United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 11-2767
No. 11-3822
___________
United States of America, *
*
Plaintiff - Appellee, *
*
v. *
*
Rasheed G. Shakur, *
*
Defendant - Appellant. *
___________
Appeals from the United States
No. 11-2768 District Court for the
___________ Western District of Missouri.
United States of America, *
*
Plaintiff - Appellee, *
*
v. *
*
Latoyce Stockman, *
*
Defendant - Appellant. *
___________
Submitted: June 11, 2012
Filed: August 30, 2012
___________
Before LOKEN, GRUENDER, and BENTON, Circuit Judges.
___________
LOKEN, Circuit Judge.
After a joint trial, a jury convicted Rasheed G. Shakur of various drug offenses,
including conspiracy to distribute 1,000 kilograms or more of marijuana; conspiracy
to commit money laundering; being a felon in possession of a firearm; and possession
of a firearm in relation to a drug-trafficking offense. The jury convicted LaToyce
Stockman of conspiracy to distribute less than 50 kilograms of marijuana. The district
court sentenced Shakur to life plus 60 months in prison and Stockman to 36 months
in prison. They both appeal. Shakur argues the district court erred in denying his
mid-trial motion for appointment of new counsel and in allowing him to proceed pro
se at sentencing. He further contends in a separate appeal that the court exceeded its
authority by entering a Preliminary Order of Forfeiture nearly three months after
entering Judgment in his criminal case. Stockman argues insufficient evidence to
support his conviction, error in admitting $30,000 cash officers seized from his home,
and procedural error in determining drug quantity resulting in an unreasonable
sentence. We reverse the forfeiture order and otherwise affirm.
I. Background
At trial, the government introduced substantial evidence establishing that
Shakur operated a multimillion dollar drug trafficking conspiracy. Claiming to be
Kansas City’s “Michael Corleone” (of “The Godfather” film series), he bankrolled
everything from his associates’ legal expenses and family funerals to his luxurious
lifestyle. Pledged one associate, “Got foot soldiers out here like me, ready to kill
anything that moves for you.” Stockman was one “foot soldier” who purchased pound
quantities of marijuana from Shakur for street-level distribution.
In early 2007, the Federal Bureau of Investigation (FBI) and Kansas City Police
Department began investigating the conspiracy. Their investigation produced evidence
that, during 2007, Hugo Rodriguez-Rodriguez procured marijuana in El Paso, Texas
and, with his associates, flew loads to Kansas City and delivered 2,880 pounds to
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Shakur (as well as 31 pounds of cocaine). Later that year, officers stopped Rodriguez-
Rodriguez and an associate leaving Shakur’s residence with $17,000 in cash. Officers
persuaded the associate to work as a paid informant. She provided numerous details
of the conspiracy, which led to the seizure in 2008 of over $200,000, money destined
for suppliers in Mexico. The suppliers then limited Rodriguez-Rodriguez’s access to
drugs, constricting Shakur’s pipeline.
Seeking new sources, Shakur established relations with Audel Delgado-
Ordonez in Phoenix, eventually obtaining some 2,500 pounds of marijuana. Shakur
flew to Arizona every other week, packed eleven-pound quantities into boxes, and
mailed the boxes from various Phoenix post offices to various addresses in Kansas
City. He and his associates then gathered the boxes at his residence. The FBI
obtained judicial authorization to wiretap Shakur’s phones from March 2009 to June
2009. As they collected details of Shakur’s operation from the wiretap, agents began
intercepting packages to prove their contents. The conspirators devised but never
implemented a scheme to transport drugs from Phoenix to Kansas City via tractor
trailer to avoid losing packages in the mail. Throughout these operations, Shakur
purchased ecstasy pills and high-grade marijuana from Jesse Oliver in Sacramento,
California, using a similar mailing system.
On June 25, 2009, officers simultaneously executed search warrants at several
conspirators’ residences, seizing evidence and making arrests. Numerous indictments
followed. Shakur and Stockman proceeded to trial. Twenty nine others pleaded
guilty; many testified for the government against Shakur and Stockman.
