United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 09-2018

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United States of America, *

*

Appellee, *

*

 v. *

*

Marquise Laguan Bowie, *

*

Appellant. *

___________

Appeal from the United States

No. 09-2295 District Court for the 

___________ District of Minnesota.

United States of America, *

*

Appellee, *

*

v. *

*

Joe Darrell Edwards, Jr., *

*

Appellant. *

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Submitted: March 11, 2010

Filed: August 25, 2010 

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Before RILEY, Chief Judge,1

 BRIGHT and WOLLMAN, Circuit Judges.

___________

RILEY, Chief Judge.

Marquise Laguan Bowie, Joe Darrell Edwards, Jr., and ten other members of

the Minneapolis, Minnesota gang, the Rolling Thirties Bloods (RTB), were indicted

on federal drug and firearms charges. Bowie pled guilty to conspiracy to distribute

and possess with intent to distribute 50 grams or more of crack cocaine, and the

district court2

 sentenced Bowie to 175 months imprisonment. After a bench trial, the

district court found Edwards guilty of conspiracy to distribute and possess with intent

to distribute 50 grams or more of crack cocaine and conspiracy to possess firearms

during and in relation to a drug trafficking crime, and sentenced Edwards to 206

months imprisonment. Bowie and Edwards challenge their convictions and sentences

on various grounds. We affirm. 

I. BACKGROUND

On August 22, 2007, a grand jury returned a forty count indictment against

Bowie, Edwards, and other RTB gang members. Count 1 of the indictment charged

each of the co-defendants with conspiracy to distribute and possess with intent to

distribute 50 grams or more of crack cocaine from 1990 through August 2007, in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), and 846; Count 2 of the indictment

charged each of the co-defendants with conspiracy to possess firearms during and in

relation to a drug trafficking crime from 1990 to August 2007, in violation of 18

U.S.C. § 924(o). The indictment also charged Bowie with two counts, and Edwards

1

The Honorable William Jay Riley became Chief Judge of the United States

Court of Appeals for the Eighth Circuit on April 1, 2010. 

2

The Honorable Donovan W. Frank, United States District Judge for the District

of Minnesota. 

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with one count, of aiding and abetting distribution of crack cocaine, in violation of 21

U.S.C. § 841(a)(1) and (b)(1)(C), and 18 U.S.C. § 2. 

A. Bowie

On February 1, 2008, Bowie pled guilty to Count 1 of the indictment pursuant

to a written plea agreement. The district court found Bowie entered the plea

knowingly and voluntarily and accepted Bowie’s guilty plea. Over a year later, on

February 13, 2009, Bowie filed pro se motions to withdraw his guilty plea and fire his

attorney for ineffective assistance of counsel. Bowie’s counsel did not join Bowie’s

pro se motions. Bowie claimed (1) he was not aware of the full nature of the plea

agreement; (2) his attorney failed to explain the plea agreement line by line; (3) the

plea agreement did not provide an accurate portrayal of Bowie’s role in the

conspiracy; (4) Bowie only signed the agreement at the direction of his attorney;

(5) Bowie’s attorney failed to object to any portion of the plea agreement; (6) Bowie’s

attorney did not advise him of the applicable United States Sentencing Guidelines

(Guidelines or U.S.S.G.) provisions; (7) Bowie requested, but never received, a copy

of the indictment, a bill of particulars, and other documents; and (8) Bowie believed

the indictment was based on false testimony.

The district court convened a hearing to address Bowie’s motions. After

hearing from Bowie, Bowie’s attorney, and the government, the district court

determined there was “no fair and just reason to grant withdrawal of the plea at this

time,” and denied Bowie’s motion to fire his attorney. 

In March 2009, the district court sentenced Bowie. Bowie moved for a

downward variance based on the sentencing disparity between crack cocaine and

powder cocaine offenses and the resulting racial impact, and the parties addressed this

issue at the sentencing hearing. Although the district court did not vary downward

based on the crack versus powder cocaine ratio, the court gave credit to Bowie for

time served and sentenced him to 175 months imprisonment.

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B. Edwards

Edwards pled not guilty to the charges against him and filed various motions,

including a motion for a bill of particulars and a motion to dismiss the charges against

him, which the district court denied. Before trial, Edwards filed additional motions,

including a motion to compel the government to disclose certain witness statements

and a motion to dismiss the indictment. The district court granted in part, and denied

in part, Edwards’s motion for disclosure of witness statements, and denied the motion

to dismiss the indictment. 

After Edwards waived his right to a jury trial, the district court presided over

a bench trial in July and August of 2008. In September 2008, the district court found

Edwards guilty of the crack cocaine and firearms conspiracies charged in Counts 1

and 2 of the indictment and not guilty of the charge of aiding and abetting distribution

of crack cocaine. Edwards filed a motion for a judgment of acquittal, a new trial, or

to re-open, which the district court denied in its entirety. The district court initially

sentenced Edwards to two concurrent terms of 216 months imprisonment but later

reduced the terms of imprisonment to 206 months to give Edwards credit for time

served.

II. DISCUSSION

A. Bowie’s Arguments

Bowie challenges his conviction and sentence, arguing the district court

(1) failed to establish a factual basis for Bowie’s guilty plea, (2) erred in denying

Bowie’s motion to withdraw his guilty plea, and (3) erroneously refused to consider

the crack versus powder cocaine sentencing disparity in fashioning Bowie’s sentence. 

