United States v. George Thompson

United States Court of Appeals
For the Eighth Circuit
___________________________

No. 11-1765
___________________________

United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

George Wylie Thompson

lllllllllllllllllllll Defendant - Appellant
___________________________

No. 11-1813
___________________________

United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Ralph Francis Deleo

lllllllllllllllllllll Defendant - Appellant
___________________________

No. 11-2124
___________________________

United States of America

lllllllllllllllllllll Plaintiff - Appellee
 v.

Samuel Gaylon Baggett

lllllllllllllllllllll Defendant - Appellant
___________________________

No. 11-2604
___________________________

United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

George Wylie Thompson

lllllllllllllllllllll Defendant - Appellant
____________

Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
____________

Submitted: February 14, 2012
Filed: August 28, 2012
____________

Before LOKEN, BYE, and MELLOY, Circuit Judges.
____________

MELLOY, Circuit Judge.

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 George Thompson, Samuel Baggett, and Ralph DeLeo appeal their criminal
convictions for offenses connected to illegal gambling, drug trafficking, firearms, and
marriage fraud. On appeal, Thompson, Baggett, and DeLeo assert error from lack of
suppression of wiretap evidence, error from improper joinder of Baggett's and
Thompson's cases, erroneous refusal to exclude evidence of Thompson's criminal
history and travel to China, and error from a determination that federal officers acted
within the scope of a search warrant when searching DeLeo's apartment. DeLeo also
argues that we should consider his ineffective assistance of counsel claim on direct
appeal, and Thompson argues that his right to be free of double jeopardy was violated
when the district court first granted, then reversed and denied, Thompson's motion
for judgment of acquittal on one count. We deny these claims and affirm on each
issue, with the exception of Thompson's double jeopardy claim. On that issue, we
find a double jeopardy violation and reverse Thompson's conviction on the one count
implicated by the double jeopardy issue.

I. Facts

In December 2008, the government began to surveil George Thompson
pursuant to an authorized wiretap. The government supported the wiretap application
with a sixty-eight-page affidavit setting out evidence supporting probable cause that
five or more people were participating in an illegal gambling business. This affidavit
was based on evidence obtained through undercover observation from confidential
witnesses ("CW"s), toll record analyses, surveillance photos, and trash pulls. The
affidavit described meetings between George Allen Thompson (the son of appellant
George Thompson), Gene Baker, and Dana Kuykendall, all alleged to be members of
the illegal gambling business; surveillance of Baker's "runs" to exchange money and
betting slips; and calls between Baker, Thompson, and other members of the business.
The affidavit also explained why wiretaps were necessary: it noted concerns that CWs
were passing information not only to law enforcement, but also back to members of

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the business and the fact that George Thompson burned betting slips weekly instead
of just throwing them away.

Through this wiretap, police overheard evidence about illegal drug trafficking
across state lines and the sale of firearms from Samuel Baggett to convicted felon
George Thompson. On the basis of the original affidavit, as well as information
obtained through the wiretap, the district court reauthorized the wiretap twice,
expanding its scope from calls relating to an illegal gambling enterprise, to those
relating to possible firearms, narcotics, extortion, visa fraud, and immigration
offenses.

After surveilling Thompson and his associates on the expanded wiretap for
several months, police executed search warrants for Thompson's property in May and
for Baggett's property in June. At the time they searched Baggett's property, police
also questioned Baggett about his relationship with Thompson and whether Baggett
had illegally sold him firearms and ammunition. Baggett denied having sold
Thompson firearms and ammunition.

In November 2009, police stopped Tri Cam Le (who is not a party to this case)
and found a significant amount of cocaine in his possession. After being arrested, Le
called Thompson, who in turn called Ralph DeLeo to discuss the arrest. On the basis
of this call and an ensuing investigation, the government executed a search warrant
on DeLeo's apartment. In the course of executing that search warrant, police searched
a storage room across the hall from the apartment, found a significant amount of
cocaine, and arrested DeLeo. On the basis of the evidence described above, the
government moved to indict and arrest Thompson, Baggett, and DeLeo. It jointly
indicted Thompson and Baggett1 and also jointly indicted Thompson and DeLeo for

1
A third person, Cary Gaines, was also indicted along with Thompson and
Baggett, but he is not a party to this appeal.

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various gambling, drug, and firearms offenses. Two cases proceeded to trial: one
against Thompson and Baggett and one against Thompson and DeLeo.

Before each trial, the defendants made several motions relevant to this appeal.
In the trial of Baggett and Thompson, Thompson moved to suppress evidence
obtained by the wiretap and also to sever the individual charges against him. Baggett
moved to sever his trial from Thompson's. The district court denied each of these
motions.

At the Baggett and Thompson trial, the government introduced several pieces
of evidence relevant to Baggett's knowledge of Thompson's felony status to support
its claim that Baggett aided and abetted a felon in possession of firearms: (1) a letter
to a state trial judge stating that Baggett had known Thompson for twenty years and
asking for the judge to show mercy to Thompson, (2) a telephone call between
Baggett and Thompson discussing options for getting Thompson a gun without
having to register, and (3) the fact that Thompson had told Baggett about time he
served in jail. During this trial, Baggett filed a conditional motion to sever if
Thompson chose not to testify. After it became apparent that Thompson would
indeed not testify, the district court denied the motion to sever. At the close of the
government's case, Thompson moved for a judgment of acquittal. The district court
took this motion under advisement, then denied it on all counts except count five,
felon in possession of a firearm. At this point, Thompson rested his case without
putting on any evidence, and Baggett began to call witnesses. After several witnesses
testified, the court, during a recess, expressed doubt as to the judgment of acquittal
on count five, and asked the parties for case law on whether it could reverse itself.
The following morning, the court determined it could reverse the motion, denied
Thompson's motion for a judgment of acquittal on count five, and resumed the trial.
After that trial, the jury found Thompson guilty of all counts, including count five.
Thompson was thus convicted of two counts being a felon in possession of a firearm,
one count of being a felon in possession of ammunition, one count of conspiracy, one

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count of illegal silencers, two counts of conspiracy to conduct an illegal gambling
ring, and one count of marriage fraud. Baggett was found guilty of one count each
of aiding and abetting a felon in possession of a firearm, false statements, and
conspiracy.

