United States v. Marvin Herron

No. 95-3878

United States of America, *
*
Appellee, *
*
v. *
*
Marvin Herron, also known as *
Spook, *
*
Appellant. *

No. 95-4146

United States of America, *
*
Appellee, * Appeals from the United States
* District Court for the
v. * Western District of Missouri.
*
Robert L. McKinney, also *
known as Dusharme Taylor, *
also known as Clifton Paige, *
*
Appellant. *

No. 95-4150

United States of America, *
*
Appellee, *
*
v. *
*
Charles Bell Estell, also *
known as China, *
*
Appellant. *
 No. 95-4155

United States of America, *
*
Appellee, *
v. *
*
Danny K. Jarrett, also known *
as Dough-Boy, *
*
Appellant. *

No. 95-4157

United States of America, *
*
Appellee, *
v. *
*
Rosalind D. Glover, *
*
Appellant. *

No. 95-4173

United States of America, *
*
Appellee, *
*
v. *
*
Gene A. Nelson, also known *
as Geno, *
*
Appellant. *

Submitted: May 15, 1996

Filed: October 1, 1996

Before BOWMAN, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
HEANEY, Circuit Judge.

Appellants Marvin Herron, Danny K. Jarrett, Rosalind D. Glover, Gene
A. Nelson, Robert L. McKinney, and Charles Bell Estell challenge their
convictions and sentences stemming from their participation in a drug-
trafficking operation. Specifically, Herron and Jarrett argue that their
convictions for conspiracy to launder money in violation of 18 U.S.C. §
1956 (1994) are not supported by the evidence. In light of Bailey v.
United States, 116 S. Ct. 501 (1995), Herron also challenges the
sufficiency of the evidence for his conviction under 18 U.S.C. § 924(c)
(1994). Additionally, all six of the appellants argue that their sentences
for their cocaine base-related convictions1 cannot stand because of the
100:1 sentencing ratio between offenses involving cocaine base and those
involving cocaine powder. We affirm in part and reverse in part.

I.

We address first Herron's and Jarrett's challenge to the sufficiency
of the evidence for their money-laundering convictions. In reviewing the
guilty verdicts, we view the evidence in the light most favorable to the
government, giving the government the benefit of all reasonable inferences.
United States v. Termini, 992 F.2d 879, 881 (8th Cir. 1993). We must
affirm the appellants' convictions if we conclude that a reasonable jury
could have found every element of the offense beyond a reasonable doubt.
United States v. Simms, 18 F.3d 588, 592 (8th Cir. 1994).

1
All but Glover were convicted of conspiracy to distribute
cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 846 (1994).
Herron, Jarrett, and Nelson were also convicted of multiple counts
of distribution of cocaine base and Herron, Jarrett, and Glover of
possession of cocaine base with intent to distribute in violation
of 21 U.S.C. § 841(a)(1) (1994).

3
 For a money-laundering conviction, the government has the burden of
proving beyond a reasonable doubt that an individual knowingly conducted
a financial transaction involving the proceeds from drug distribution and
that they did so either (1) with the intent to promote their drug business,
18 U.S.C. § 1956(a)(1)(A)(i); or (2) with knowledge that the transaction
was designed to disguise the nature or source of those proceeds, 18 U.S.C.
§ 1956(a)(1)(B)(i). Although the appellants were indicted under both
sections of the money-laundering statute, the district court instructed the
jury only as to the concealment or disguise prong.2 Thus, we consider the
sufficiency of the evidence for that offense only.

At trial, several government witnesses testified that Herron and
Jarrett wire transferred money to the Chicago area from a store in
Springfield, Missouri. Records from Western Union Financial Services
confirmed that Herron made transfers totalling over $5,000 and that Jarrett
transferred over $7,000. There was also evidence

2
The jury was instructed, in relevant part, as follows:

One, the defendant conducted a financial
transaction, that is wire transfer of funds or
delivery of funds, which in any way or degree
affected interstate or foreign commerce;

Two, the defendant conducted the financial
transaction with money that involved the proceeds
of unlawful distribution of cocaine base or
"crack;"

Three, at the time the defendant conducted the
financial transaction, the defendant knew the money
represented the proceeds of some form of unlawful
activity; and,

Four, the defendant conducted the financial
transaction knowing that the transaction was
designed in whole or in part to conceal or disguise
the nature, location, source, ownership or control
of the proceeds of unlawful distribution of cocaine
base or "crack."

