The Honorable Ann D. Montgomery, United States District 1

Judge for the District of Minnesota, sitting by designation.

 

No. 96-2738

 

United States of America, * 

 *

Appellee, * 

 *

v. *

 *

Donald E. McCracken, II, *

 *

Appellant. *

 

Appeals from the United States

No. 96-2743 District Court for the

___________ Western District of Missouri.

United States of America, * 

 *

Appellee, * 

 *

v. *

 *

Donald E. McCracken, III, *

 *

Appellant. *

 

Submitted: January 15, 1997

Filed: April 2, 1997

 

Before WOLLMAN, and HANSEN, Circuit Judges, and MONTGOMERY, District

1

Judge.

 

MONTGOMERY, District Judge.

Donald E. McCracken, II and Donald E. McCracken, III, appeal their

convictions and sentences on drug charges. Both defendants challenge the

sufficiency of the evidence to support their 
The Honorable Fernando J. Gaitan, Jr., United States 2

District Judge for the Western District of Missouri.

-2-

convictions and the admission into evidence of statements made by Donald

E. McCracken, II. Defendants also contest the district court’s2

application of the two-level enhancement for possession of firearms in

connection with a drug offense pursuant to U.S.S.G. § 2D1.1(b)(1). Upon

review, we affirm the convictions and the sentences.

I. BACKGROUND

On August 27, 1994, Detective Jeffery Seever, working in an

undercover capacity for the Jackson County Drug Task Force, was introduced

by a contact to Scott Walker for the purposes of purchasing

methamphetamine. Walker made a brief phone call and then informed

Detective Seever that he could obtain methamphetamine. Walker then

directed Detective Seever to drive to 11505 Grandview, Kansas City,

Missouri.

Detective Seever and Walker entered the house at 11505 Grandview

where defendant Donald E. McCracken, III (“McCracken Junior”) was seated

on a couch in the living room. McCracken Junior’s girlfriend, Carmen

Radford, was also present in the house. Walker sat on a chair next to

McCracken Junior, while Detective Seever sat on the other side of the room.

Walker and McCracken Junior spoke to each other in quiet tones such that

Detective Seever could not overhear their conversation. McCracken Junior

and Walker then left the living room and walked toward the southeast part

of the residence.

A short time later, Walker returned to the living room and presented

to Detective Seever a substance which Walker represented 
-3-

to be a half-ounce of methamphetamine. Walker informed Detective Seever

that the cost of the methamphetamine was $1,150. Detective Seever paid

Walker $650 for his portion of the methamphetamine and Walker returned to

the southeast part of the house. Walker eventually returned to the living

room with a blue parcel later determined to be methamphetamine wrapped in

blue gauze.

Detective Seever and Walker were leaving the residence when Defendant

Donald E. McCracken, II (“McCracken Senior”) and his girlfriend, Melissa

Fox, arrived and entered the residence. McCracken Senior asked Detective

Seever and Walker if they had noticed the police car parked in the vicinity

of the house. McCracken Senior then advised Detective Seever and Walker

that if the police pursued them, they should flee in order to dispose of

the methamphetamine. McCracken Senior recommended that “it’s better to

have a car charge than a Class A or B felony drug charge.”

Detective Seever and Walker left the residence and Detective Seever

received his portion of the methamphetamine. Detective Seever returned to

the Task Force headquarters where the substance was tested and proved to

be 7.7 grams of methamphetamine.

Subsequently, on August 29, 1994, Detective Seever obtained a search

warrant for 11505 Grandview. The search warrant was executed on September

2, 1994. Six individuals were present at the residence during the search,

including McCracken Junior, Melissa Fox and Carmen Radford. McCracken

Senior was not present during the search. McCracken Junior was in the

living room when officers first entered the residence. From the living

room, officers recovered a loaded 9mm pistol and six grams of

methamphetamine.
-4-

Officers searched the southwest bedroom of the house where they

recovered two loaded firearms: (1) an assault rifle mounted over the

archway of the bedroom door with one round in the chamber and a magazine

holding 31 rounds, and (2) a .45 caliber handgun in a holster nailed to the

headboard of the bed containing a magazine loaded with six rounds.