Before the trial of Thompson and DeLeo, both Thompson and DeLeo moved
to suppress evidence obtained by the wiretap. Thompson also moved to suppress
evidence concerning a prior arrest for drug trafficking activity and evidence of his
travel to China immediately after federal agents searched several of his properties.
DeLeo moved to suppress evidence found in a storage room that agents searched
ostensibly under the authority of a search warrant of his apartment. The district court
denied these motions.

At Thompson's and DeLeo's trial, the government introduced evidence of the
telephone call between Thompson and DeLeo discussing Tri Cam Le's arrest. It also
put on evidence of Thompson's withdrawal of money and travel to China following
a search of Thompson's home and another property he owned. After the trial, a jury
found Thompson guilty of (1) conspiracy to possess with intent to distribute cocaine,
(2) aiding and abetting possession with intent to distribute cocaine, and (3) use of a
communication device to facilitate a drug transaction. The jury found DeLeo guilty
of (1) conspiracy to possess with intent to distribute cocaine, (2) use of a
communication device to facilitate a drug transaction, and (3) aiding and abetting
possession with intent to distribute cocaine.

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 II. Discussion

A. Suppression of Wiretap Evidence

The district courts did not err in refusing to suppress evidence police acquired
from the wiretap.2 "We review the denial of a motion to suppress de novo but review
underlying factual determinations for clear error, giving due weight to the inferences
of the district court and law enforcement officials." United States v. Nichols, 574
F.3d 633, 636 (8th Cir. 2009) (internal quotation marks omitted). Thompson and
DeLeo assert three errors in both district courts' decisions to admit the wiretap
evidence. We address each asserted error below.

1. Probable Cause

Among other things, the federal wiretap statute requires judges granting
applications for wiretaps to find that "there is probable cause for belief that an
individual is committing, has committed, or is about to commit a particular offense
enumerated in section 2516 of this chapter." 18 U.S.C. § 2518(3)(a). The probable
cause requirement in this statute is linked to the Fourth Amendment. Thus, to grant
an application for a wiretap, district courts must make a "practical, common-sense
decision whether," considering the "totality-of-the-circumstances . . . there is a fair
probability that contraband or evidence of a crime will be found in a particular place."
Illinois v. Gates, 462 U.S. 213, 238 (1983).

One of the enumerated offenses for which a judge may grant an application for
a wiretap is found in 18 U.S.C. § 1955, which prohibits illegal gambling businesses

2
Thompson challenges the district courts' denial of his motion to suppress in
both cases against him. In the appeal from the joint trial of Thompson and DeLeo,
DeLeo joins him in this challenge.

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that "involve[] five or more persons who conduct, finance, manage, supervise, direct,
or own all or part of such business." 18 U.S.C. § 1955(b)(1)(ii). This court has held
that the language and legislative history of this section "was specifically drafted so
as to exclude customers or bettors" from the count of five or more persons. United
States v. Bennett, 563 F.2d 879, 881 (8th Cir. 1977). Instead, the section "applies
generally to persons who participate in the ownership, management, or conduct of an
illegal gambling business." Id. However, we have also clarified that "[t]he term
'conducts' refers both to high level bosses and street level employees." Id.

Thompson and DeLeo argue that the government's affidavit only established
probable cause that four of the six people it identified were involved in the illegal
gambling business. They therefore argue that the police did not have probable cause
to believe that "five or more" persons were conducting an illegal gambling business,
as required by the statute. They argue specifically that the police did not have
probable cause to believe George Allen Thompson (Thompson's son) and Gene Baker
were anything other than customers or bettors, rather than members of the illegal
gambling enterprise. Thompson and DeLeo describe the evidence against Baker and
George Allen Thompson as merely "generalized suspicions that failed to rise to the
level of probable cause to believe they were members of the enterprise."

Thompson's description of the evidence supporting the affidavit is cursory and
discounts the volume of gambling activity in which both George Allen Thompson and
Baker were involved. This evidence, summarized in an affidavit to the district court
supporting the government's wiretap application, includes multiple meetings between
George Allen Thompson, Baker, and Dana Kuykendall (another member of the illegal
gambling business); undercover agents' observations of the three men counting large
amounts of money; surveillance of Baker making "runs" to exchange money and
betting slips; hundreds of telephone calls between Baker, George Allen Thompson,
and other members of the illegal gambling business; and conversations indicating that
George Thompson was grooming George Allen to take over the gambling business.

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 The sheer volume of this evidence undercuts Thompson's argument that individual
pieces of it are as consistent with Baker and George Allen Thompson being customers
as with being members of the enterprise. See United States v. $141,770.00 in U.S.
Currency, 157 F.3d 600, 604 (8th Cir. 1998) (holding that probable cause was
established "[i]n light of the aggregate facts of this case"). Furthermore, the fact that
CWs supplied some of this information does not negate its strength, because much
of that information was corroborated by toll record analysis and surveillance photos.
See United States v. Williams, 10 F.3d 590, 593 (8th Cir. 1993) ("The core question
in assessing probable cause based upon information supplied by an informant is
whether the information is reliable. Information may be sufficiently reliable to
support a probable cause finding if . . . it is corroborated by independent evidence.")
The district courts did not commit clear error in finding the government's wiretap
application supported by probable cause.