J. A. at 23.

4
that Herron and Jarrett made substantial amounts of money through their
distribution of "crack" cocaine in the Springfield area and that they had
no legitimate source of income. Moreover, an employee of the Criminal
Investigation Division of the Internal Revenue Service testified that wire
transfers are a method used by drug traffickers to conceal the nature,
source, and location of their drug proceeds. Specifically, persons can
conceal wire transfers through the use of false names. A Western Union
employee further explained that persons sending money through Western Union
do not have to show identification if they are sending less than $10,000
at a time and that they may waive identification of the receiver.

We review the sufficiency of each element of the offense in turn.
There is no question that appellants wire transferred money through Western
Union and that these transfers constitute "financial transactions" as
defined by the statute. 18 U.S.C. § 1956(c)(4). The evidence also
supports a finding that the money involved in the transactions represented
proceeds from drug trafficking. To satisfy this element, the government
need not trace proceeds from particular drug sales to the wire transfers.
United States v. Blackmun, 904 F.2d 1250, 1256 (8th Cir. 1990). From the
evidence substantiating the appellants' drug-trafficking activity and their
lack of any legitimate source of income, it was reasonable for the jury to
infer that the wired money constituted drug proceeds. Id. What is lacking
in this record is any evidence that the appellants' transactions were
designed in whole or in part to conceal or disguise their drug proceeds.
As demonstrated by the appellants' handwriting samples, they used their own
names when sending the money to Chicago, and there is no evidence to
suggest that the money was received by any persons other than those named

5
in the Western Union records.3 Without any evidence of concealment, it is
impossible to find that appellants knew of such a design.

As we stated in United States v. Rockelman, the money- laundering
statute should not be used as a "money spending statute." 49 F.3d 418, 422
(citing United States v. Sanders, 928 F.2d 940, 946 (10th Cir.), cert.
denied, 502 U.S. 845 (1991)). In other words, the mere fact that Herron
and Jarrett used wire transfers to send money to Chicago cannot by itself
satisfy the concealment element of the offense. Such an interpretation of
the statute would render this separate element repetitive and meaningless.
Because there is no evidence in the record that the appellants made any
efforts to disguise the drug proceeds, we reverse their convictions for
money laundering.

II.

Herron also argues on appeal that, in light of the Supreme Court's
decision in Bailey v. United States, 116 S. Ct. 501 (1995), his conviction
for using a firearm "during and in relation to" a

3
This fact distinguishes this case from Blackmun in which
there was evidence that the defendant used aliases when wiring
money to Los Angeles. 904 F.2d at 1253. In all of our cases
affirming convictions under 18 U.S.C. § 1956(a)(1)(B)(i), we have
required evidence of concealment. See e.g., United States v.
Peery, 977 F.2d 1230, 1234 (8th Cir. 1992) (money sent via three
separate wire transfers), cert. denied, 507 U.S. 946 (1993); United
States v. Posters 'N' Things, Ltd., 969 F.2d 652, 661 (8th Cir.
1992) (commingling of proceeds from drug paraphernalia sales with
legitimate business receipts), aff'd 511 U.S. 513 (1994); United
States v. Long, 977 F.2d 1264, 1270 (8th Cir. 1992) ("transactions
permitted . . . drug dealers to make drug money appear to be money
earned through work in a legitimate job").

6
drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1), cannot
stand.4 We agree.

On August 25, 1993, Corporal Bristow of the Springfield Police
Department stopped an automobile driven by Herron for a traffic violation.
There was another person in the passenger side of the vehicle. Because
Bristow thought Herron was acting "nervous," he made Herron get out of the
car and searched him for weapons. He found none. After learning from the
dispatcher that the vehicle would "be a good check for drugs and a gun,"
Bristow searched the automobile and found an automatic handgun between the
seat and the console next to the driver's seat. The weapon had a magazine
in it with seven rounds and a round in the chamber ready to be fired. The
weapon was stuffed down approximately two inches and was not visible from
the outside of the automobile.

At trial, the district court instructed the jury that it could find
Herron guilty of the 924(c) count if it found that he used the weapon
during and in relation to a drug trafficking crime.5 J. A. at 19. The
court defined "use" as "having a firearm available to aid in the commission
of the crime . . . ." Id. Herron did not object to the instruction as
this definition of "use" was considered correct under Eighth Circuit law
at the time of his trial. Prior to this appeal, however, the Supreme Court
defined "use" under section 924(c) as "active employment of the firearm by
the defendant, a use that makes the firearm an operative factor in relation
to the predicate offense." Bailey, 116 S. Ct. at 505.