Officers also recovered from a heater located a few feet from the bed, four

small packages wrapped in blue gauze containing a combined total of 110

grams of methamphetamine. In the bedroom closet officers recovered a box

with the name “Don McCracken” on it, as well as men’s clothing bearing

emblems such as “Shadow,” “S and G” and “FYVM.” Detective Seever’s

investigation ultimately determined that “Shadow” was a nickname for

McCracken Senior, and that “S and G” and “FYVM” were abbreviations

relating to McCracken Senior’s business. Officers also discovered

photograph albums containing pictures of McCracken Senior as well as a

photograph of Melissa Fox on the headboard of the bed.

Officers also searched the northeast bedroom of the residence.

Officers discovered a pair of jeans containing $1,420 in United States

currency and a billfold holding identification documents of McCracken

Junior. The bedroom closet contained two safes. One safe held more than

$30,000 in United States currency. The money was divided into three

bundles wrapped in blue gauze. The safe also contained an envelope marked

“Pistol,” a nickname for McCracken Junior, and documents with the name of

“Donald E. McCracken, II” on the front cover as well as a key chain marked

“Shadow Motorcycle.” The second safe contained seven to eight collector’s

guns. A search of the southeast bedroom revealed a set of electronic

scales and multiple rolls of small plastic bags. A safe in the room

contained a box labeled “Shadow.”
-5-

A few months later, on March 10, 1995, Officers conducted a search

of 9625 Grandview, Kansas City, Missouri. McCracken Senior was present

during the search. A search of the attic area of the residence produced

three bags. One bag contained four packages wrapped in black tape. The

packages consisted of a total of 110 grams of methamphetamine. The other

two bags contained 25 grams of methamphetamine and $5,200 in United States

currency.

Officers also searched the northeast bedroom of this residence and

discovered a safe containing a book bearing the name “Shadow.” Located

inside the book was a copy of the earlier search warrant for 11505

Grandview and credit cards imprinted with the name “Donald McCracken” on

them as well as the abbreviations “S an G” and “FYVM.” Officers discovered

a semi-automatic handgun with a loaded magazine hanging over the headboard

of the bed. In the living room, officers found a wallet with a Missouri

drivers license for “Donald E. McCracken” and $1,060 in United States

currency. Officers also discovered 3.9 grams of methamphetamine on the

coffee table.

Detective Steve Santoli interviewed McCracken Senior at the residence

during the search. McCracken Senior told Detective Santoli that he had

been living at 9625 Grandview for approximately two months.

On May 25, 1995, defendants were charged in a five count indictment.

Following the trial, McCracken Senior was convicted of conspiracy to

distribute and to possess with intent to distribute methamphetamine in

violation of 21 U.S.C. § 846 and two counts of possession with intent to

distribute methamphetamine in violation 
The district court entered a judgment of acquittal 3

notwithstanding the verdict as to a charge of use and carrying of

firearms in violation of 18 U.S.C. § 924(c).

-6-

of 21 U.S.C. § 841(a)(1). The district court sentenced him to a term of 3

imprisonment of 117 months and five years supervised release. McCracken

Junior was convicted of conspiracy to distribute and to possess with intent

to distribute methamphetamine in violation of 21 U.S.C. § 846(a)(1) and

aiding and abetting the distribution of methamphetamine in violation of 21

U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The district court sentenced

McCracken Junior to 78 months incarceration and five years supervised

release. Defendants now appeal the convictions and sentences.

II. DISCUSSION

A) Sufficiency of the Evidence

Both defendants challenge the sufficiency of the evidence with regard

to the conspiracy convictions. McCracken Junior also challenges the

sufficiency of the evidence with respect to his conviction of aiding and

abetting distribution of methamphetamine. McCracken Senior similarly

contends the evidence was insufficient with respect to his convictions for

possession with intent to distribute methamphetamine.

In reviewing a sufficiency of the evidence claim, we view the

evidence in the light most favorable to the verdict. United States v.

Jenkins, 78 F.3d 1283, 1287 (8th Cir. 1996) (citing United States v.

Bascope-Zurita, 68 F.3d 1057, 1060 (8th Cir. 1995), cert. denied, U.S.