1. Factual Basis for Guilty Plea

Bowie first contends his guilty plea had an insufficient factual basis. Bowie

insists, because the case involved a complex conspiracy over a seventeen year period,

the district court’s paraphrasing of the plea agreement was insufficient to establish a

factual basis for the plea. We disagree. 

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Under Fed. R. Crim. P. 11(b)(3), “[b]efore entering judgment on a guilty plea,

the court must determine that there is a factual basis for the plea.” “A guilty plea is

supported by an adequate factual basis when the record contains ‘sufficient evidence

at the time of the plea upon which a court may reasonably determine that the

defendant likely committed the offense.’” United States v. Cheney, 571 F.3d 764, 769

(8th Cir. 2009) (quoting United States v. Gamble, 327 F.3d 662, 664 (8th Cir. 2003)). 

“We have held that facts gathered from the prosecutor’s summarization of the plea

agreement and the language of the plea agreement itself, a colloquy between the

defendant and the district court, and the stipulated facts before the district court, are

sufficient to find a factual basis for a guilty plea.” United States v. Brown, 331 F.3d

591, 595 (8th Cir. 2003) (internal citations omitted). 

The transcript of Bowie’s plea hearing reveals the district court had sufficient

information to reasonably determine Bowie likely committed the offense. The district

court stated,

I will go back to the first page of the agreement called the factual

basis. . . . 

It states that you agree that from at least 1998 through October of

2007, here in Minnesota, that you did knowingly and intentionally,

conspir[e] with other people . . . to possess with intent to distribute and

to distribute more than 50 grams of crack cocaine. Is that true, sir? 

Bowie responded, “Yes, sir.” Bowie also agreed the conspiracy involved more than

1.5, but less than 4.5, kilograms of crack cocaine. Bowie unequivocally admitted he

participated in the crack cocaine distribution conspiracy, both in writing and at the

plea hearing. In addition, Bowie admitted to the probation officer who prepared his

presentence investigation report “that he distributed up to an ‘eight-ball’ of cocaine

base per week” from the age of seventeen to twenty-five. We conclude the district

court adequately established a factual basis for Bowie’s guilty plea before entering

judgment. 

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2. Motion to Withdraw Guilty Plea

Next, Bowie argues the district court erred in denying Bowie’s motion to

withdraw his guilty plea. We review a district court’s denial of a motion to withdraw

a guilty plea for abuse of discretion. See United States v. Davis, 583 F.3d 1081, 1089

(8th Cir. 2009). “A defendant may withdraw a plea of guilty . . . after the court

accepts the plea, but before it imposes sentence if . . . the defendant can show a fair

and just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). “In

addition to a ‘fair and just reason’ for withdrawal, a district court may consider

whether the defendant asserts his legal innocence to the charge, the length of time

between the guilty plea and the motion to withdraw, and whether the withdrawal

would prejudice the government.” United States v. Teeter, 561 F.3d 768, 770 (8th

Cir. 2009). “‘A guilty plea is a solemn act not to be set aside lightly.’” Davis, 583

F.3d at 1089 (quoting United States v. Prior, 107 F.3d 654, 657 (8th Cir. 1997)). 

 

On appeal, Bowie claims he should have been allowed to withdraw his guilty

plea because he did not understand the conspiracy charge to which he pled guilty.

However, at the plea hearing, Bowie confirmed (1) no one had threatened him or

forced him to sign the plea agreement; (2) he understood he was pleading guilty to

Count I of the indictment; (3) he was aware there was a statutory mandatory minimum

of ten years imprisonment and a maximum of life imprisonment for the offense

described in Count I; (4) he agreed the conspiracy involved more than 1.5 kilograms,

but less than 4.5 kilograms, of crack cocaine; (5) he was aware his offense level and

criminal history category would determine his Guidelines range; and (6) he

understood that once he entered a guilty plea, it would be “very difficult . . . to back

out of the agreement.” Like the district court, we conclude Bowie failed to show a fair

and just reason for his request to withdraw his guilty plea more than one year after he

entered the plea. “‘Post-plea regrets by a defendant caused by contemplation of the

prison term he faces are not a fair and just reason for a district court to allow a

defendant to withdraw a guilty plea, or for this court to reverse the district court.’” Id.

(quoting Teeter, 561 F.3d at 770-71). 

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3. Bowie’s Sentence

Lastly, Bowie maintains the district court erred in refusing to consider the

sentencing disparity between crack cocaine and powder cocaine offenses in fashioning

Bowie’s sentence. We review the sentence imposed by a district court for an abuse

of discretion. See United States v. Lomeli, 596 F.3d 496, 503 (8th Cir. 2010). In so

doing, we “giv[e] due deference to the district court’s decision.” Id. (quoting United

States v. Braggs, 511 F.3d 808, 812 (8th Cir. 2008)). We must first “ensure that the

district court committed no significant procedural error, such as failing to calculate (or

improperly calculating) the Guidelines range, treating the Guidelines as mandatory,

failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on

clearly erroneous facts, or failing to adequately explain the chosen sentence.” Id.

(quoting Gall v. United States, 552 U.S. 38, 51 (2007)). If we determine the district

court did not commit procedural error, we then consider the substantive

reasonableness of the sentence. See id.