2. Necessity of the Wiretap

Thompson and DeLeo also argue that the district courts should have suppressed
the wiretap evidence because the government failed to prove the necessity of the
wiretap. Before granting an application for a wiretap, a judge must first determine
that "normal investigative procedures have been tried and have failed or reasonably
appear to be unlikely to succeed if tried or to be too dangerous." 18 U.S.C.
§ 2518(3)(c); see also United States v. Jackson, 345 F.3d 638, 644 (8th Cir. 2003)
("The necessity requirement of § 2518 insures that wiretaps are not routinely
employed as the initial step in an investigation." (internal quotation marks omitted)).
We have interpreted this requirement to "restrict wiretaps to [situations in which they]
are necessary as well as reasonable," but not to require the government to show "the
exhaustion of 'specific' or 'all possible' investigative techniques before wiretap orders
could be issued." United States v. Daly, 535 F.2d 434, 438 (8th Cir. 1976). "Whether
the statutory requirement is met is to be determined by the issuing judge in a
commonsense manner, and the determination is a finding of fact, which can be

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reversed only if clearly erroneous." United States v. Macklin, 902 F.2d 1320, 1327
(8th Cir. 1990).

Thompson and DeLeo argue that in both the initial wiretap order and the
subsequent orders, the government failed to show that it could not gather information
with other investigative methods before seeking a wiretap authorization. They also
argue that the government's showing of necessity was based generally on gambling
offenses and was not case specific. These arguments are unsupported by the facts
included in the government's affidavit supporting its request for a wiretap. First, the
government extensively utilized other methods of investigation before resorting to
wiretaps. These investigative methods included the development of a confidential
witness, the use of telephone toll records, and trash pulls and seizures. Second, the
affidavit supporting the government's application for a wiretap explained that these
methods, while yielding some information, were insufficient "for the purpose of
discovering the full scope of the conspiracy, the full extent of the criminal activities,
and to identify and successful prosecute each member of the organization." Jackson,
345 F.3d at 644. Specifically, there was concern that the CWs, in addition to passing
information to the government, were also passing information back to the members
of the gambling business. The utility of trash pulls and seizures was also
compromised by Thompson's habit of burning betting slips weekly instead of merely
throwing them out. We cannot say that the district court committed clear error in
determining these facts supported a showing of necessity for both the initial and
subsequent wiretap authorizations. See United States v. West, 589 F.3d 936, 939 (8th
Cir. 2009) (holding the district court did not err in finding necessity where the
government's affidavit detailed the use of other investigative techniques and
explained why these techniques were dangerous or ineffective under the
circumstances); Jackson, 345 F.3d at 644.

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 3. Franks Hearing

Finally, Thompson argues that the district court erred in failing to grant a
Franks hearing to examine the credibility of two CWs whose testimony partially
supported the affidavit. See Franks v. Delaware, 438 U.S. 154, 155–56 (1978).
Thompson specifically argues that the government omitted facts from the affidavit in
order to mischaracterize the criminal history of the CWs and make them appear
honest and reliable. This court reviews a district court's denial of a Franks hearing for
abuse of discretion. United States v. Fairchild, 122 F.3d 605, 610 (8th Cir. 1997).

In order to establish the necessity of a Franks hearing where a defendant
alleges a factual omission from the affidavit supporting the search warrant, the
defendant bears the burden of showing: "(1) that facts were omitted with the intent
to make, or in reckless disregard of whether they make, the affidavit misleading; and
(2) that the affidavit, if supplemented by the omitted information, could not support
a finding of probable cause." United States v. Reinholz, 245 F.3d 765, 774 (8th Cir.
2001). "[R]ecklessness may be inferred from the fact of omission of information
from an affidavit . . . only when the material omitted would have been clearly critical
to the finding of probable cause." United States v. Ozar, 50 F.3d 1440, 1445 (8th Cir.
1995) (internal quotation marks omitted).

Here, Thompson argues that the affidavit minimized the criminal history of the
government's two confidential witnesses. CW1, a former police officer, had been
convicted of passing fraudulent checks and was forced to resign from the police force.
Regarding CW1, the affidavit stated:

Prior to his work for THOMPSON, CW1 served as a local law
enforcement officer, but resigned when CW1 was charged with theft by
an ex-girlfriend; these charges were ultimately dismissed. CW1 is
currently on probation after being convicted of nonpayment of checks
in connection with a failed business effort.

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Regarding CW2, the affidavit stated that "Confidential Witness 2 (CW2) has
previously been convicted for illegal drug offenses." Thompson argues that both
descriptions of the CWs' criminal histories are conclusory and minimize the breadth
of their criminal backgrounds.

Thompson is perhaps correct that the affidavit presented the CWs' criminal
histories in the least damaging light, but this alone is not sufficient to mandate a
Franks hearing. First, Thompson has not pointed to any material misstatement of
fact; his complaint, rather, is that the criminal histories, while disclosed, were
minimized. See Ozar, 50 F.3d at 1445. Second, even if the criminal histories were
materially misstated, any misstatement regarding those histories would not undermine
the probable cause established by the affidavit. The testimony of the CWs comprised
only part of the evidence compiled against the defendants. The affidavit also
included evidence obtained by surveillance of gambling runs and toll record analyses
of Thompson's meetings with his bettors, video surveillance of several places in
which Thompson conducted gambling business, evidence of Thompson's wealth and
historical participation in the gambling business, and toll records showing
voluminous communications between Thompson and other members of the gambling
business. In light of this evidence, the material omitted from the descriptions of the
criminal histories, if any, is insufficient to negate the district court's finding of
probable cause in this case. See id. (holding that probable cause was not undermined
where other evidence supporting the charge was unchallenged); see also United States
v. Carnahan, 684 F.3d 732, 735 (8th Cir. 2012) ("Omitting that a confidential
informant has a criminal record or is cooperating does not satisfy [the] rigorous
standard [of reckless disregard for the truth] when the informant's information is
partially corroborated or his general credibility is otherwise not significant to the
probable cause inquiry.").