, 116 S.Ct. 741, 133 L.Ed.2d 690 (1996)). The verdict is given the

benefit of all reasonable inferences that 
-7-

could have been drawn from the evidence presented. Id. “Reversal is

appropriate only if we conclude that a reasonable fact-finder must have

entertained a reasonable doubt about the government’s proof of one of the

offense’s essentials elements.” Id. (internal quotations omitted).

In order to prove the existence of a conspiracy, “‘the government

must show an agreement between at least two people and that the agreement’s

objective was a violation of the law.’” Jenkins, 78 F.3d at 1287 (quoting

United States v. Escobar, 50 F.3d 1414, 1419 (8th Cir. 1995)). This

agreement may be proved by either direct or circumstantial evidence. Id.

In fact, proof of the agreement often must be implied from the surrounding

circumstances. Escobar, 50 F.3d at 1419.

The government introduced sufficient evidence against defendants

establishing a conspiracy between both defendants and Walker. Walker

brought Detective Seever to 11505 Grandview for the express purpose of

purchasing methamphetamine. McCracken Junior was present at the residence

and accompanied Walker to the southeast part of the house from where Walker

returned with methamphetamine. The search of the residence later revealed

methamphetamine, scales and plastic baggies in the southeast and southwest

bedrooms. As Detective Seever and Walker left the residence with the

methamphetamine, McCracken Senior arrived at the house. McCracken Senior

then immediately warned Detective Seever and Walker about the presence of

a police car and advised them to dispose of the methamphetamine if pursued

by police officers.

The government also presented evidence that both defendants resided

at 11505 Grandview. McCracken Senior’s daughter testified that both

defendants lived at 11505 Grandview in August and September of 1994. The

southwest bedroom contained personal 
-8-

possessions of McCracken Senior and in that bedroom officers recovered

methamphetamine wrapped in blue gauze and two loaded firearms. Possessions

belonging to McCracken Junior were found in the northeast bedroom where

officers discovered a safe containing $30,000 divided in three bundles

wrapped in the characteristic blue gauze. The methamphetamine earlier

purchased by Detective Seever had also been wrapped in blue gauze. When

viewed in a light most favorable to the verdict, the evidence presented at

trial of the events on August 27, 1994 and the seizure of methamphetamine,

money, guns and scales from a residence occupied by both defendants was

sufficient to support the jury’s conclusion that the defendants were

involved in a conspiracy to distribute methamphetamine.

McCracken Junior alleges there was insufficient evidence to support

his conviction for aiding and abetting the distribution of methamphetamine.

To sustain a conviction for aiding and abetting with intent to distribute

drugs, the government must prove: “‘(1) that the defendant associated

himself with the unlawful venture; (2) that he participated in it as

something he wished to bring about; and (3) that he sought by his actions

to make it succeed.’” United States v. Duke, 940 F.2d 1113, 1117 (8th Cir.

1991) (quoting United States v. Lanier, 838 F.2d 281, 284 (8th Cir. 1988)).

In examining the evidence in the light most favorable to the

government, the facts sufficiently establish that McCracken Junior

associated and then participated with Walker in distributing

methamphetamine. Walker brought Detective Seever to a residence where

McCracken Junior was present for the purpose of purchasing methamphetamine.

Walker talked with McCracken Junior, left the living room with McCracken

Junior, and then returned with a sample of methamphetamine for Detective

Seever. Detective Seever gave Walker some money, Walker returned to the

southeast portion of the house and then returned with the methamphetamine

wrapped in blue 
-9-

gauze. This configuration of physical movements and exchange of money is

strong circumstantial evidence from which a jury could reasonably find

McCracken Junior to be Walker’s source of supply for the methamphetamine.

The evidence is sufficient to support McCracken Junior’s conviction on

aiding and abetting with intent to distribute methamphetamine.

McCracken Senior contends that insufficient evidence exists to

support his conviction on two counts of possession with intent to

distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1).

McCracken Senior was charged with possession of the methamphetamine seized

from 11505 Grandview on September 2, 1994 and the methamphetamine seized

from 9625 Grandview on March 10, 1995. McCracken Senior specifically

argues that the government did not sufficiently provide evidence that he

possessed the methamphetamine.