Bowie insists his sentence should be vacated because the record is silent as to

whether the district court was aware of its authority to consider the crack versus

powder cocaine sentencing disparity in sentencing Bowie. We disagree. Although

it would have been preferable for the district court to address explicitly Bowie’s

motion for a downward variance based on the sentencing disparity, we find no error

in the district court’s failure to do so. In United States v. Boyce, 564 F.3d 911, 917

(8th Cir. 2009), we held “[t]he district court need not respond to every argument

advanced by a defendant,” and where “[b]oth [counsel for the defendant] and the

government commented on the district court’s discretion to consider this disparity, . . .

we may presume the district court was aware of this policy guidance.” Furthermore,

“[w]hile the district court would have been within its discretion to consider the crack

versus powder cocaine disparity in sentencing [Bowie], the district court certainly was

not required to vary downward on this basis.” Davis, 583 F.3d at 1099. The district

court committed no procedural error and Bowie’s sentence is not substantively

unreasonable. We affirm the district court’s judgment with respect to Bowie. 

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B. Edwards’s Arguments on Appeal

We next consider Edwards’s appeal. Edwards challenges his conviction and

sentence on various grounds, arguing (1) the evidence at trial was insufficient to

support his conviction; (2) the district court admitted improper evidence at trial;

(3) prosecutorial misconduct deprived him of a fair trial; (4) the district court was

biased against him, which prejudiced the verdict; (5) the district court erred in denying

him a bill of particulars; (6) the district court erred in denying his motion to dismiss

the indictment; (7) the district court erred in failing to order disclosure of exculpatory

evidence; and (8) the district court abused its discretion in sentencing him. 

1. Sufficiency of the Evidence

Edwards first claims the government failed to present sufficient evidence to

support the district court’s findings beyond a reasonable doubt that Edwards

participated in the crack cocaine and firearms conspiracies. Edwards insists his

convictions were based solely on irrelevant RTB gang evidence, and vague and

incredible testimony from RTB members seeking lower sentences. 

“In reviewing the sufficiency of the evidence after a bench trial, we apply the

same standard that we apply when reviewing a jury verdict.” United States v.

Vaughn, 410 F.3d 1002, 1004 (8th Cir. 2005). “‘We review the sufficiency of the

evidence de novo, viewing evidence in the light most favorable to the government,

resolving conflicts in the government’s favor, and accepting all reasonable inferences

that support the verdict.’” United States v. Lockett, 601 F.3d 837, 840 (8th Cir. 2010)

(quoting United States v. Washington, 318 F.3d 845, 852 (8th Cir. 2003)). “When

considering a challenge to a conspiracy conviction based upon sufficiency of the

evidence, ‘we will affirm if the record, viewed most favorably to the government,

contains substantial evidence supporting the jury’s verdict, which means evidence

sufficient to prove the elements of the crime beyond a reasonable doubt.’” United

States v. Hodge, 594 F.3d 614, 617 (8th Cir. 2010) (quoting United States v. Lopez,

443 F.3d 1026, 1030 (8th Cir. 2006) (en banc)). A verdict will only be overturned “if

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no reasonable jury could have found [the defendant] guilty beyond a reasonable

doubt.” United States v. Gray, 369 F.3d 1024, 1028 (8th Cir. 2004).

“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. Hernandez, 569 F.3d

893, 896 (8th Cir. 2009) (quoting United States v. Jiminez, 487 F.3d 1140, 1146 (8th

Cir. 2007)). “To establish that a defendant conspired to use, carry or possess a firearm

in violation of [18 U.S.C.] § 924(c) and (o), the Government must prove: (1) that there

was a conspiracy, i.e., an agreement either to use or carry a firearm during and in

relation to a drug trafficking crime or to possess a firearm in furtherance of a drug

trafficking crime; (2) that the defendant knew of the conspiracy; and (3) that the

defendant intentionally joined the conspiracy.” United States v. Saddler, 538 F.3d

879, 889 (8th Cir. 2008). “A formal agreement is not required to create a conspiracy,

and the existence of a conspiracy can be proved by direct or circumstantial evidence.” 

United States v. Williams, 534 F.3d 980, 985 (8th Cir. 2008). 

The district court issued a thirty-four page memorandum with findings of fact

and conclusions of law, finding Edwards guilty of both the crack cocaine and firearms

conspiracies. The district court found Edwards joined the RTB in 1983 when he was

approximately 12 years old, and he held the status of an “Original Blood” or an

“Original Gangster,” meaning he was an older, generally more respected member of

the gang. The court heard evidence that RTB members “who seriously identify with

the gang’s values and rules” were called “riders.” While incarcerated, Edwards wrote

letters indicating Edwards viewed himself as a rider. The district court determined the

RTB gang members “established themselves as the exclusive crack cocaine dealers

within their territory” in South Minneapolis. The court heard testimony there was an

agreement and understanding among RTB members to sell drugs in their territory and

ensure the territory was protected from rival gangs. The district court found the RTB

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members possessed and used firearms to facilitate drug transactions and to protect

their territory. 

The district court specifically found credible testimony that Edwards was a part

of the agreement or understanding among the RTB members and Edwards personally

possessed and sold crack cocaine and possessed firearms in connection with his RTB

gang activities. In finding Edwards guilty of the conspiracy charges, the district court

clarified,

The Court does not base its findings upon [Edwards’s] membership in or

association with a particular group. The Court’s findings are based on

evidence that [Edwards] was a participant in an agreement or

understanding among the members of [RTB] to control their territory for

the exclusive sale of crack cocaine, using and through the possession of

firearms, and [Edwards’s] knowing support for, and activities in

furtherance of, that agreement.