II. Shakur’s Appeals
A. Motion to Dismiss Trial Counsel. At the start of the third day of trial,
Shakur’s retained counsel advised the district court that Shakur had asked counsel to
withdraw. The court asked, “What’s the basis for this, Mr. Shakur?” Shakur
responded that he wanted “to go on record . . . to dismiss counsel . . . on the grounds
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of negligence, conflict of interest, statements of neglect, [] inability to object and
communicate, attorney-client privileges, and violating disciplinary rule 1-102(a)
paragraph 4.”1 The court inquired, “Can you be a little more specific?” Shakur
replied, “It’s not really an issue. I just think it would be best as far as this case and
trial goes if I be allowed to dismiss counsel from these proceedings.” In response to
further questions from the court, Shakur said he had not selected or talked to another
attorney, did not wish to represent himself, and was not asking for a continuance of
the trial. The district court observed that Shakur’s counsel “enjoys an excellent
reputation” and opined that “you’ve been well represented during the course of this
case.” The court denied Shakur’s request and encouraged him to cooperate with his
experienced attorney to ensure a fair trial.
On appeal, Shakur argues the district court abused its discretion by failing to
“conduct an adequate inquiry into the nature and extent of an alleged breakdown in
attorney-client communications.” United States v. Taylor, 652 F.3d 905, 908 (8th Cir.
2011) (quotation omitted). Last-minute requests to substitute counsel are disfavored.
United States v. Jones, 662 F.3d 1018, 1024 (8th Cir. 2011), cert. denied, 132 S. Ct.
2733 (2012). Shakur’s request was made on the third day of trial. He had not
attempted to select substitute counsel, and did not seek to represent himself nor a
continuance of the trial. A defendant’s right to choose counsel “must not obstruct
orderly judicial procedure or deprive courts of their inherent power to control the
administration of justice.” Id. at 1024 (quotation omitted). Here, the district court
carefully inquired why Shakur was dissatisfied with counsel. His unsupported
assertion of a “conflict of interest” required no “elaborate inquiry.” Ausler v. United
States, 545 F.3d 1101, 1104 (8th Cir. 2008). The district court did not abuse its
discretion in denying Shakur’s request when he could give no good reason -- his
response strongly suggested he was merely “making a record” -- and granting the
request would have seriously obstructed orderly completion of the on-going trial.
1
Government counsel advises there is no such rule.
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B. Motion To Proceed Pro Se at Sentencing. Following Shakur’s February
2011 conviction, he filed a pro se motion to “move” counsel to stand-by status and
allow Shakur to represent himself. The district court granted this request in an April
order stating that the court “will allow the Defendant to represent himself at
sentencing” if he makes a knowing and intelligent waiver of his right to counsel. The
court returned to this issue at the start of the August sentencing hearing. Shakur
changed his position, requesting a continuance while he “received confirmation from
the attorney that I’ve been speaking with to enter his appearance [and] help me with
sentencing.” The district court advised, “today all I’m doing is sentencing -- making
sentencing guidelines calculations, hearing any evidence relevant to sentencing, and
hearing the parties’ arguments regarding appropriate punishment.” The court denied
Shakur’s last-minute request for a sentencing continuance and gave him the option of
proceeding pro se or with his retained stand-by counsel, who was present. Rejecting
the court’s advice that he would benefit from representation by counsel, Shakur opted
to represent himself.
On appeal, Shakur argues the district court should have resolved his pro se
motion before the sentencing hearing, when there would have been time to find new
counsel. The court should also have warned him more specifically about the dangers
of self-representation, resulting in a choice to proceed pro se that was not knowing
and intelligent. This Sixth Amendment issue “depends upon the particular facts and
circumstances surrounding the case, including the background, experience, and
conduct of the accused.” United States v. Marks, 38 F.3d 1009, 1015 (8th Cir. 1994),
cert. denied, 514 U.S. 1067 (1995). After careful review, we conclude the sentencing
record reflects the same circumstances confronting the district court in United States
v. Day, 998 F.2d 622, 626-27 (8th Cir. 1993), cert. denied, 511 U.S. 1130 (1994),
where we concluded the court did not abuse its discretion:
[Shakur’s] criminal record evidences a history of previous contact with
the criminal justice system sufficient to give him a general knowledge of
the dangers and disadvantages of self-representation. [Shakur’s] conduct
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at the hearing demonstrates that he had a sophisticated understanding of
the hearing’s purposes and procedure. And there is nothing in the record
to suggest that further delay and [new] counsel would have produced a
different sentence [here, mandatory life in prison].
(Citation and quotation omitted.) There was likewise no abuse of discretion here.