4
Because Herron raised this challenge in his initial appeal
brief, we distinguish this case from United States v. McKinney, 79
F.3d 105, 108-09 (8th Cir. 1996), in which this court held that the
defendant had waived his claim under Bailey. See also, United
States v. Webster, 84 F.3d 1056, 1065 n.6. (8th Cir. 1996).
5
Although Herron was charged under both the "use" and "carry"
prongs of the statute, J. A. at 9-10, the court only instructed the
jury as to use. J. A. at 19.

7
The Court stated further that "liability attaches only to cases of actual
use, not intended use, as when an offender places a firearm with the intent
to use it later, if necessary." Id. at 507.

Because Herron did not object to the jury instruction, we may reverse
his conviction only if the district court committed plain error. Fed. R.
Crim. P. 52(b). We first must determine whether the district court's error
was "plain" and whether it "affected the defendant's substantial rights."
United States v. Olano, 507 U.S. 725, 732 (1993). Even if those conditions
are met, we exercise our discretion to reverse only where the error
"seriously affect[ed] the fairness, integrity or public reputation of
judicial proceedings." Id. at 736.

As in United States v. Webster, 84 F.3d 1056, 1067 (8th Cir. 1996),
we apply the law applicable at the time of this appeal and hold that the
district court's error was plain in light of Bailey. Id. at 1067. As the
government concedes, the court's definition of "use" does not comport with
Bailey's "active-employment" definition. Herron also has established that
the error affected the outcome of the district court proceedings because
the instruction permitted the jury to convict Herron "even though it might
not have found the factual predicate required by Bailey." Id. Finally,
because it is unclear whether a properly instructed jury would have found
Herron guilty of violating section 924(c)(1), failure to correct the
district court's error could result in a "miscarriage of justice" and would
"seriously affect the fairness, integrity, or public reputation of judicial
proceedings." Id. (quoting Olano, 507 U.S. at 736). We thus exercise our
discretion under Rule 52(b) and reverse Herron's conviction. Because we

8
reverse for trial error, we remand for a new trial with proper jury
instructions on the 924(c) charge.6 See id.

III.

All six appellants challenge the sentences imposed for their cocaine
base-related crimes, based on the 100:1 sentencing ratio between cocaine
base and powder cocaine.7 Specifically, the appellants raise two separate
arguments: (1) because cocaine and cocaine base are the same drug, the
statute and the sentencing guidelines are ambiguous and the district court
should have applied the rule of lenity to impose the lesser penalty
provided for cocaine offenses, and (2) the district court erred in not
granting the appellants a downward departure under U.S.S.G. § 5K2.0 because
the sentencing disparity presents a mitigating circumstance not adequately
taken into consideration by the guidelines. Appellant McKinney
additionally argues that the guidelines violate his Fifth Amendment right
to equal protection because there is no rational basis for the disparate
sentences for cocaine and cocaine base.

At their sentencing hearings, the appellants presented the expert
testimony of Dr. James Woodford.8 Dr. Woodford testified that the terms
"cocaine" and "cocaine base" are synonymous:

6
On remand, the government may proceed under either the "use"
or the "carry" prong of the statute, or both, as consistent with
the original indictment. Herron may raise any appropriate defenses
at that time.
7
The substantive statute under which the appellants were
convicted imposes a ten-year mandatory minimum for either five
kilograms of cocaine or 50 grams of a mixture or substance
containing cocaine base. 21 U.S.C. § 841(b)(1)(A)(ii)(II), (iii).
The guidelines similarly impose the 100:1 ratio in severity of
sentences for offenses involving cocaine base versus powder
cocaine. U.S.S.G. § 2D1.1(c).
8
Dr. Woodford testified at Herron's sentencing hearing. The
transcript of his testimony was then incorporated into each of the
sentencing hearings of the other appellants.

9
Cocaine base is cocaine before it is mixed with any other substance.
Herron Sentencing Tr. at 22. Moreover, Dr. Woodford testified that crack
cocaine, the substance to which Congress intended the stiffer penalty to
apply was a potent, deadly drug from Jamaica--much more deadly than cocaine
or cocaine base. Id. at 24-26. He contended that crack cocaine, as it was
known in the 1980s, no longer exists. Id. at 23.