On appeal, Edwards relies largely on the fact he was imprisoned during the vast

majority of the alleged seventeen-year conspiracy to support his argument that there

is insufficient evidence to support his convictions. “In order to withdraw from a

conspiracy, a defendant ‘must demonstrate that he took affirmative action to withdraw

from the conspiracy by making a clean breast to the authorities or by communicating

his withdrawal in a manner reasonably calculated to reach his coconspirators.’” 

United States v. Jackson, 345 F.3d 638, 648 (8th Cir. 2003) (quoting United States v.

Zimmer, 299 F.3d 710, 718 (8th Cir. 2002)). “A cessation of activities, alone, is not

sufficient to establish a withdrawal from the conspiracy.” Id. The district court

acknowledged Edwards was incarcerated for a large portion of the alleged conspiracy;

however, the court found Edwards maintained his gang membership and continued to

support the gang’s goals while in prison. The district court further found Edwards

never “took any affirmative steps to withdraw from the conspiracy during the time he

was incarcerated or at any other time.” The district court’s findings that Edwards’s

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activities while in prison and during the short periods of time he was out of jail were

inconsistent with withdrawal are supported by sufficient evidence in the record and

are reasonable. 

Next Edwards suggests his conviction cannot stand because he was convicted

based upon guilt by association. Edwards concedes the government may have

demonstrated other RTB members were involved in drug distribution, but he insists

the government did not present sufficient evidence to prove Edwards was involved in

the drug trafficking and firearms conspiracies. Edwards insists the only evidence

tying him to drug trafficking and firearm activity is vague, uncorroborated testimony

from cooperating witnesses, and Edwards goes to great lengths to discredit the

cooperating witnesses’ testimony. 

Four RTB members testified against Edwards. Soloman Shannon and Calvin

Ferguson each testified they personally observed Edwards sell crack cocaine and

possess or talk about possessing a firearm. George Dixon and Jomoy Lee both

reported they provided Edwards with crack cocaine, knowing Edwards intended to sell

it. The district court acknowledged these four witnesses “could not identify the

specific date or dates on which they gave or sold drugs to [Edwards] or saw [Edwards]

selling drugs,” but the district court explained this was not surprising because

“individual instances of drug sales would not be an especially memorable event” for

an RTB member. The district court also observed, “it seems likely . . . that if the gang

members were making up evidence against [Edwards], they would have said things

that were more incriminating for [Edwards].” 

“It is well-established that ‘the uncorroborated testimony of an accomplice is

sufficient to sustain a conviction if the testimony is not otherwise incredible or

unsubstantial on its face.’” Vaughn, 410 F.3d at 1004 (quoting United States v. Dunn,

494 F.2d 1280, 1281-82 (8th Cir. 1974)). “It is the function of the [trier of fact], not

an appellate court, to resolve conflicts in testimony or judge the credibility of

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witnesses.” Hernandez, 569 F.3d at 897 (quoting United States v. Harrison, 671 F.2d

1159, 1162 (8th Cir. 1982)). “Such credibility findings are virtually ‘unreviewable

on appeal.’” Id. (quoting Boyce, 564 F.3d at 916) (internal marks omitted). The

district court expressly found Shannon, Dixon, Ferguson and Lee gave credible

testimony concerning Edwards’s involvement in the conspiracies to distribute crack

cocaine and possess firearms in relation to the drug trafficking. The district court was

in the best position to observe the witnesses’ demeanor and assess their credibility,

and we will not disturb the district court’s reasoned credibility determinations. 

“[V]iewing evidence in the light most favorable to the government, resolving

conflicts in the government’s favor, and accepting all reasonable inferences that

support the verdict,” Lockett, 601 F.3d at 840, we find the government presented

sufficient evidence for a reasonable jury to find Edwards guilty beyond a reasonable

doubt of participating in the crack cocaine and firearms conspiracies. See Gray, 369

F.3d at 1028; see also Lopez, 443 F.3d at 1030 (“[A] defendant may be convicted for

even a minor role in a conspiracy, so long as the government proves beyond a

reasonable doubt that he or she was a member of the conspiracy.”). 

2. Evidentiary Issues

Edwards next argues the district court abused its discretion “by admitting

evidence of 21 incidents involving RTB members that had nothing to do with Mr.

Edwards” and by admitting “Edwards’ prison correspondence, notes and photographs

allegedly related to the RTBs that had nothing to do with drugs or firearms.” Edwards

maintains the prejudicial effect of this evidence substantially outweighed any

probative value. Edwards suggests the government attempted to equate Edwards’s

RTB membership with criminality, and “[t]he district court heavily relied on the

inflammatory gang evidence” in convicting Edwards of the crack cocaine and firearms

conspiracies. Edwards makes general arguments in support of his position, but directs

us to only one specific incident and one specific piece of evidence that he believes

were erroneously admitted. 

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“We review a district court’s evidentiary rulings for abuse of discretion.” 