C. Forfeiture Issues. The superseding indictment included thirteen numbered
Forfeiture Allegations, each seeking criminal forfeiture of specific real or personal
property. In December 2010, before trial, the government moved to dismiss Forfeiture
Allegations 3, 5, and 7 relating to three parcels of real property in Kansas City.
“[C]riminal forfeiture [is] an aspect of punishment imposed following conviction of
a substantive criminal offense.” Libretti v. United States, 516 U.S. 29, 39 (1995).
Thus, when the jury returned verdicts convicting Shakur and Stockman of substantive
offenses on February 4, 2011, Rule 32.2(b) of the Federal Rules of Criminal
Procedure prescribed the procedures governing resolution of the government’s
Forfeiture Allegations. In an Appendix to this opinion, we set forth the pertinent
provisions of Rule 32.2(b), which was significantly amended in 2009, and of Rules
35(a) and 36, the relevance of which will soon become apparent.
After the guilty verdicts but before the jury was discharged,2 the district court
asked whether either defendant requested jury findings of forfeiture:
THE COURT: Now, Mr. Cornwell [counsel for Shakur], let me
start with you. I’ve been advised . . . that your client does not wish to
contest any of these forfeiture allegations?
MR. CORNWELL: That’s true, Judge. I’ve gone over each of the
. . . specific amounts, or locations [of property alleged]. I’ve indicated
to [Shakur] that I didn’t think . . . I could realistically stand in front of
2
The timing of the request violated Rule 32.2(b)(5)(A), but this violation
appears to be harmless.
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this jury, as an officer of the court, and make a cogent argument. And
. . . Mr. Shakur . . . agrees with me.
THE COURT: Okay. Mr. West [counsel for Stockman], what’s
your client’s position?
MR. WEST: We are not going to waive our right to have a
forfeiture hearing, Your Honor.
Counsel for Stockman and the government then argued to the jury the one Forfeiture
Allegation relating to Stockman -- $30,000 cash seized during a warrant search of his
residence. The jury returned a unanimous special verdict finding that this property
was not subject to forfeiture.
On February 15, Shakur filed the afore-mentioned pro se Motion To Move
Counsel to stand-by status, stating that he wanted to “file my own motions and
affidavits” relating to three Federal Rules of Criminal Procedure including Rule
32.2(c), part of the Rule that governs criminal forfeitures. Eight days later, Shakur
filed a pro se Petition “contesting” Forfeiture Allegations 1, 2, 4, 6, 8, and 10 and
seeking “to rescind” those forfeitures. On April 4, the district court entered separate
orders granting the Motion to Move Counsel, which made Shakur his own counsel for
pre-sentencing forfeiture proceedings, and summarily denying the forfeiture Petition.
The second order described the Petition as seeking “recession [sic] of the forfeiture”
without acknowledging that it “contested” six specific Forfeiture Allegations.
The April 4 order is the last docket entry relating to forfeiture until August 4,
the day of the sentencing hearing. During the four-month interim, the government
failed to file a Rule 32.2(b)(1)(A) motion seeking “forfeiture of specific property,”
and the district court violated Rule 32.2(b)(1)(B) by failing to conduct a hearing on
the Forfeiture Allegations that Shakur had contested. Most significantly, the district
court violated Rule 32.2(b)(2)(A) and (B) by not entering a preliminary order of
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forfeiture “sufficiently in advance of sentencing to allow the parties to suggest
revisions.” Indeed, the court failed to enter a preliminary order of forfeiture.
On the day of the sentencing hearing, almost one month after the hearing had
been scheduled, the government filed a belated Motion for a Preliminary Order of
Forfeiture. The motion listed all the property relating to Shakur found in the
indictment’s Forfeiture Allegations, including three parcels the government had
moved to dismiss before trial. The motion made no reference to the sentencing that
day and apparently was not served personally on Shakur; it appears to be a form
document from the government’s files, with the specific properties filled in.
At the sentencing hearing, in response to Shakur’s request to represent himself,
the district court omitted forfeiture from its summary of the issues to be considered.
Stand-by counsel, before being removed, made no mention of the government’s
untimely forfeiture motion or the district court’s failure to timely comply with the
requirements of Rule 32.2(b)(1)(A), (1)(B), 2(A), and 2(B). The only mention of
forfeiture came at the very end of the lengthy hearing when the district court stated,
after pronouncing Shakur’s sentence, “I am going to enter a forfeiture in this case.
