. 1544 (2010). Moreover, the request was more untimely than the
eve-of-trial request that was denied based on the “public interests in the efficient
administration of justice” in Sparkman, 500 F.3d at 683. There was no error.
B. Denial of the Right to Confront Adverse Witnesses. Smith argues that
the district court’s admission of a forensic chemist’s testimonial lab report that the
five rocks purchased by Pickett contained three grams of crack violated Smith’s Sixth
Amendment right to confront adverse witnesses as construed in Melendez-Diaz v.
Massachusetts, 129 S. Ct. 2527 (2009). However, at trial, Smith stipulated to the
admission of the report. A stipulation “is evidence introduced by both of the parties,”
so neither may “complain on appeal that the evidence was erroneously admitted.”
United States v. Hawkins, 215 F.3d 858, 860 (8th Cir.), cert. denied, 531 U.S. 972
(2000), quoting Ohler v. United States, 529 U.S. 753, 755 (2000).
III. Sentencing Issues.
A. Retroactivity of the Fair Sentencing Act. Smith argues that the Fair
Sentencing Act of 2010 (“FSA”) should apply to cases pending on appeal when the
statute was enacted. The FSA increased the quantity of crack needed to trigger a
mandatory life sentence under 21 U.S.C. § 841(b)(1)(A)(iii) from 50 to 280 grams.
It is unclear whether this change would affect Smith’s sentence. But in any event, we
have previously rejected the contention, concluding, albeit in rather summary fashion,
that “the ‘general savings statute,’ 1 U.S.C. § 109, requires us to apply the penalties
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in place at the time the crime was committed.” United States v. Brewer, 624 F.3d
900, 909-10 n.7 (8th Cir. 2010); see United States v. Brown, --- Fed. App’x. ---, 2010
WL 3958760, at *1 (8th Cir. Oct. 12, 2010) (non-binding unpublished opinion). We
agree with those decisions.2
At common law, the repeal of a criminal statute or its reenactment with reduced
penalties abated a prosecution that had not reached final disposition in the highest
court authorized to review the conviction and sentence. See Warden, Lewisburg
Penitentiary v. Marrero, 417 U.S. 653, 660 (1974). To avoid such abatements, which
were often inadvertent, Congress enacted a general savings statute, 1 U.S.C. § 109:
The repeal of any statute shall not have the effect to release or
extinguish any penalty, forfeiture, or liability incurred under such
statute, unless the repealing Act shall so expressly provide, and such
statute shall be treated as still remaining in force for the purpose of
sustaining any proper action or prosecution for the enforcement of such
penalty, forfeiture, or liability.
This statute applies to statutory amendments as well as to repeals and reenactments.
Martin v. United States, 989 F.2d 271, 274 (8th Cir.), cert. denied, 510 U.S. 979
(1993). Thus, the determinative questions are whether the FSA amended a “penalty”
and, if so, whether the statute expressly provided that it applies to pending cases.
2
To our knowledge, at least seven other circuits have reached the same
conclusion. See United States v. Reed, --- F.3d ---, 2010 WL 5176818, at *4 (10th
Cir. Dec. 22, 2010); United States v. Patillo, --- F.3d ---, 2010 WL 5018228, at *5
(3d. Cir. Dec. 9, 2010); United States v. Wilson, --- Fed. App’x. ---, 2010 WL
4561381, at *2 (4th Cir. Nov. 12, 2010); United States v. Glover, --- Fed. App’x. —,
2010 WL 4250060, at *2 (2d Cir. Oct. 27, 2010); United States v. Bell, 624 F.3d 803,
814-15 (7th Cir. 2010); United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir.
2010); United States v. Carradine, 621 F.3d 575, 580 (6th Cir. 2010).
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Smith argues that the FSA did not release or extinguish a “penalty.” Rather,
it changed the class of drug offenders who are subject to the penalty of life in prison.
We squarely rejected this argument in Martin, concluding that “[i]t is simply an
exercise in semantics to suggest that a change in [the class of persons subject to a
penalty] does not effectively extinguish liability or punishment.” 989 F.2d at 275 n.4.
Alternatively, invoking a narrow exception to the general savings statute, Smith
argues that § 109 does not prevent the application of the FSA to his case because a
general savings statute “does not ordinarily preserve discarded remedies or
procedures.” Marrero, 417 U.S. at 661. The cases cited by the Court in Marrero bear
no resemblance to the issue before us. In applying this dictum to the question
whether a statute amending a section of the criminal code merely “discarded remedies
or procedures,” we agree with the Fifth Circuit that the question is whether Congress
was “making a procedural change or reassessing the substance of criminal liability
or punishment.” United States v. Blue Sea Line, 553 F.2d 445, 449 (5th Cir. 1977).
Here, we agree with the Seventh Circuit that § 109 applies because “the FSA
expressly amended the punishment portion of 21 U.S.C. § 841. No procedures or
remedies were altered.” Bell, 624 F.3d at 815. The FSA is a paradigmatic example
of a statute intended to ameliorate substantive criminal penalties. Its preamble
expressly stated an intent to “restore fairness to Federal cocaine sentencing.” Pub.
L. No. 111-220, 124 Stat. 2372. Congressional leaders lauding the passage of the
FSA stated that it was designed to correct “unjustified disparity” in federal sentencing
provisions that previously “placed far harsher penalties on crack users and dealers
than on the users and dealers of powder cocaine.” 156 Cong. Rec. E1665-05, 1666
(daily ed. Sept. 16, 2010) (statement of Rep. Bob Inglis).
If it amended a criminal penalty, as we have concluded, Smith further argues
that, while the FSA contains no express provision applying its reduced penalties to
pending cases, we should imply such a provision from the congressional intent to
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replace the “draconian” provisions of prior law. But the question is not whether
Congress intended to “release or extinguish” the prior penalties. That is always the
case. The question is whether Congress intended to exempt the repealing act from
the general savings statute. Section 109 provides that such an exemption must be
“expressly provide[d]” in the repealing statute. Even if we may disregard § 109’s
clear requirement that an exemption be “expressly” declared in the repealing act,
which we doubt, Smith fails to call our attention to any language in the FSA from
which an intent to exempt could be inferred. See Blue Sea Line, 553 F.2d at 449
(“[o]nly the narrowest of spaces is left for argument that the repealer implies that it
is applicable to pending cases”). As there are no serious constitutional issues raised
by the question whether § 109 applies to the FSA, Smith’s reliance on the canon of
constitutional avoidance falls far short of clearing this formidable hurdle.
B. Cruel and Unusual Punishment. Finally, Smith argues that the sentence
of life in prison mandated by former 21 U.S.C. § 841(b)(1)(A) violated the Eighth
Amendment’s prohibition against cruel and unusual punishment. We have repeatedly
rejected this contention. See United States v. Scott, 610 F.3d 1009, 1018 (8th Cir.
2010), and cases cited, cert. denied, 2011 WL 55768 (U.S. Jan. 10, 2011).
The judgment of the district court is affirmed.
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