United States v. Smith, 591 F.3d 974, 979 (8th Cir. 2010). “‘We will not reverse a

judgment on the basis of erroneous evidentiary rulings absent a showing that those

rulings had a substantial influence on the jury’s verdict.’” Id. (quoting United States

v. Haskell, 468 F.3d 1064, 1074 (8th Cir. 2006)). “Under [Fed. R. Evid.] 403,‘great

deference’ is given to a district court’s balancing of the relative value of a piece of

evidence and its prejudicial effect.” Jiminez, 487 F.3d at 1145 (quoting United States

v. Lupino, 301 F.3d 642, 646 (8th Cir. 2002)); see Fed. R. Evid. 403 (“Although

relevant, evidence may be excluded if its probative value is substantially outweighed

by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or

by considerations of undue delay, waste of time, or needless presentation of

cumulative evidence.”). “Moreover, the discretion accorded lower courts in

determining admissibility of evidence is particularly broad in a conspiracy trial.”

United States v. Willis, 997 F.2d 407, 414 (8th Cir. 1993) (quoting United States v.

Kroh, 915 F.2d 326, 331 (8th Cir. 1990) (en banc)) (internal marks omitted).

In the district court’s findings of fact and conclusions of law, the court

explained its findings were not based on Edwards’s RTB membership; instead, the

court made an explicit finding that Edwards was a participant in the RTB members’

agreement or understanding to sell crack cocaine and to possess firearms in

connection with the drug trafficking. “In a conspiracy case, ‘each member of a

conspiracy may be held criminally liable for any substantive crime committed by a

co-conspirator in the course and furtherance of the conspiracy, even though those

members did not participate in or agree to the specific criminal act.’” United States

v. Johnston, 353 F.3d 617, 624 (8th Cir. 2003) (quoting United States v. Escobar, 50

F.3d 1414, 1420 (8th Cir. 1995)). Such evidence is relevant when it “illustrate[s] the

extent of the conspiracy’s operation.” Id. We also have a little more confidence on

close evidentiary issues when the district court is the trier of fact and will itself sort

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through the evidence in arriving at a verdict. The district court did not abuse its

discretion in admitting evidence relating to activities of Edwards’s co-conspirators. 

3. Prosecutorial Misconduct

Edwards claims the government engaged in prosecutorial misconduct by asking

leading questions twenty-four times, intimidating Edwards’s supporters in the

courtroom, and referring to the stricken testimony of one of Edwards’s witnesses in

the government’s written closing argument. 

To obtain a reversal based on prosecutorial misconduct to which there

was proper objection, a defendant must show that (1) the prosecutor’s

remarks or conduct were improper, and (2) the remarks or conduct

affected the defendant’s substantial rights so as to deprive him of a fair

trial. If the remarks were improper, then we determine whether they

deprived the defendant of a fair trial by examining the cumulative effect

of the misconduct, the strength of the properly admitted evidence of the

defendant’s guilt, and any curative actions taken by the trial judge. 

United States v. New, 491 F.3d 369, 377 (8th Cir. 2007) (internal citation omitted).

“The ultimate question is ‘whether the prosecutor’s comments, if improper, so

infected the trial with unfairness as to make the resulting conviction a denial of due

process.’” Id. (quoting United States v. Mullins, 446 F.3d 750, 757 (8th Cir. 2006)). 

“[A]lthough Federal Rule of Evidence 611(c) generally discourages the use of

leading questions on direct [examination], it is not automatically improper for the

prosecutor to ask such questions or for the district court to permit their use.” United

States v. Fenner, 600 F.3d 1014, 1022 (8th Cir. 2010). Leading questions on direct

examination are permitted “to develop the witness’ testimony” and to inquire of a

hostile or adverse witness. Fed. R. Evid. 611(c). “[T]he trial judge has wide latitude

in permitting leading questions because he or she is in the best position to determine

the need for them.” Fenner, 600 F.3d at 1022. Edwards alleges the government

continued to ask leading questions despite the fact the district court sustained

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Edwards’s objection to a leading question on at least twenty-four occasions, and the

cumulative effect of the leading questions tainted the district court’s verdict and

warrants reversal. We disagree. Edwards’s trial lasted nine days, and we cannot say

twenty-four instances of leading questions over the course of the trial so affected

Edwards’s substantial rights as to deprive him of a fair trial. 

Similarly we find no prosecutorial misconduct based on the government’s

questioning of Ferguson. During Ferguson’s direct examination, counsel for the

government left the podium to point out people sitting in the gallery of the courtroom

and asked Ferguson whether he recognized them. The district court asked counsel to

return to the front of the courtroom, but allowed the questioning to continue. Counsel

for the government asked Ferguson why he thought the people were in the courtroom,

and Ferguson responded, “Probably to intimidate me or getting me to change what I’m

saying about [Edwards].” The people in the back of the courtroom were Edwards’s

brothers, cousin, and nephews. The question as framed was speculative and lacked

foundation as to why the people actually were present, but was relevant and

admissible to show Ferguson’s state of mind in recognizing the people present. The

district court found no misconduct and denied Edwards’s motion to dismiss the case

based on deprivation of Edwards’s Sixth Amendment rights. We agree with the

district court. Assuming, without deciding, the government’s conduct in pointing out

specific members of the gallery was improper, we would nevertheless conclude this

conduct did not deprive Edwards of a fair trial. 