That’s been resolved at the trial,” a clear violation of Rule 32.2(b)(1)(A) and
(b)(4)(A). The court’s Judgment in a Criminal Case, entered the next day, simply
stated, “Forfeiture will be imposed by further order of the Court,” again violating Rule
32.2(b)(4)(A).
On August 16, the government filed an Amended Motion for a Preliminary
Order of Forfeiture, stating in a footnote, without explanation, that it “is no longer
seeking forfeiture” of two of the three parcels included in its pretrial motion to
dismiss.3 On September 26, Shakur filed a pro se motion to dismiss the government’s
3
We can find no ruling on that motion, and the forfeiture order being appealed
includes one of those three parcels, a strong indication that the procedural errors we
describe prejudiced Shakur’s property rights.
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motion, arguing that the court’s failure to enter a preliminary order of forfeiture and
to incorporate that order in the judgment were non-clerical violations of Rule 32.2,
and therefore neither Rule 35 nor Rule 36 permitted amending the judgment to include
a forfeiture order. After the government responded, the district court entered a
Preliminary Order of Forfeiture on October 26, 2011, providing in relevant part:
1. Based upon the guilty verdict, the criminal forfeiture allegation
in the Superseding Indictment, and defendant Rasheed Shakur’s decision
not to contest the forfeiture counts that the properties are subject to
forfeiture, the following property is hereby forfeited to the United States
for disposition in accordance with the law, subject to the provisions of
21 U.S.C. § 853 [the court then listed all property included in the
government’s Amended Motion].
2. Furthermore, the defendant Rasheed G. Shakur shall pay to the
United States $2,990,000 as a personal money judgment.
3. Upon entry of the Order, the United States Attorney General or
his designee is authorized to seize the above-described properties in
accordance with Fed. R. Crim. P. 32.2(b)(3).
* * * * *
5. Pursuant to Fed. R. Crim. P. 32.2(b)(3), this Preliminary Order
of Forfeiture shall become final as to the defendant. [Note that Rule
32.2(b)(4)(A), not (b)(3), now governs when a preliminary forfeiture
order “becomes final as to the defendant.”]
Shakur separately appeals this forfeiture order, arguing as he did in the district court
that Rule 32.2, read in conjunction with Rules 35 and 36, deprived the court of
jurisdiction to enter a preliminary order of forfeiture more than fourteen days after
sentencing. We review this contention de novo. See United States v. Timley, 507
F.3d 1125, 1128 (8th Cir. 2007).
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Rule 32.2(b)(4) provides that a preliminary forfeiture order becomes final as to
the defendant at sentencing and “must” be included “directly or by reference” in the
final judgment. Thus, a final order of forfeiture that is not part of the judgment “has
no effect.” United States v. Bennett, 423 F.3d 271, 276 (3d Cir. 2005); accord United
States v. Ferrario-Pozzi, 368 F.3d 5, 8 (1st Cir.), cert. denied, 543 U.S. 883 (2004);
United States v. Pease, 331 F.3d 809, 814-15 (11th Cir. 2003). Rule 35(a) gives the
district court “plenary power to amend a final order in a criminal case for seven [now
fourteen] days” after sentencing. United States v. Hatcher, 323 F.3d 666, 673 (8th
Cir. 2003). Rule 35(a) does not apply here because the district court’s forfeiture
amendment was entered 83 days after Shakur’s sentencing. However, Rule 36 allows
a district court to correct a clerical error in a judgment “at any time.” Like other
circuits,4 in cases where a timely preliminary order of forfeiture was entered before
sentencing, we have held that failure to incorporate that order in the final judgment
is a clerical error for purposes of Rule 36, so long as the failure did not prejudice the
rights protected by Rule 32.2. See United States v. Koch, 491 F.3d 929, 932 (8th Cir.
2007); Hatcher, 323 F.3d at 673. The 2009 amendments to Rule 32.2(b)(4)(B) now
codify that principle.5 The government argues that the addition of a forfeiture order
to Shakur’s sentence was the correction of a clerical error permitted by Rule 36.
The most obvious problem with this argument is that no preliminary order of
forfeiture was ever entered or even approved prior to sentencing and the entry of
4
See United States v. Quintero, 572 F.3d 351, 353 (7th Cir. 2009), and cases
cited.
5
The Advisory Committee explained the change was “intended to clarify what
the district court was required to do at sentencing, and to respond to conflicting
decisions in the courts regarding the application of Rule 36 to correct clerical errors.
