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The Honorable Lyle E. Strom, United States District Judge for the District of

Nebraska.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 03-1251

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

 * District of Nebraska.

Tracy A. Cook, *

*

Appellant. *

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Submitted: October 20, 2003

Filed: January 30, 2004 

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Before RILEY, BEAM, and SMITH, Circuit Judges.

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RILEY, Circuit Judge.

Tracy Cook (Cook) was charged with and convicted of two counts of

possession with intent to distribute cocaine base and one count of conspiracy to

possess with intent to distribute cocaine base. 21 U.S.C. §§ 841(a)(1), (b)(1), 846

(2000). The district court1

 sentenced Cook to 360 months imprisonment on the first

two counts, to run concurrently with a life sentence on the conspiracy count. Cook

raises numerous issues on appeal. We affirm.
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I. BACKGROUND

On June 1, 2001, Omaha police officers were conducting surveillance on a

wanted man. During the surveillance, the officers saw the wanted man and two other

men enter a car and drive away. Cook was later identified as the driver. The police

followed in their car. When Cook observed the police following him, he led them on

a high-speed chase. The chase concluded when Cook stopped his car and ran,

eventually entering a house occupied by a woman and her seven children. These

people were strangers to Cook and were frightened by the intrusion. A police officer

apprehended Cook at gun point when Cook walked out of a bathroom in the home.

The police later found a bag containing 9.3 grams of crack cocaine in the bathroom.

Before the police said where the bag was found or described its contents, Cook

excitedly said, “You can’t charge me with that, you found that in the bathroom and

I was arrested in the living room.”

Based on Cook’s June 1, 2001 conduct, the government later charged Cook

with possession with intent to distribute cocaine base, and issued an arrest warrant for

him. On September 6, 2001, the police arrested Cook, strip searched him, and

discovered a bag containing 4.2 grams of crack cocaine. The government thereafter

charged Cook with (1) possession with intent to distribute cocaine base on June 1,

2001, (2) possession with intent to distribute cocaine base on September 6, 2001, and

(3) conspiracy to distribute and possession with intent to distribute 50 grams or more

of cocaine base from on or about January 1, 2000, through September 6, 2001.

Nearly seven weeks before trial, the government filed an Information to

Establish Prior Convictions. At trial, Cook testified about his several prior felony

convictions. Also during Cook’s trial, the government introduced the testimony of

Patrick Watson (Watson), Gregory Figures (Figures), Jimmy Swain (Swain), and

William Hawkins (Hawkins). These four witnesses testified they saw Cook with

crack cocaine on numerous occasions, bought crack cocaine from Cook, sold crack

cocaine to Cook, and bought and sold crack cocaine with Cook. Cook’s counsel tried
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to paint the adverse witnesses as untrustworthy felons seeking leniency for testifying

against Cook. The jury found Cook guilty on all counts.

At Cook’s sentencing hearing, the district court held Cook responsible for 694

grams of crack cocaine. Finding Cook’s actions on June 1, 2001 endangered people,

the district court applied a two-level obstruction of justice enhancement. The district

court also found Cook had two prior felony drug convictions. Based on its findings,

the district court sentenced Cook to 360 months imprisonment on the first two counts,

to run concurrently with a life sentence on the conspiracy count.

On appeal, Cook’s counsel argues (1) the district court improperly enhanced

Cook’s sentence based on two prior felony drug convictions, (2) the district court

improperly applied an obstruction of justice enhancement, and (3) Cook’s conviction

was not supported by sufficient evidence. By way of a pro se supplemental brief,

Cook also alleges (1) he was denied a competency hearing, (2) he was not properly

notified of the government’s intent to use prior convictions to enhance his sentence,

(3) he was denied a fair trial when the government introduced five prior convictions,

(4) he was denied the effective assistance of counsel, and (5) sufficient evidence did

not support his conspiracy conviction.

II. DISCUSSION

A. Prior Convictions

Cook contends the district court improperly enhanced Cook’s sentence based

on two prior felony drug convictions. We review de novo the district court’s use of

two of Cook’s prior convictions for enhancement purposes. United States v.

Stallings, 301 F.3d 919, 920 (8th Cir. 2002). Although Cook argues in his pro se

supplemental brief he was not notified of the government’s intent to use two of his

prior convictions to enhance his sentence, his counsel correctly acknowledges the

government gave proper notice before trial when it filed an Information to Establish
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Prior Convictions under 21 U.S.C. § 851(a)(1) (authorizing increased punishment for

prior convictions if notice provided before trial). Thus, Cook received proper notice.

Cook also contends his sentence cannot be enhanced, because he was convicted

and sentenced on the same day for both prior felony convictions. During trial and at

sentencing, Cook admitted he was convicted of two separate drug offenses on

October 10, 1997. Specifically, Cook was convicted of an April 9, 1997 possession

of cocaine offense, and an October 7, 1997 possession of cocaine offense. It does not

matter that Cook was convicted and sentenced on the same day. What matters is he

was convicted of two separate criminal episodes. See United States v. Gray, 152 F.3d

816, 821-22 (8th Cir. 1998) (holding a sentence enhancement for two prior

convictions must be based on separate criminal episodes). Thus, we hold the district

court properly used the two prior convictions for possessing cocaine to enhance

Cook’s sentence. See 21 U.S.C. § 841(b)(1)(A) (mandating life imprisonment for a

person convicted of two prior felony drug convictions).