Finally, Edwards claims prosecutorial misconduct based on the government’s

reference in its written closing argument to the stricken testimony of one of Edwards’s

witnesses, Armel Green. Four days before the government submitted its written

closing argument, the district court entered an ordering striking Green’s testimony in

its entirety for lack of credibility and probative value. The government’s written

closing argument addressed Green’s testimony, urging the district court, “Greene’s

testimony should not be stricken from the record, but it should be disregarded in its

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entirety, because it is false.” We find no misconduct. The district court was aware of

its decision to strike Green’s testimony, saying “Green’s testimony [is] so lacking in

credibility . . . [it] would have had no bearing on this Court’s decision.” The

government’s reference to the testimony was harmless. 

4. Judicial Bias

Edwards claims he did not receive a fair trial because the district court was

biased against him. According to Edwards,

[t]he district court judge established that he was personally biased

against Mr. Edwards through the combination of [the court’s] criticism

of Edwards’ trivial act of greeting court staff by her first name, anger

expressed towards counsel during the proceedings, and concluding the

trial with a personal anecdote of how he got revenge on people who were

rude. 

Edwards failed to raise the issue of judicial bias before the district court. We 

thus review this claim for plain error. See United States v. Sypolt, 346 F.3d 838, 839

(8th Cir. 2003). “In order to prevail, [a defendant] must show that the district court’s

failure to recuse was clearly improper under the law, affected his substantial rights,

and seriously affected the fairness, integrity, or public reputation of judicial

proceedings.” Id. at 839 (quoting United States v. Olano, 507 U.S. 725, 736 (1993))

(internal marks omitted). 

The Supreme Court has specifically held that “expressions of impatience,

dissatisfaction, annoyance, and even anger” are not sufficient to trigger

[28 U.S.C. § 455(a)]. And where a judge’s opinions are based on “facts

introduced or events occurring in the course of the current proceedings,”

those opinions warrant recusal . . . only if they “display a deep-seated

favoritism or antagonism that would make fair judgment impossible.”

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Id. (quoting Liteky v. United States, 510 U.S. 540, 555-56 (1994)) (internal citation

omitted). 

Edwards admits “the district court’s expressions of bias in the instant case were

limited and subtle.” This admission undermines any claim of judicial bias. Having

reviewed the record, we conclude the judicial conduct of which Edwards complains

simply did not rise to the level of judicial bias and certainly did not affect the fairness

of Edwards’s trial. 

5. Bill of Particulars

Edwards claims the district court erred in denying his motion for a bill of

particulars. Edwards maintains, because the indictment was twenty-seven pages long,

involved twelve defendants and two seventeen year conspiracies, and provided no

information on specific acts by Edwards, he was entitled to a bill of particulars. The

magistrate judge3

 denied the motion, and the district court affirmed.

“We review a district court’s denial of a motion for a bill of particulars for an

abuse of discretion.” United States v. Livingstone, 576 F.3d 881, 883 (8th Cir. 2009).

“A bill of particulars serves to inform the defendant of the nature of the charge against

him with sufficient precision to enable him to prepare for trial, to avoid or minimize

the danger of surprise at trial . . . .” United States v. Hernandez, 299 F.3d 984, 989-90

(8th Cir. 2002). 

An indictment will ordinarily be held sufficient unless it is so defective

that it cannot be said, by any reasonable construction, to charge the

offense for which the defendant was convicted. To establish reversible

error from the denial of a motion for a bill of particulars, a defendant

3

The Honorable Janie S. Mayeron, United States Magistrate Judge for the

District of Minnesota. 

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must show that he was actually surprised at trial and suffered prejudice

from the denial. 

United States v. Fleming, 8 F.3d 1264, 1265 (8th Cir. 1993) (internal citation

omitted). Having reviewed the indictment and the magistrate judge’s order, we

conclude the indictment was sufficient to enable Edwards to prepare for trial and the

magistrate judge did not abuse her discretion in denying Edwards’s motion. Edwards

also fails to show any actual surprise at trial or any prejudice. 

 

6. Motion to Dismiss the Indictment

Edwards claims the district court erred in denying his motion to dismiss the

indictment because the indictment was obtained solely on general hearsay testimony

of a police officer. We disagree. 

“[T]he Constitution does not prohibit the use of hearsay testimony in grand jury

proceedings, and even an indictment based exclusively on hearsay may be valid.”

United States v. Hintzman, 806 F.2d 840, 843 (8th Cir. 1986) (internal citations

omitted). “‘The remedy of dismissal for an indictment due to grand jury abuse is

appropriate only upon a showing of actual prejudice to the accused.’” United States

v. Wilson, 565 F.3d 1059, 1070 (8th Cir. 2009) (quoting United States v. Kouba, 822

F.2d 768, 774 (8th Cir. 1987)). “A petit jury’s subsequent guilty verdict not only

means that there was probable cause to believe that the defendant was guilty as

charged, but that he was in fact guilty as charged beyond a reasonable doubt.” Id.

(quoting Kouba, 822 F.2d at 774) (internal marks omitted). Assuming for argument’s

sake there was an error at the grand jury level in obtaining the indictment, any error

was harmless because the district court found there was sufficient evidence to convict

Edwards beyond a reasonable doubt. 