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 B. Severance

Thompson and Baggett assert several rationales for why their cases and the
charges against them should not have been tried together. Thompson argues that the
cases should have been severed because they were not alleged to have participated
in the same act or transaction, as required by Federal Rule of Criminal Procedure
8(b). Baggett argues that his case should have been severed from Thompson's
because he was prejudiced by Thompson's assertion of his Fifth Amendment rights
and consequent refusal to testify. Finally, Thompson argues that the individual
charges against him should have been severed because these offenses were not "of the
same or similar character, . . . based on the same act or transaction, or . . . parts of a
common scheme or plan" as required by Federal Rule of Criminal Procedure 8(a).
Although Thompson and Baggett raise these issues in their briefs as both joinder and
severance issues, they do not appear to have contested the joinder, which occurred
when the defendants were jointly indicted, below. Accordingly, we review only the
district court's denial of Thompson's and Baggett's motions to sever. "We will not
reverse a denial of a motion to sever unless the appellant demonstrates an abuse of
discretion resulting in clear prejudice." United States v. Lewis, 557 F.3d 601, 609
(8th Cir. 2009) (internal quotation marks omitted).

1. Same Act or Transaction

Thompson claims that the district court improperly joined and refused to sever
his cases from Baggett's, as required by Federal Rule of Criminal Procedure 8(b)
(joinder of offenses is proper if the offenses charged "are alleged to have participated
in the same act or transaction, or in the same series of acts or transactions,
constituting an offense or offenses"). With respect to coconspirators, joinder may be
proper where there is "an overall scheme in which each conspiracy member
participated." United States v. Liveoak, 377 F.3d 859, 865 (8th Cir. 2004).
"Importantly, not every defendant joined must have participated in every offense

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charged." United States v. Delpit, 94 F.3d 1134, 1143 (8th Cir. 1996). Rather, in
general, "'persons charged in a conspiracy or jointly indicated on similar evidence
from the same or related events should be tried together.'" United States v. Lewis,
557 F.3d 601, 609 (8th Cir. 2009) (internal quotation marks omitted).

Thompson argues his case should not have been tried with Baggett's because
the offenses for which the two men were tried were not part of an "overarching
conspiracy" and were therefore not part of the same series of acts or transactions.
Although it is true that Baggett was only indicted for firearms offenses, whereas
Thompson was indicted for firearms, gambling, and immigration offenses, these
charges are nevertheless all part of the same overarching scheme in which Thompson
made money by operating an illegal gambling business, selling firearms, and
receiving money in exchange for arranging a marriage to contravene immigration
laws. See Liveoak, 377 F.3d at 865 (holding that "[t]hough charges linked merely by
common conspiracy members may not be joined," the particular charges were
properly joined because they were "linked not only by common conspiracy members,
but also by an overall scheme in which each conspiracy member participated to
fraudulently charge the government for health care costs"). Furthermore, the
significant overlap in evidence relevant to these two defendants indicates that joinder
was proper here. See United States v. Pou, 953 F.2d 363, 368 (8th Cir. 1992)
("Ordinarily, indicted coconspirators should be tried together, especially where the
proof of conspiracy overlaps."). The cases against both men required evidence of the
sources of Thompson's income, Thompson's relationship with Baggett, and Baggett's
knowledge of Thompson's criminal history and activities.

"The presumption against severing properly joined cases is strong." United
States v. Ruiz, 412 F.3d 871, 886 (8th Cir. 2005). The district court instructed the
jury that it "must give separate consideration to the evidence about each individual
defendant" and it "must consider, separately, each crime charged against each
individual defendant." The mere "possibility that a defendant's chances for acquittal

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may be better in separate trials is an insufficient justification for severance." Id. at
887; see also Pou, 953 F.2d at 368–69 ("This preference for joint trials is not limited
by any requirement that the quantum of evidence of each defendant's culpability be
quantitatively or qualitatively equivalent." (internal quotation marks omitted)). The
district court did not abuse its discretion by denying Thompson's motion.

2. Prejudice to Baggett From Thompson's Refusal to Testify

Baggett argues that the district court improperly denied his motion to sever his
and Thompson's trials, because Thompson's assertions of his Fifth Amendment right
to not testify prejudiced Baggett by denying Baggett's right to present a complete
defense and his right to compel a witness in his favor to testify. Had the trials been
separate, Baggett asserts, Thompson would have testified that he did not tell Baggett
he was a felon until after Baggett provided him with firearms. Therefore, Baggett
could not have been convicted of charges that he aided and abetted a felon's
possession of a firearm, conspired to dispose of ammunition to a felon, and made
false statements to agents of the Bureau of Alcohol, Tobacco, and Firearms about
these incidents.