The new subparagraphs add considerable detail regarding the oral announcement of
the forfeiture at sentencing, the reference to the forfeiture order in the judgment and
commitment order, the availability of Rule 36 to correct the failure to include the
forfeiture order in the judgment and commitment order, and the time to appeal.” Fed.
R. Crim. Pro. 32.2(b)(4)(B) Advisory Committee Note.
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Shakur’s final judgment. Amended Rule 32.2(b)(4)(B) provides that the failure to
“include the forfeiture order” in the judgment may be corrected at any time under Rule
36. Reference to “the forfeiture order” obviously means a preliminary forfeiture order
entered in accordance with Rule 32.2(b)(2). That is consistent with our decisions in
Hatcher and Koch, where the district courts entered preliminary forfeiture orders
before sentencing. But when the court has entirely failed to enter either a preliminary
or a final forfeiture order before entry of final judgment and passage of the fourteen-
day correction period granted by Rule 35, the issue is whether the subsequent entry
of both preliminary and final forfeiture orders can be considered the remedying of
“clerical errors” under Rule 36. That proposition is certainly inconsistent with our
decision in United States v. Yakle, 463 F.3d 810, 811 (8th Cir. 2006): “Rule 32(c)(1)
directed a sentencing court to do something, and a failure to follow the rule is a legal
error, not a clerical one.”
In United States v. Martin, 662 F.3d 301, 310 (4th Cir. 2011), cert. denied, 132
S. Ct. 1953 (2012), a divided panel “refuse[d] to vacate the district court’s tardy
forfeiture orders.” Prior to the sentencing in Martin, the district court had held two
evidentiary forfeiture hearings and announced its conclusion “that the government’s
preliminary forfeiture order is fully supported.” But the court did not mention
forfeiture at sentencing nor enter a preliminary forfeiture order until one month after
sentencing. Id. at 305. Without addressing this Rule 36 issue, the panel majority
concluded the court had jurisdiction to enter the tardy orders because defendants were
on notice of the pending forfeiture:
Appellants themselves do not -- and indeed could not -- argue that they
were caught off-guard. The district court held multiple, comprehensive
hearings on forfeiture, in which both the fact of liability and the amount
were determined. The district court made clear at the end of the final
forfeiture hearing -- a mere minutes prior to sentencing Appellants -- that
it intended to enter the forfeiture order. Appellants lack of surprise is
further evidenced by the fact that they did not challenge the forfeiture
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until almost three years after the district court entered the final order of
forfeiture. Id. at 309 (citation omitted).6
Martin is factually distinguishable from this case in critical respects. Although
Shakur received notice at the end of his sentencing hearing and again in the written
judgment that the court would impose forfeiture, there was no pre-sentencing
evidentiary forfeiture hearing and no judicial pronouncement of what specific property
would be forfeited. Notice is important, but it is not the only important consideration.
“Procedural due process requires that an individual receive adequate notice and
procedures to contest the deprivation of property rights” that result from criminal
forfeiture under 21 U.S.C. § 853. United States v. Smith, 656 F.3d 821, 827 (8th Cir.
2011) (emphasis added), cert. denied, 132 S. Ct. 1586 (2012). Here, Shakur timely
contested six of the government’s Forfeiture Allegations,7 but his objections were
entirely ignored. He was denied timely determination of “the requisite nexus,” Rule
32.2(b)(1)(A); a hearing on the contested allegations, Rule 32.2(b)(1)(B); the entry of
a preliminary order “directing the forfeiture of specific property,” Rule 32.2(b)(2)(A);
6
Although the issue is not before us, we would be reluctant to follow the panel
majority in Martin, which applied the Supreme Court’s analysis of statutory deadlines
in Dolan v. United States, 130 S. Ct. 2533 (2010), to the interpretation of Rule
32.2(b), without considering the Court’s statement in United States v. Addonizio, 442
U.S. 178, 189 & n.16 (1979), that “once a sentence has been imposed, the trial judge’s
authority to modify it is” limited to Rule 35, which imposes a time period that “is
jurisdictional and may not be extended.” See also the Advisory Committee Notes to
the 1985 Amendments to Rule 35(b) and to the 1991 Amendments to Rule 35(c); both
of those rules were precursors to the present Rule 35(a).