To convict McCracken Senior on a violation of 21 U.S.C. § 841(a)(1),

the government had to prove that he knowingly possessed the methamphetamine

with the intent to distribute. United States v. Ojeda, 23 F.3d 1473, 1475

(8th Cir. 1994) (citing United States v. Brett, 872 F.2d 1365, 1369 (8th

Cir. 1989)). Proof of constructive possession is sufficient to satisfy the

element of knowing possession. United States v. Perkins, 94 F.3d 429, 436

(8th Cir. 1996) (citing United States v. Townley, 942 F.2d 1324, 1325 (8th

Cir. 1991)). Constructive possession of drugs can be established if a

person has “ownership, dominion or control over the contraband itself, or

dominion over the premises in which the contraband is concealed.” Ojeda,

23 F.3d at 1475 (citing United States v. Schubel, 912 F.2d 952, 955 (9th

Cir. 1990)).

There is sufficient circumstantial evidence to support a conclusion

that McCracken Senior constructively possessed the 
-10-

methamphetamine. The government produced testimony from McCracken Senior’s

daughter that in August and September of 1994, McCracken Senior lived at

11505 Grandview. The methamphetamine seized from 11505 Grandview was

recovered from a bedroom containing various possessions belonging to

McCracken Senior. With respect to the 110 grams of methamphetamine seized

from 9625 Grandview, McCracken Senior informed Detective Santoli that he

lived at 9625 Grandview. Further, personal items with McCracken Senior’s

nickname “Shadow” were recovered from a safe located in a bedroom at 9625

Grandview. In both instances, the testimony and evidence supports the

jury’s verdict that McCracken Senior had sufficient dominion over the

premises to establish constructive possession of the methamphetamine.

B) Enhancement for Possession of Firearms

Both defendants contend that there was insufficient evidence of an

adequate nexus between the guns seized and the alleged criminal activity

to support the district court’s enhancement of their offense levels by two

points pursuant to U.S.S.G. § 2D1.1(b)(1).

Federal Sentencing Guideline § 2D1.1(b)(1) calls for an increase of

two levels to a person’s base offense level for some drug related crimes

when “a dangerous weapon (including firearm) was possessed.” See United

States v. Payne, 81 F.3d 759, 763 (8th Cir. 1996). Application Note 3 to

the guidelines explains that: “[t]he enhancement should be applied if the

weapon was present, unless it is clearly improbable that the weapon was

connected with the offense.” Id. The government bears the burden of

proving by a preponderance of the evidence that the weapon was present and

that it is probable that the weapon was connected with the drug 
-11-

charge. Id. (quoting United States v. Hayes, 15 F.3d 125, 127 (8th Cir.),

cert. denied, U.S. , 114 S.Ct. 2718, 129 L.Ed.2d 843 (1994)). 

Lack of proof of use or actual possession does not prohibit a §

2D1.1(b)(1) adjustment; enhancement for weapons possession may be based on

constructive possession, which includes ownership, dominion, or control

over the item, or dominion over the premises. United States v. Luster, 896

F.2d 1122, 1129 (8th Cir. 1990) (citations omitted). A district court’s

determination that a defendant possessed a firearm for purposes of a §

2D1.1(b)(1) enhancement will be reversed only if the decision was clearly

erroneous. Id.

The government placed into evidence three loaded firearms seized from

a residence where both McCracken Senior and McCracken Junior resided. Two

of the firearms were found in a room that the government established to be

McCracken Senior’s bedroom. Located in this bedroom was also 110 grams of

methamphetamine. McCracken Junior was present in the residence during the

search when the officers seized the three firearms and the methamphetamine.

More specifically, McCracken Junior was present in the living room where

officers seized a loaded firearm within close proximity of six grams of

methamphetamine. The district court’s application of the two level

enhancement was not clearly erroneous, accordingly, we affirm the district

court’s determination.