However, "[s]everance is not mandated simply because a codefendant might
testify and thereby only increase the chances of acquittal or tend to rebut some aspect
of the government's case. Exculpation is required." United States v. Foote, 920 F.2d
1395, 1400 (8th Cir. 1990) (internal citation and quotation marks omitted). Here,
even if Thompson would have testified at a solo trial for Baggett,3 the testimony he

3
For evidence that Thompson would have testified at a separate trial for
Baggett, Baggett points only to Thompson's failure to deny Baggett's statement that
Thompson would testify at a pretrial hearing. However, the government argues that
Thompson would not likely testify, pointing to an ongoing prosecution of Thompson
in Massachusetts, for which there is no known end date. It is not clear that Baggett
has demonstrated a sufficient likelihood that Thompson would testify in his favor.

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would have provided would not have been exculpatory. The government has several
probative pieces of evidence to rebut potential testimony by Thompson that Baggett
did not know of Thompson's felony status. Most convincingly, this evidence includes
a letter Baggett wrote to a state court judge in 2003, stating that he had known
Thompson for nearly twenty years and asking the judge to show mercy to Thompson
at a criminal sentencing. Such evidence would cast serious doubt on any testimony
by Thompson that Baggett did not know of his felony status and on the chances that
such testimony would exculpate Baggett. Thus, the district court did not commit an
abuse of discretion resulting in clear prejudice when it denied Baggett's motion to
sever.

3. Charges Against Thompson

Thompson argues the district court erred in denying his motion to sever the
charges against him. See Fed. R. Crim. P. 8(a) (joinder of offenses against the same
defendant is proper where those offenses "are of the same or similar character, or are
based on the same act or transaction, or are connected with or constitute parts of a
common scheme or plan"). Because Thompson could not testify regarding his felon-
in-possession-of-firearms charges without incriminating himself, he also chose to not
take the stand to address the gambling and marriage fraud charges, for which he
viewed his testimony as important.

These facts do not establish clear prejudice to Thompson sufficient to render
the district court's decision an abuse of discretion. "[A] defendant does not suffer any

See United States v. Crumley, 528 F.3d 1053, 1063–64 (8th Cir. 2008) ("It is not
enough for a defendant to claim that he needed a separate trial in order to call a co-
defendant as a witness. He must show that it is likely his codefendant would have
testified and that the testimony would have been exculpatory." (internal marks and
alterations omitted)).

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undue prejudice by a joint trial if the evidence is such that one crime would be
probative and admissible at the defendant's separate trial of the other crime." United
States v. Little Dog, 398 F.3d 1032, 1037 (8th Cir. 2005) (internal quotation marks
omitted). Evidence presented at trial showed that Thompson received firearms as
payment for gambling debts, and that the person Thompson aided and abetted in
committing marriage fraud was also an agent of Thompson's gambling business.
Thus, even if the district court had granted the motion to sever, allowing Thompson
to testify at one trial for the gambling and marriage charges, his testimony would
likely have opened the door to questions about the firearms charges. Thompson did
not suffer clear prejudice and the district court did not abuse its discretion.

C. Thompson's Other Evidentiary Challenges

Thompson challenges two other evidentiary rulings from his trial with DeLeo.
First, he argues that the district court admitted evidence of a prior arrest as improper
character evidence, in violation of Federal Rule of Evidence 404. Second, he claims
the district court improperly admitted evidence of Thompson's travel to China as
evidence of flight. We review both evidentiary rulings for abuse of discretion, "and
will disturb a district court's decision only when such evidence clearly had no bearing
on the case and was introduced solely to prove the defendant's propensity to commit
criminal acts." United States v. Franklin, 250 F.3d 653, 658 (8th Cir. 2001) (internal
quotation marks omitted).

1. Evidence of Thompson's Prior Arrest

Thompson first argues that evidence of a prior arrest for drug trafficking was
improperly admitted as character evidence. Federal Rule of Evidence 404(b)
prohibits "[e]vidence of a crime, wrong, or other act . . . to prove a person's character
in order to show that on a particular occasion the person acted in accordance with the

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character," but allows this evidence for other purposes, such as to show knowledge
or intent.

The evidence at issue is a transcript of a telephone call between Thompson and
DeLeo, in which Thompson discusses Tri Cam Le, who was trafficking cocaine for
Thompson, having been stopped on the interstate and found to be in possession of
"2.2 kilos." In that call, Thompson tells DeLeo that Le's bond is "really low," and
says: "Yeah. Donna said it was 50,000, they, hell they caught me with six grams.
They caught me with six grams and charged me a 100,000 bond." We first note that
this statement might not be character evidence at all, and Federal Rule Evidence 403
might thus be more apt to analyze its admissibility. Even assuming the statement was
character evidence, however, it was not inadmissible. The government introduced the
statement as evidence of Thompson's intent to distribute illegal drugs, to refute
Thompson's and DeLeo's defense that they were ignorant of Le's drug trafficking
activities. The quoted statement shows Thompson's knowledge of the drug
trafficking business. "[E]vidence of prior possession of drugs, even in an amount
consistent only with personal use, is admissible to show such things as knowledge
and intent of a defendant charged with a crime in which intent to distribute drugs is
an element." Franklin, 250 F.3d at 658 (internal quotation marks omitted).
Moreover, the district court gave a limiting instruction to the jury, reminding the
jurors that "even if you find that Mr. Thompson may have committed a similar act in
the past, this is not evidence that he committed such an act in this case. . . . [Y]ou
may consider the evidence of the prior act only on the issue of knowledge." This
limiting instruction further minimized any danger that the jury would interpret
Thompson's statement merely as character evidence, and there was no error in
allowing the government to introduce it.