7
The district court clearly erred in ruling otherwise in the October forfeiture
order Shakur appeals. Note that Rule 32.2(b) does not provide that submitting the
issue to the jury is the only way to “contest” a forfeiture allegation. In response to the
court’s inquiry on February 4, counsel represented that Shakur agreed not to submit
forfeiture issues to the jury, not that he waived all forfeiture objections. Thus, in his
February 23 pro se motion, Shakur timely contested six specific Forfeiture Allegations
for purposes of Rule 32.2(b)(1)(B).
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and entry of that order “sufficiently in advance of sentencing” to allow him to seek
revisions, Rule 32.2(b)(2)(B). Finally, after sentencing, he was denied inclusion of
a preliminary forfeiture order in his judgment of conviction, Rule 32.2(b)(4)(B),
which deprived him of “the right to have the entire sentence imposed as a package and
reviewed in a single appeal,” Koch, 491 F.3d at 932.
The wholesale violation of these Rule 32.2(b) mandates denied Shakur a
meaningful opportunity to contest the deprivation of his property rights, as due
process required. In these circumstances, we have no difficulty concluding that the
district court’s forfeiture order of October 26, 2011, did not merely correct a “clerical
error,” as Rule 36 permits. The violations were prejudicial legal errors, not clerical
errors. Accordingly, Addonizio makes clear the court was without power to enter that
order, and it is reversed. There can be no criminal forfeiture in this case.
III. Stockman’s Appeal
A. Sufficiency of the Evidence. Stockman argues the evidence was
insufficient to convict him of conspiring to distribute less than 50 kilograms of
marijuana, a Class D felony. See 21 U.S.C. §§ 841(a)(1), (b)(1)(D), and 846 (2006).
When considering this issue, “we will affirm if the record, viewed most favorably to
the government, contains substantial evidence . . . sufficient to prove the elements of
the crime beyond a reasonable doubt.” United States v. Hodge, 594 F.3d 614, 617-18
(8th Cir.) (quotation omitted), cert. denied, 130 S. Ct. 3401 (2010). “To establish that
a defendant conspired to distribute drugs under 21 U.S.C. § 846, the government must
prove: (1) that there was a conspiracy, i.e., an agreement to distribute the drugs; (2)
that the defendant knew of the conspiracy; and (3) that the defendant intentionally
joined the conspiracy.” United States v. Bowie, 618 F.3d 802, 812 (8th Cir. 2010)
(quotation omitted), cert. denied, 131 S. Ct. 954 and 1586 (2011).
We conclude the government’s evidence at trial was sufficient. A Shakur
associate testified that Shakur sent more than one package of marijuana from Arizona
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to Miracle Auto Care in Kansas City, where Stockman was employed. Three
witnesses testified they saw Stockman at Shakur’s residence; one recalled seeing
Stockman while delivering packages of marijuana:
I remember one occasion . . . . Rasheed took the package and he went to
the kitchen with it and opened the box up, and I guess proceeded to bag
up some marijuana into the larger sandwich bags, which my recollection
of that would be a pound. And I’ve seen him give Latoyce a couple of
those thick baggies, and then leave.
There was also testimony that officers executing a search warrant at Stockman’s
residence found a loaded semiautomatic handgun inside a dresser drawer and $30,000
cash in a bedroom closet.
Government wiretaps intercepted fifteen calls between Shakur and Stockman;
at the jury’s request, the tapes were replayed in open court during the jury’s
deliberations. During these conversations, Shakur called Stockman “Hyman Roth”
(of “The Godfather” film series); Stockman referred to Shakur as “boss” and “leader
of this crew ship.” On April 10, 2009, the two discussed something that did not arrive
that day but would probably arrive the next. On April 11, again discussing something
that had yet to arrive, Stockman asked Shakur what he had “on hand.” On April 13,
Shakur called to tell Stockman a parcel was ready for pick-up at a processing center.
Stockman asked if he needed to give his name. Shakur replied that he would try to
have the parcel delivered to Stockman so he did not have to pick it up. That
afternoon, Shakur called Stockman and asked if “the dude brought it.” When
Stockman said no, Shakur said he would check on it.
On May 14, Shakur called to ask Stockman if he went to Miracle Auto Care to
pick something up. Stockman said no and asked, “What’s the deal, the full order?”
When Shakur replied no, Stockman asked why Shakur was unable to fill the order.
Shakur answered, “It wasn’t on the ground. . . . it wasn’t no good.” Stockman asked
if it was close, and Shakur said, “not really close, you alright though. You’ll breathe.”