C) Admission of Statements Made by McCracken Senior

Defendants contend that the district court abused its discretion in

admitting into evidence McCracken Senior’s statements of August 27, 1994

where he warned and advised Detective Seever and 
-12-

Walker about the presence of a police car near the residence. Defendants

maintain that the admission of these statements violated their Sixth

Amendment right of confrontation. Defendants argue that the statements are

hearsay which fall outside the co-conspirator exception to the hearsay rule

under Federal Rule of Evidence 801(d)(2)(E). Moreover, defendants assert

that the trial court erred by failing to make the proper Bell findings

before ultimately admitting the statements into evidence. United States

v. Bell, 573 F.2d 1040 (8th Cir. 1978) (establishing the procedure for the

admission of co-conspirator statements under Federal Rule of Evidence

801(d)(2)(E)).

We review a district court’s determination to admit evidence under

the deferential abuse of discretion standard. United States v. Johnson,

28 F.3d 1487, 1498 (8th Cir. 1994), cert. denied, U.S. , 115 S.Ct.

768, 130 L.Ed.2d 664 (1995),(citing United States v. Layne, 973 F.2d 1417,

1421-22 (8th Cir. 1992), cert. denied, U.S. ,113 S.Ct. 1011, 122

L.Ed.2d 160 (1993)). Unless there is a clear and prejudicial abuse of

discretion, the district court’s decision will be affirmed. Id.

Rule 801(d)(2)(E) of the Federal Rules of Evidence provides that a

statement of a co-conspirator is admissible if the trial court determines

by a preponderance of the evidence that “the statement was made during the

course and in furtherance of a conspiracy to which the declarant and the

defendant were parties.” United States v. Roulette, 75 F.3d 418, 425 (8th

Cir.), cert. denied, U.S. , 117 S.Ct. 147, 136 L.Ed.2d 93 (1996)

(citations omitted). As explained by the Court in Bell, the trial court

may conditionally admit the hearsay statements of alleged co-conspirators,

subject to a final ruling on the record that the statements are admissible

pursuant to the co-conspirator exception to the hearsay rule. Id. The

procedures outlined in Bell are 
-13-

flexible and do not require reversal for failure to follow those procedures

absent a showing of prejudice. Id. If the record indicates that a

defendant failed to specifically request a Bell ruling, but made a motion

for acquittal, we will consider the district judge’s denial of the

acquittal motion as substantial compliance with the Bell holdings, and

employ a plain-error standard of review. United States v. Ortiz-Martinez,

1 F.3d 662, 673 (8th Cir.), cert. denied, 510 U.S. 936, 114 S.Ct. 355, 126

L.Ed.2d 319 (1993).

As previously addressed, the government sufficiently established the

existence of a conspiracy involving both defendants. McCracken Senior’s

comments were statements of warning and advice regarding the possession of

drugs. Such comments are not idle conversation or insignificant

declarations. It is clear that the statements made by McCracken Senior,

as related at trial by Detective Seever, were made during the course and

in furtherance of the conspiracy. As such, the statements were admissible

pursuant to Rule 801(d)(2)(E).

Defendants admit they did not make an explicit request for a Bell

finding at the end of trial. Defendants did, however, assert an ongoing

objection to the admission of co-conspirator statements and argued a motion

for judgment of acquittal. The district court denied the motion. We infer

from the denial of the acquittal motion the requisite Bell findings and

review for plain error. In light of the evidence establishing a

conspiracy, we do not find plain error in the admission of the testimony,

and concomitantly, that defendants were not prejudiced by the district

court’s failure to follow Bell procedures.

Defendants maintain that the admission of McCracken Senior’s

conspiratorial statements violated McCracken Junior’s rights 
-14-

pursuant to Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 Led.2d

476 (1968). The Supreme Court in Bruton explained that a nontestifying

codefendant’s confession expressly incriminating the defendant introduced

at a joint trial, violates that defendant’s Sixth Amendment right of

confrontation. Bruton, 391 U.S. at 135-136, 88 S.Ct. at 1627-1628.

Bruton, however, does not mandate the exclusion of all statements made by

a codefendant; if the codefendant’s statement does not incriminate the

defendant, Bruton does not apply. United States v. Flaherty, 76 F.3d 967,

972 (8th Cir. 1996)(citing Escobar, 50 F.3d at 1422). The statements made

by McCracken Senior do not incriminate McCracken Junior. The district

court’s decision to admit into evidence the statements made by McCracken

Senior is affirmed.

III. CONCLUSION

For the foregoing reasons, we affirm defendants’ convictions and

sentences.

A true copy.

Attest:

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