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 2. Evidence of Thompson's Flight

Thompson also argues that the district court erred in admitting evidence that
he traveled to China after the government searched his home and another property he
owned as evidence of flight indicating consciousness of guilt. It is "well established"
that evidence of flight

is admissible and has probative value as circumstantial evidence of
consciousness of guilt. . . . [I]t is today universally conceded that the
fact of an accused's flight, escape from custody, resistance to arrest,
concealment, assumption of a false name, and related conduct, are
admissible as evidence of consciousness of guilt, and thus of guilt
itself."

United States v. Hankins, 931 F.2d 1256, 1261 (8th Cir. 1991) (internal quotation
marks omitted). Whether evidence of flight is circumstantial evidence of guilt
depends on

the degree of confidence with which four inferences can be drawn: (1)
from the defendant's behavior to flight; (2) from flight to consciousness
of guilt; (3) from consciousness of guilt to consciousness of guilt
concerning the crime charged; and (4) from consciousness of guilt
concerning the crime charged to actual guilt of the crime charged.

Id. (internal quotation marks omitted).

In this case, the district court considered the four factors and determined that
evidence of Thompson's flight was circumstantial evidence of his guilt:

Here, you know, the issue is whether there's evidence that would link the
potential, the flight or the trip to China to consciousness of guilt, not
only of the crime, but of the specific crime that's charged here. And the
evidence has shown, I mean, I think that the jury could conclude from

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 the wiretap telephone conversation that there was a great deal of concern
on the part of Mr. Thompson with respect to Tri Cam Le and his arrest
and a great deal of effort on his part to deal with that situation. And
then the first overt signal that he might be implicated was the search
warrant and the search of the premises in May. And there were specific
items of evidence seized in that search warrant that relate back to the
telephone conversations and this whole thing with Tri Cam Le. And
shortly after that, there was a withdrawal of money and the trip to China.
So I think there's a sufficient connection for the flight to have probative
value, and furthermore, I think the probative value is not outweighed by
danger of unfair prejudice.

Thompson argues that he fled to China not because of the potential drug charge, but
rather because of concern "only with the penalty he would face if convicted of being
a felon in possession." The line Thompson draws is a thin one. Moreover, although
a jury could potentially view the evidence as Thompson presents it, this alternative
theory is insufficiently convincing to render district court's interpretation and
admission of it an abuse of discretion.

D. The Search of the Storage Room Outside of DeLeo's Apartment

DeLeo argues that the district court erred in denying his motion to suppress
evidence the government collected from a storage room outside his apartment. We
review a trial court's factual findings underlying a motion to suppress for clear error
and its legal conclusions de novo. United States v. Black Bear, 422 F.3d 658, 661
(8th Cir. 2005).

"When an official search is properly authorized—whether by consent or by the
issuance of a valid warrant—the scope of the search is limited by the terms of the
authorization." United States v. Ware, 890 F.2d 1008, 1011 (8th Cir. 1989)
(emphasis and internal quotation marks omitted). In Ware, we affirmed a district
court's refusal to suppress evidence. The defendant in that case consented to a search

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of his apartment for drugs, and officers also searched a storage room right outside his
apartment, ostensibly under that consent. We found that search did not exceed the
scope of defendant's consent:

Ware's lease of the apartment included the storage bin and he was
provided with a key giving access to the storage room. The storage
room was next door to Ware's apartment, near enough to alert the
searching officers that it was an appurtenance of the apartment, a fact
confirmed when the officers found that Ware's key ring included the
keys to both the storage room door and the locked bin.

Id.; see also United States v. Principe, 499 F.2d 1135, 1137 (8th Cir. 1974) (holding
that officers could "reasonably suppose" that a search warrant for a defendant's
apartment also included a cabinet in hallway three to six feet away from the door of
that apartment).

In this case, the search warrant authorized a search of "17 Russell Street,
Apartment 9, Basement" in Somerville, Massachusetts. Under this authority, federal
agents also searched a storage room in the hallway of that apartment building and
recovered ten grams of cocaine. While this storage room was not part of DeLeo's
apartment, DeLeo kept the key to it on his key ring. The agents used the key on
DeLeo's key ring to access the storage unit. Furthermore, DeLeo's apartment was the
only one in the basement, and his apartment had no number on the door. Finally,
inside the storage room, officers found a locked box bearing DeLeo's initials (RFD)
and warning people not to touch it. The officers were thus reasonable in their belief
that the storage room was appurtenant to DeLeo's apartment, and the district court did
not err in refusing to suppress the evidence.

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 E. Ineffective Assistance of Counsel

"We review the district court's denial of a motion for new trial based on
ineffective assistance of counsel for abuse of discretion." United States v. Hubbard,
638 F.3d 866, 870 (8th Cir. 2011). Such claims are "generally best litigated in
collateral proceedings, such as an action under 28 U.S.C. § 2255." Id. at 869. A
defendant may only bring an ineffective assistance claims on direct appeal "where the
record has been fully developed, where not to act would amount to a plain
miscarriage of justice, or where counsel's error is readily apparent." Id. (internal
quotation marks omitted).

The Court has, "on occasion," found the trial court record sufficiently
developed to allow a defendant to bring an ineffective assistance of counsel claim on
direct appeal. Id. (holding we could review the ineffective assistance claim because
the district court held an evidentiary hearing on that issue); see, e.g., United States v.
Williams, 562 F.3d 938, 941–42 (8th Cir. 2009) (finding a sufficiently developed
record when potential trial witnesses testified at the post-trial hearing); United States
v. Villalpando, 259 F.3d 934, 938–39 (8th Cir. 2001) (noting that, although the
district court did not conduct a hearing, we were able to observe trial counsel's "poor"
representation at trial); United States v. Williams, 897 F.2d 1430, 1434 (8th Cir.
1990) (finding a sufficiently developed record when trial counsel and an investigator
testified at a post-trial hearing that they contacted a potential witness alleged to have
exculpatory evidence, and determined that his testimony would not have affected the
outcome of the case). In all of these cases, however, the trial court was able, either
through its own observations or via testimony from a hearing, to observe the
performance of defense counsel and draw relatively unbiased conclusions about the
quality of that performance.