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Shakur told Stockman to go to the pickup point and ask for a parcel for Miracle Auto
Care. Stockman asked Shakur if it was “the place I went to last time,” and Shakur
answered, “Yep.” On June 3, Shakur told Stockman something was on the ground and
would probably arrive Tuesday. Stockman said that was “cool” because he needed
more. On June 9, Stockman told Shakur something had arrived the previous day. He
stated a man brought it to the door, to which Shakur replied, that’s what they’re
supposed to do. Stockman told Shakur he didn’t open it. Shakur replied he shouldn’t
have to. Stockman said, it’s “good lookin’ though.”
Stockman argues the government proved nothing more than his association with
Shakur, involvement with packages whose contents remained unproven, and
involvement with large sums of cash for which he was not required to provide an
innocent explanation. There was evidence Stockman worked on Shakur’s expensive
vehicle while employed at Miracle Auto Care. But “the presence of one possible
‘innocent’ explanation for the government’s evidence does not preclude a reasonable
jury from rejecting the exculpatory hypothesis in favor of guilt beyond a reasonable
doubt.” United States v. Maloney, 466 F.3d 663, 667 (8th Cir. 2006). The officers
did not find drugs or drug paraphernalia at Stockman’s residence, and his truck was
seen only a few times during the surveillance of Shakur’s residence. But there was
substantial evidence of Stockman’s knowing involvement in the conspiracy, and the
jury returned a guilty verdict of conspiring to distribute a substantially smaller
quantity than Shakur, less than 50 kilograms. “A defendant is liable for actions of a
conspiracy that were reasonably foreseeable to him.” United States v. Marquez, 605
F.3d 604, 611 (8th Cir. 2010). The government presented sufficient evidence for a
reasonable jury to find Stockman guilty of that lesser offense.
B. An Evidentiary Issue. Stockman argues the district court abused its
discretion in admitting evidence -- testimony and a video -- that officers found
$30,000 cash in a closet during the warrant search of his residence. He concedes the
cash was probative evidence of drug trafficking because drug distributors typically
deal in cash. But he argues the district court should have excluded this evidence under
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Rule 403 of the Federal Rules of Evidence, which grants the trial court discretion to
“exclude relevant evidence if its probative value is substantially outweighed by a
danger of . . . unfair prejudice.”
Here, Stockman argues, because the government offered no proof of cash
transactions between Stockman and another conspirator, or of his receipt of the cash,
it was “overwhelmingly unfair” for Stockman “to be painted with the drug distributor
brush” in this fashion. We disagree. His reliance on our Rule 404(b) precedents is
misplaced because the cash was circumstantial evidence of the charged conspiracy,
not evidence of uncharged misconduct. See, e.g., United States v. O’Dell, 204 F.3d
829, 833-34 (8th Cir. 2000). As in United States v. Logan, 54 F.3d 452, 454 (8th Cir.
1995), the presence of a large amount of cash helped establish Stockman’s
participation in the charged conspiracy. The district court did not abuse its broad
discretion in finding no unfair prejudice and admitting this evidence.8
C. A Sentencing Issue. The jury convicted Stockman of conspiracy to
distribute less than 50 kilograms of marijuana. The PSR recommended a base offense
level of 20 because he was responsible for at least 40 but less than 60 kilograms of
marijuana. See U.S.S.G. § 2D1.1(c)(10). At sentencing, the government introduced
testimony by a Kansas City postal inspector that he saw Stockman pick up a 20-pound
package from Shakur in Arizona, and testimony by a Shakur associate that, while in
Arizona, she saw Shakur shipping packages of marijuana to Miracle Auto Care in
Kansas City. Considering this testimony and the evidence presented at trial, the
8
We consider it irrelevant to the sufficiency and Rule 403 issues that the jury,
after finding Stockman guilty of the conspiracy charge, returned a special verdict
finding the $30,000 not subject to forfeiture. As the district court noted in denying
Stockman’s motion for a new trial, “The jury could have, and did, find that Defendant
was part of a conspiracy to distribute marijuana, but that the Government did not carry
its burden of proof with respect to proving the forfeiture count.” Accord United States
v. Morales, 397 F. App’x 883, 885 (4th Cir. 2010) (unpublished), cert. denied, 132 S.
Ct. 1063 (2012).
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district court found that Stockman was responsible for conspiring to distribute at least
40 kilograms of marijuana, resulting in an advisory guidelines sentencing range of 33
to 41 months in prison. The court denied Stockman’s request for a downward
variance and sentenced him to 36 months in prison.