To further buttress their arguments before the district court, the
appellants pointed to the United States Sentencing Commission's proposed
amendment to the guidelines, submitted to Congress in May 1995, which
recommended elimination of the distinction between powder and crack cocaine
in sentencing. Submission Notice, 60 Fed. Reg. 25,074, 25,076 (1995). The
Commission, "deeply concerned that almost ninety percent of offenders
convicted of crack cocaine offenses in the federal courts are Black,"
concluded that "sufficient policy bases for the current penalty
differential do not exist." Id.

The district court was persuaded. At Herron's sentencing hearing,
the judge stated:

I agree almost 100 percent with the defendant's
sentencing memorandum, that there is no substantial
difference between cocaine base and cocaine powder. . . .
The 100 to 1 ratio is absolutely ridiculous. . . . I
think the sentence called for in this case is extremely
excessive. You have a person who has never been
convicted of a crime before looking at 35 years of
sentence.

Herron Sentencing Tr. at 52, 58. Bound by this court's prior decisions,
however, the district court denied the appellants relief and sentenced the
appellants as follows: Herron and Jarrett received forty-year terms;
Nelson twenty-four years, four months; McKinney fifteen years, eight
months; Estell eleven years, three months; and Glover ten years, one month.

10
 The district court correctly determined that this court has
considered and rejected each of appellants' arguments. In United States
v. Jackson, 64 F.3d 1213 (8th Cir. 1995), cert. denied, 116 S. Ct. 966
(1996), we found the argument for application of the rule of lenity
meritless because of the "practical, real-world differences" between crack
and other forms of cocaine. Id. at 1220. While it did not address the
unique argument presented in this case--that "crack," as previously
understood, no longer exists--Jackson nonetheless is controlling. As in
Jackson, the appellants do not contend that they were unaware they were
dealing in crack or could not distinguish between the two. See id.
(argument failed, in part, because defendants did not demonstrate inability
to distinguish between the drugs).

Similarly, this court has previously determined that the 100:1
sentencing ratio is not a basis upon which a court may rely to depart
downward under U.S.S.G. § 5K2.0. See United States v. Lewis, 90 F.3d 302,
304 (8th Cir. 1996) ("The crack/powder ratio and its disparate impact are
not `aggravating or mitigating circumstances' particular to the appellants'
case which distinguish theirs from `heartland' cases."); United States v.
Higgs, 72 F.3d 69, 70 (8th Cir. 1995) (per curiam). As we stated in Lewis,
the Sentencing Commission's recommendation to eliminate the distinction
between cocaine base and powder does not prove that Congress did not intend
to impose longer sentences for cocaine powder; in fact, Congress' rejection
of the recommendation indicates the opposite. Lewis, 90 F.3d at 305
(citing Higgs, 72 F.3d at 70). It is not the court's role to decide
whether the ratio is "wise or equitable." Id. at 306.

Finally, in light of this circuit's numerous decisions finding a
rational basis for the 100:1 sentencing disparity in the statute and the
guidelines, we also reject McKinney's equal protection challenge to his
sentence. See e.g, United States v. Clary, 34 F.3d 709, 712 (8th Cir.
1994) (citing to seventeen previous Eighth

11
Circuit decisions upholding the constitutionality of the statute), cert.
denied, 115 S. Ct. 1172 (1995); United States v. Willis, 967 F.2d 1220,
1225 (8th Cir. 1992); United States v. Buckner, 894 F.2d 975, 980 (8th Cir.
1990). Thus, we affirm each appellant's sentence.9

IV.

The appellants' remaining challenges to their convictions are without
merit.10 Accordingly, we reverse Herron's and Jarrett's money-laundering
convictions, reverse Herron's conviction for use of a firearm, and affirm
the appellants' sentences for the cocaine base-related counts.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

9
This author continues to believe that the sentencing
disparity is unconstitutional for the reasons stated in my
concurring opinion in United States v. Willis, 967 F.2d 1220, 1226
(8th Cir. 1992) (J. Heaney, concurring). Recognizing the binding
effect of this court's prior decisions, however, I simply reiterate
that belief and encourage the court to reconsider this important
issue en banc.
10
The remaining challenges are as follows: Herron argues that
the district court erred in limiting his cross-examination of a
government witness; Jarrett contends that the district court should
have instructed the jury on a coercion defense; and Glover asserts
that the police officers violated the Fourth Amendment in searching
her motel room.

12