Here, the evidence underlying DeLeo's claim for ineffective assistance is not
sufficiently developed. The bulk of the alleged misconduct DeLeo identifies occurred

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away from the courtroom. DeLeo points to his own pro se motions for a new trial and
to his attempts to discharge his attorneys as evidence of the ineffective assistance.
He also complains that his attorneys did not sufficiently prepare for trial and that they
did not allow him to testify as much as he wanted. These claims, complex and
intertwined with trial strategy, are best left for a 28 U.S.C. § 2255 proceeding.

F. Sufficiency of the Evidence Against Baggett

The district court did not err in denying Baggett's motion for acquittal. This
Court reviews a district court's denial of a motion for acquittal de novo, but will only
reverse if no reasonable jury could have found the defendant guilty beyond a
reasonable doubt. United States v. Espinosa, 585 F.3d 418, 423 (8th Cir. 2009).
Where there are conflicting views of the evidence, the Court resolves those conflicts
"in favor of the government, and accept[s] all reasonable inferences supported by the
evidence." Id. (internal quotation marks omitted).

Baggett argues that the evidence was insufficient to support three of the
charges for which he was convicted. These charges are count six, aiding and abetting
a felon in possession of a weapon; count seven, false statements to a federal agent;
and count nine, conspiracy to obtain ammunition for a felon. For each of these three
counts, Baggett's argument that there was insufficient evidence for conviction centers
on his assertion that the government did not present sufficient evidence to show that
Baggett knew or should have known that Thompson was a felon at the time of the
weapon and ammunition sale, or at the time of his statements to federal agents. This
argument is unavailing. The government presented evidence of (1) a letter Baggett
wrote to the judge in Thompson's Pulaski County criminal case in 2003 stating that
he had known Thompson for twenty years, and that Thompson was "a good man and
deserve[d] mercy" in sentencing; and (2) a telephone call between Baggett and
Thompson in which the two men discussed options to get a gun to Thompson without
it being registered in his name. This evidence is sufficient to allow a reasonable jury

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to conclude that Baggett was aware of Thompson's felony status at the time Baggett
sold Thompson a gun. See United States v. Hyles, 521 F.3d 946, 955–56 (8th Cir.
2008) (finding sufficient evidence to show that defendant knew the person to whom
she provided a weapon was a felon because she had known him her whole life and
she signed his bond papers, which indicated he was charged with felony stealing).4

With regard to count six, Baggett also challenges the government's proof on the
issue of whether Thompson constructively possessed the gun Baggett sold on his
behalf. The government presented evidence that Baggett was holding Thompson's
gun for him and attempting to sell it to others. Most importantly, it introduced a
telephone call between Thompson and Baggett in which the two men discussed
another person's interest in buying the gun and what price Thompson found
acceptable. This is sufficient evidence to allow a reasonable jury to find that
Thompson constructively possessed the gun at that time. See United States v. Ali, 63
F.3d 710, 715 (8th Cir. 1995) (approving the same jury instruction given in this case,
which defines constructive possession as occurring when "[a] person who, although

4
Hyles also holds that knowledge of the law is not an element of the crime of
delivering a firearm to a felon. Hyles, 521 F.3d at 956. In other words, it is not
necessary for conviction to know that providing a felon with a firearm is unlawful.
The case does not state that knowledge of the fact that the person to whom a
defendant delivers a firearm is a felon is not an element of this offense, nor could it
correctly do so. Like other aiding and abetting crimes, aiding and abetting a felon in
possession of a firearm requires the government to prove the defendant acted
purposefully as to all elements of the crime. See Bailey v. United States, 29 F.3d 627,
at *1 (8th Cir. 1994) (unpublished) ("To prove aiding and abetting, the government
must prove the defendant had a 'purposeful attitude' or knowingly participated in the
activity."); United States v. Ivey, 915 F.2d 380, 385 (8th Cir. 1990) ("To establish
aiding and abetting liability under 18 U.S.C. § 2, the government must prove that the
defendant had a 'purposeful attitude,' defined as affirmative participation which at
least encourages the perpetrator."). Here, the government must prove a purposeful
attitude as to both delivering a firearm and delivering it to a felon.

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not in actual possession, has both the power and the intention at a given time to
exercise control over a thing, either directly or through another person or persons").

Finally, with regard to count nine, Baggett argues that he cannot be convicted
of conspiracy to obtain ammunition for a felon because he was not aware of "federal
laws regulating the sale of ammunition to felons." However, knowledge of the law
is not required for conviction. Baggett need only know "of the facts constituting the
offense," and here, the government has shown that he did. United States v. Hutzell,
217 F.3d 966, 968 (8th Cir. 2000).

G. Double Jeopardy

The final issue on appeal is Thompson's claim that the Double Jeopardy Clause
forbade the district court from reversing its initial grant of the motion for judgment
of acquittal. At the close of the government's case, Thompson moved for judgment
of acquittal as to all counts against him. The district court denied the motion, except
as to count five, which it took under advisement and then granted. After the court
granted this motion, Thompson rested without putting on a case. Baggett
subsequently began his case. After Baggett called several witnesses, the court
ordered a recess, expressed that it thought it made a mistake in granting the motion,
and asked the parties for law on whether it could reverse itself. The following
morning, the court determined reversal was appropriate and denied the motion for
judgment of acquittal on count five. At the close of trial, the jury returned a verdict
of guilty on that count.