On appeal, Stockman argues the district court’s drug quantity finding was
clearly erroneous, a procedural sentencing error that produced a substantively
unreasonable sentence. See United States v. Hull, 646 F.3d 583, 586-87 (8th Cir.
2011) (standard of review). We disagree. “Before a quantity of drugs may be
attributed to a particular defendant, the sentencing court is required to find by a
preponderance of the evidence that the transaction or activity involving those drugs
was in furtherance of the conspiracy and either known to that defendant or reasonably
foreseeable to him.” United States v. Brown, 148 F.3d 1003, 1008 (8th Cir. 1998)
cert. denied, 525 U.S. 1169 (1999); see U.S.S.G. § 1B1.3(a)(1)(B). Here, the district
court needed to approximate drug quantity for sentencing purposes because the
amount of the marijuana seized did not reflect the scale of the drug trafficking
conspiracy. See U.S.S.G. § 2D1.1, comment. (n.12). In finding Stockman responsible
for at least 40 kilograms of the more than 1000 kilograms attributed to Shakur, the
conspiracy’s leader, the court explained:
You’re going in and out of this drug house where all these other drug
dealers are at. They’re not just watching basketball over there. We’ve
heard evidence that there’s [] some deals done. Mr. Shakur takes people
into a kitchen and makes deals, sometimes out of the sight of everybody.
This was a far reaching drug conspiracy, and the jury said you’re a part
of it, Mr. Stockman.
After careful review of the record at trial and sentencing, we conclude this finding was
not clearly erroneous. There was no procedural sentencing error.
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IV. Conclusion
In United States v. Shakur, we affirm the judgment of the district court dated
August 5, 2011; we reverse the Preliminary Order of Forfeiture dated October 26,
2011; and we deny Shakur’s untimely pro se Motion in the Interests of Justice to
Preserve Legal Rights on Direct Appeal. In United States v. Stockman, we affirm the
judgment of the district court.
APPENDIX
Rule 32.2. Criminal Forfeiture
(b) Entering a Preliminary Order of Forfeiture.
(1)(A) Forfeiture Determinations. As soon as practical after a verdict or
finding of guilty . . . on any count . . . regarding which criminal forfeiture is sought,
the court must determine what property is subject to forfeiture under the applicable
statute. If the government seeks forfeiture of specific property, the court must
determine whether the government has established the requisite nexus between the
property and the offense. . . .
(B) Evidence and Hearing. . . . If the forfeiture is contested, on either party’s
request the court must conduct a hearing after the verdict or finding of guilty.
(2)(A) Contents of [Preliminary] Order. If the court finds that property is
subject to forfeiture, it must promptly enter a preliminary order of forfeiture . . .
directing the forfeiture of specific property . . . . without regard to any third party’s
interest in the property.
(B) Timing. Unless doing so is impractical, the court must enter the
preliminary order sufficiently in advance of sentencing to allow the parties to suggest
revisions or modifications before the order becomes final as to the defendant under
Rule 32.2(b)(4).
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(3) Seizing Property. The entry of a preliminary order of forfeiture authorizes
the Attorney General (or a designee) to seize the specific property subject to forfeiture
. . . and to commence proceedings that comply with any statutes governing third-party
rights. . . .
(4)(A) When Final. At sentencing -- or at any time before sentencing if the
defendant consents -- the preliminary forfeiture order becomes final as to the
defendant. . . .
(B) Notice and Inclusion in the Judgment. The court must include the
forfeiture when orally announcing the sentence . . . [and] include the forfeiture order,
directly or by reference, in the judgment, but the court’s failure to do so may be
corrected at any time under Rule 36.
(C) Time to Appeal. The time . . . to file an appeal from the forfeiture order
. . . begins to run when judgment is entered. . . .
(5)(A) Retaining the Jury. In any case tried before a jury . . . the court must
determine before the jury begins deliberating whether either party requests that the
jury be retained to determine the forfeitability of specific property if it returns a guilty
verdict.
Rule 35. Correcting or Reducing a Sentence
(a) Correcting Clear Error. Within 14 days after sentencing, the court may
correct a sentence that resulted from arithmetical, technical, or other clear error.
Rule 36. Clerical Error
After giving any notice it considers appropriate, the court may at any time
correct a clerical error in a judgment, order, or other part of the record, or correct an
error in the record arising from oversight or omission.
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