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7. Witness Statements

Next, Edwards claims the district court abused its discretion in declining to

order the prosecution to disclose the statements of witnesses who were interviewed

by the prosecution and did not initially identify Edwards as being involved in the

conspiracy. Before trial, Edwards claimed he was entitled to disclosure of these

statements pursuant to Brady v. Maryland, 373 U.S. 83 (1963), because the witnesses’

failure to identify Edwards was exculpatory evidence. After an in camera inspection

of the witness statements, the district court ordered disclosure of a portion of one of

the witness statements and found the others did not contain exculpatory evidence. 

Edwards suggests this ruling was in error and speculates he might have been entitled

to further disclosures. 

“Mere speculation that a government file may contain Brady material is not

sufficient to require a remand for in camera inspection, much less reversal for a new

trial. A due process standard which is satisfied by mere speculation would convert

Brady into a discovery device and impose an undue burden upon the district court.” 

United States v. Pou, 953 F.2d 363, 366-67 (8th Cir. 1992) (quoting United States v.

Navarro, 737 F.2d 625, 631 (7th Cir. 1984)). Here the district court discussed the

matter with the parties, reviewed the statements, and ordered disclosure of a portion

of one statement. Edwards’s argument is mere speculation, and, therefore, he fails to

meet his burden to prove “there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have been different.”

United States v. Bagley, 473 U.S. 667, 682 (1985).

8. Sentence

Finally, Edwards claims the district court imposed an unreasonable sentence. 

Edwards acknowledges he received a below Guidelines sentence, but insists the

district court erred in (1) failing to find Edwards was entitled to a role reduction based

on his minimal/minor participation pursuant to U.S.S.G. § 3B1.2,(2) declining to vary

downward based on the sentencing disparity between crack and powder cocaine

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offenses, (3) failing to consider the sentencing disparity among Edwards’s codefendants under 18 U.S.C. § 3553(a)(6), and (4) failing to give Edwards sufficient

credit for time served.

We review the district court’s interpretation of the Guidelines de novo, and we

review for clear error the district court’s application of the Guidelines to the facts. See

United States v. Rutherford, 599 F.3d 817, 820 (8th Cir. 2010). “We review the

district court’s refusal to grant a minor role adjustment for clear error.” United States

v. Price, 542 F.3d 617, 622 (8th Cir. 2008). The district court found “Edwards’ role

wasn’t substantially less than most of the people” in the conspiracy. Based on the

record in the case, we cannot say the district court clearly erred in denying Edwards

a minor role reduction. 

Like Bowie, Edwards claims the district court abused its discretion in refusing

to consider the sentencing disparity between powder and crack cocaine offenses. For

the reasons we stated in our discussion of Bowie’s challenge to his sentence, we

conclude the district court did not abuse its discretion in declining to vary downward

based on Kimbrough. 

Edwards next protests the district court failed to give appropriate consideration

to § 3553(a)(6) and created an unwarranted sentencing disparity between Edwards and

other members of the conspiracy. Edwards acknowledges his co-defendants were

given reductions for cooperation, but he urges the disparity was not justified because

the other defendants were more culpable and dangerous. However, Edwards was not

similarly situated to his co-defendants who pled guilty and cooperated with the

government. See United States v. Cain, 487 F.3d 1108, 1115 (8th Cir. 2007) (finding

a defendant was not similarly situated to his co-defendants because they pled guilty

and cooperated with the government). Our review of the record reveals no abuse of

discretion in the district court’s consideration of the § 3553(a) sentencing factors. 

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Finally, Edwards claims the district court failed to credit the time he had served. 

The district court reviewed Edwards’s request and amended the judgment twice,

ultimately reducing Edwards’s sentence of 216 months to 206 months imprisonment. 

Edwards objects to the fact the district court did not give him further credit for time

served on supervised release violations, but he provides no authority for such a result

and no evidence concerning the days for which he should have been credited. 

Edwards has not shown the district court abused its considerable discretion in

fashioning an appropriate sentence. 

III. CONCLUSION

We affirm the judgments of the district court and Bowie’s and Edwards’s

sentences. 

BRIGHT, Circuit Judge, concurring in part and dissenting in part.

Although I concur in all other respects, I respectfully dissent from the

majority’s affirmance of these crack cocaine sentences. I believe that the sentencing

record in Bowie’s case insufficiently resolves the important issue of whether the

sentencing court considered Bowie’s request for a variance based on the crack/powder

disparity present in the guidelines. As for Edwards, I believe vacation and remand is

appropriate in light of the recently enacted law that partially remedies the

crack/powder sentencing disparity. 

1. Defendant Bowie

The sentencing issue in Bowie’s appeal concerns whether a district court need

respond to a defendant’s principal and potentially meritorious argument for a variance

from the guidelines. The majority concludes it need not. I disagree. 

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Bowie squarely presented the district court with a request to vary from the crack

cocaine guidelines on the basis of their inequity with the guidelines for powder

cocaine. In a well-written six-page motion, defense counsel briefed the district court

on the follies and injustices of the crack cocaine guidelines. (Def. Mot. for Downward

Variance (Feb. 17, 2009)). The memorandum discussed the court’s discretion to vary

and explained that the Minnesota Supreme Court (the state in which Bowie was

prosecuted) concluded two decades ago that the inequitable crack/powder ratio denied

African Americans equal protection under the law. See State v. Russell, 477 N.W.2d

886, 889 (Minn. 1991).

Defense counsel acknowledged the seriousness of crimes perpetrated by street

gangs, but asked the court for the individualized consideration that § 3553(a) requires. 