"We review de novo the District Court's decision on questions of law,
including the application of . . . the Double Jeopardy Clause." United States v.
Brekke, 97 F.3d 1043, 1046–47 (8th Cir. 1996). Once a defendant has been
acquitted, either by judge or by jury, "subjecting the defendant to postacquittal
factfinding proceedings going to guilt or innocence violates the Double Jeopardy

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Clause." Smalis v. Pennsylvania, 476 U.S. 140, 145 (1986). The Supreme Court has
defined an "acquittal" as a decision "actually represent[ing] a resolution, correct or
not, of some or all of the factual elements of the offense charged." Smith v.
Massachusetts, 543 U.S. 462, 468 (2005) (quoting United States v. Martin Linen
Supply Co., 430 U.S. 564, 571 (1977)).

In Smith, the Supreme Court confronted an issue similar to the one here.
There, in a trial of two defendants, the trial court granted one
defendant's—Smith's—motion for judgment of acquittal on one of the several charges
against him after the prosecution rested its case. After this point, the defense put on
its case: Smith's codefendant called one witness, and then both defendants rested. At
this point, the court decided it had made a mistake and reversed its earlier ruling, this
time denying Smith's motion for judgment of acquittal. The jury then found Smith
guilty of the originally-dismissed charge, among others. After determining that the
trial court's initial grant of Smith's motion was an acquittal, the Court went on to
consider if "the Double Jeopardy Clause permitted [the judge] to reconsider that
acquittal once petitioner and his codefendant had rested their cases." Smith, 543 U.S.
at 469. The Court first noted that "the facts of this case gave petitioner no reason to
doubt the finality of the state court's ruling. . . . Nor did the court's ruling appear on
its face to be tentative." Id. at 470. It then held the following:

The Double Jeopardy Clause's guarantee cannot be allowed to become
a potential snare for those who reasonably rely upon it. If, after a
facially unqualified midtrial dismissal of one count, the trial has
proceeded to the defendant's introduction of evidence, the acquittal must
be treated as final, unless the availability of reconsideration has been
plainly established by pre-existing rule or case authority expressly
applicable to midtrial rulings on the sufficiency of the evidence.

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Id. at 473. Accordingly, the Court found the trial court's reversal of its judgment of
acquittal and subsequent submission of that charge to the jury to be a double jeopardy
violation. Id.

In contrast to Smith, the Eleventh Circuit found no double jeopardy violation
in United States v. Hill, 643 F.3d 807 (11th Cir. 2011), where the trial court granted
a motion for judgment of acquittal at the beginning of a motions hearing, then
dismissed it at the end of the same hearing. Id. at 865–66. The Eleventh Circuit held
that, although the initial grant was a judgment of acquittal, the reversal did not cause
a double jeopardy violation. Id. at 867. Unlike in Smith, in Hill, "the matter was
'resolved satisfactorily before [the defendant] went forward with his case.'" Id.
(quoting Smith, 543 U.S. at 475). And, the court reasoned, "that makes all the
difference. Nothing was done, or could have been done, in reliance on the acquittal
ruling between the time that ruling was announced and the time it was rescinded."
Id.

Turning to the facts of this case, the district court's initial ruling, like that in
Smith and Hill, was a judgment of acquittal: it was a determination that the
government had not met its burden of proof on count five. Like the defendant in
Smith, Thompson had no reason to doubt the finality of this ruling, and there was no
indication on its face that the ruling was tentative. When the district court initially
granted Thompson's motion for judgment of acquittal, it did so unequivocally,
without making any indication of any availability of reconsideration: "Motion for
judgment of acquittal as a matter of law on [count] 5 is granted, exception saved."
Moreover, there was significant process in the trial between the district court's initial
grant of the motion for judgment of acquittal and its subsequent reversal. Not only
did Thompson's defense rest, but his codefendant, Baggett, began putting on
evidence. Like the Supreme Court in Smith, we will not allow "[t]he Double
Jeopardy Clause's guarantee [to] be allowed to become a potential snare for those who
reasonably rely upon it." Smith, 543 U.S. at 473. Once Thompson had rested his

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case, relying at least in part on the district court's judgment of acquittal, double
jeopardy attached and the reversal of that judgment was a constitutional violation.

Accordingly, we reverse Thompson's conviction on count five, for possession
of a Sig Sauer pistol. However, this does not end our inquiry on this issue. After
trial, the district court sentenced Thompson to 103 months' imprisonment on counts
one, five, and eight, which was to run concurrently with a 120-month sentence on
count ten. These sentences would run consecutively to an undischarged term of 121
months' imprisonment imposed in another case. Where we reverse one of several of
a defendant's criminal convictions, we remand for resentencing if "we are uncertain
whether [the district court] would have imposed the same or somewhat lesser
sentences for the remaining convictions as it did originally." United States v.
Schwartz, 924 F.2d 410, 426 (2d Cir. 1991). Here, the 103-month sentence of which
count five is a part is shorter than the sentence with which it runs concurrently, the
120-month sentence for count ten. That sentence is undisturbed by this appeal. We
thus do not remand for resentencing, because the vacated conviction would not affect
Thompson's sentence for the remaining convictions. See United States v. White Bull,
646 F.3d 1082, 1086 (8th Cir. 2011).5

III. Conclusion

Accordingly, we affirm the district courts on all issues, except for Thompson's
double jeopardy claim. On that issue, we reverse Thompson's charge on count five
in case number 11-2604, of being a felon in possession of a firearm.
______________________________

5
We do order that the $100 special assessment as to count five be vacated.

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