Bowie again requested a variance at the sentencing hearing and argued for imposition

of the ten-year mandatory minimum rather than a sentence based on the crack cocaine

guidelines. (Sent. Tr. at 16-20 (Mar. 12, 2009)). The government acknowledged that

the sentencing court could, but need not, vary based on the disparity. (Sent. Tr. at 38).

The Supreme Court has recognized that application of the crack cocaine

guidelines presents special problems. As explained in Kimbrough, the original crack

cocaine guidelines “did not take account of empirical data and national experience.” 

Kimbrough v. United States, 552 U.S. 85, 109-110 (2007) (quotation omitted). And

the Commission’s 2007 attempt to remedy the disparity provided only a “partial

remedy for the problems generated by the crack/powder disparity . . . .” Id. at 100

(quotation omitted). The Court further explained, “[i]ndeed, the Commission itself

has reported that the crack/powder disparity produces disproportionately harsh

sanctions, i.e., sentences for crack cocaine offenses ‘greater than necessary’ in light

of the purposes in sentencing set forth in § 3553(a).” Id. at 110. This may occur

“even in a mine-run case.” Id.

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Although the district court discussed the § 3553(a) factors, it said nothing in

rejecting Bowie’s request for a downward variance from guidelines that the Supreme

Court has described as not exemplifying “the Commission’s exercise of its

characteristic institutional role.” Id. at 109. 

The majority states, “[a]lthough it would have been preferable for the district

court to address explicitly Bowie’s motion for a downward variance based on the

sentencing disparity, we find no error in the district court’s failure to do so.” Maj. op.

at 7. To support its holding, the majority relies on United States v. Boyce, 564 F.3d

911, 917 (8th Cir. 2009), where this court stated, “[t]he district court need not respond

to every argument advanced by a defendant,” and where “[b]oth [defense counsel] and

the government commented on the district court’s discretion to consider this disparity,

. . . we may presume the district court was aware of this policy guidance.” 

I strongly disagree with such a presumption in light of Bowie’s well-presented

request for a variance from the problematic crack cocaine guidelines and the

importance of the issue. First, says the majority, since the parties argued for a

variance, let’s presume the court was aware of it. Next, the majority suggests that

from silence we may infer the rejection of Bowie’s motion. Finally, the majority

affirms this questionable logic with the easy statement that a court need not respond

to every argument advanced by a defendant. 

It should not be this way. In United States v. Roberson, the district court

“ignored” the defendant’s arguments for a lighter sentence based on the crack/powder

disparity. 517 F.3d 990, 995 (8th Cir. 2008). This court vacated and remanded for

resentencing. Id. The Roberson court noted that in a previous case, we remanded

where “we could not determine from the record whether the district court was aware

of its authority to grant a downward departure . . . .” Id. (citing United States v. Lewis,

249 F.3d 793, 795 (8th Cir. 2001)). And in Roberson, the district court’s silence left

“unclear” its reasons for not varying from the crack cocaine guidelines. Id. Likewise

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here, we simply do not know whether the busy district court chose not to exercise its

discretion, or, presented with numerous arguments at sentencing, simply neglected to

consider Bowie’s motion. 

The Seventh Circuit has explained why district courts need at least “address all

of a defendant’s principal arguments.” United States v. Villegas-Miranda, 579 F.3d

798, 801 (7th Cir. 2009). “We cannot have much confidence in the judge’s considered

attention to the factors in this case, when he passed over in silence the principal

argument made by the defendant even though the argument was not so weak as not to

merit discussion . . . .” Id. at 801-02 (quoting United States v. Cunningham, 429 F.3d

673, 679 (7th Cir. 2005)). “A judge who fails to mention a ground of recognized legal

merit . . . is likely to have committed an error or oversight. Even if the sentencing

court stated convincing reasons for the sentence it imposed . . . silence in response to

a defendant’s principal argument [is not] harmless error because we can never be sure

of what effect it had, or could have had, on the court’s decision.” Id. at 802 (quotation

and parenthesis omitted).

To be sure, our circuit does not require a sentencing court to respond to every

argument advanced by a defendant. See Roberson, 517 F.3d at 995. But neither does

the Seventh Circuit. See Cunningham, 429 F.3d at 678. Bowie’s request for a

variance on the basis of the crack/powder disparity in the guidelines merited

discussion, and we should not affirm the district court’s silence on this important

issue. The presentation by defense called for reasons, not silence. 

2. Defendant Edwards

With respect to Edwards, the district court explicitly explained its decision not

to exercise its discretion to vary from the crack cocaine guidelines. Relying on the

crack cocaine guidelines, the district court imposed a 206-month sentence (17 years

2 months), arrived at by starting at the guidelines recommended sentence of 360-

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months’ imprisonment (30 years) and giving Edwards various credit for time served. 

However, I believe vacation and remand of Edwards’s sentence is appropriate in light

of the recent Congressional enactment signed into law on August 3, 2010, which

reduces the crack/powder disparity. See Fair Sentencing Act of 2010, Pub. L. No.

111-220 (Aug. 3, 2010). The district court here applied the guidelines ratio, but in

light of Congressional actions, the ratio should be reduced, even as low as a 1 to 1

ratio. Given this long overdue and excellent change in the law, Edwards’s sentence

as well as Bowie’s should be vacated and remanded. 

______________________________

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