B. Sentence Enhancement

Cook maintains the district court’s decision to enhance Cook’s sentence for

obstructing justice (i.e., reckless endangerment during flight) was clearly erroneous,

as it was based on unreliable evidence. We review the factual findings underlying a

sentence enhancement for clear error. United States v. Tirado, 313 F.3d 437, 440 (8th

Cir. 2002). 

The Sentencing Guidelines provide a two-level enhancement “[i]f the

defendant recklessly created a substantial risk of death or serious bodily injury to

another person in the course of fleeing from a law enforcement officer.” U.S.S.G.

§ 3C1.2 (2001). Reckless means “a situation in which the defendant was aware of the

risk created by his conduct and the risk was of such a nature and degree that to

disregard that risk constituted a gross deviation from the standard of care that a

reasonable person would exercise in such a situation.” Id. § 2A1.4, cmt. n.1; § 3C1.2,
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cmt. n.2. The district court found Cook’s June 1, 2001 conduct endangered people

through his evasive, high speed driving and his rushing into a stranger’s home to hide

and to conceal crack cocaine.

Cook was driving a vehicle while intoxicated when he chose to flee the police,

who pursued with police cars and a surveillance helicopter. Cook drove at high

speeds in a residential area. Cook admittedly crossed an intersection through

oncoming cross-traffic. After abandoning his car, Cook charged into a stranger’s

home, requiring a police officer to enter the house at gunpoint to arrest Cook. The

residents of the house included a mother and her seven children. The mother testified

she was frightened, and an officer testified the residents seemed “very upset and

almost in a state of shock.” The officer, at gun point, ordered Cook onto the floor.

These events–caused by Cook–created a substantial risk of serious bodily injury to

others. The district court’s findings are clearly not erroneous.

C. Sufficiency of the Evidence

Cook argues there was insufficient evidence to support the guilty verdict on the

conspiracy count. Cook confronts a high hurdle with this argument, as we must

employ a very strict standard of review on this issue. United States v. Sanders, 341

F.3d 809, 815 (8th Cir. 2003). We must view “the evidence in the light most

favorable to the government, resolving evidentiary conflicts in favor of the

government, and accepting all reasonable inferences drawn from the evidence that

support the jury’s verdict.” Id. (citation omitted). We may reverse only if no

reasonable jury could have found Cook guilty. Id. The government had to prove

there was an agreement to distribute cocaine base, which Cook knew and

intentionally joined. Id. The government could prove the existence of a conspiracy

with direct or circumstantial evidence. Id.

Cook’s argument on appeal sounds more like a summation to a jury. Cook

repeatedly attacks the veracity and credibility of adverse witnesses. These arguments
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did not persuade the jury, and are similarly unconvincing on appeal. See United

States v. Espino, 317 F.3d 788, 794 (8th Cir. 2003) (stating the jury “is always the

ultimate arbiter of a witness’s credibility, and this Court will not disturb the jury’s

findings in this regard”). The jury concluded the government met its burden to prove

the conspiracy count beyond a reasonable doubt. Because the record supports this

conclusion, we will not overturn the jury’s verdict.

Although the record contains substantial evidence of Cook’s involvement in

a conspiracy to distribute cocaine base, we focus only on the testimony of Hawkins

and Watson. Hawkins testified to the following: (1) he dealt drugs with Cook in

1996 and 1997, as well as from 2000 to August 2001; (2) he sold Cook 1/4 to 1 ounce

of crack cocaine each time for Cook to distribute; (3) he sold Cook an ounce (i.e., 28

grams) of crack cocaine about three times in 2000 and 2001, and 1/4 to 1/2 ounce

more than five times; (4) he never saw Cook use the crack cocaine; (5) he and Cook

had an arrangement to constantly have drugs to sell; (6) under their arrangement,

Hawkins would get drugs from Cook when Hawkins was unable to get drugs, and

Cook would get drugs from Hawkins when Cook was unable to get drugs; (7) when

he did not have enough money to purchase drugs to sell, he would get money from

Cook to buy drugs; (8) he and Cook both owned scales to weigh their drugs; (9) he

and Cook sold crack cocaine in each other’s presence, and they took turns selling

crack cocaine to their customers; and (10) he and Cook once agreed to split the cost

of buying three ounces of crack cocaine from a supplier, Figures.

In addition to hearing Hawkins’s testimony, the jury also heard from Watson.

Watson testified as follows: (1) he bought 1/4 ounce of crack cocaine from Cook

three or four times; (2) he sold an ounce of crack cocaine to Cook four to seven times;

(3) he saw Cook with electronic and digital scales; (4) the amounts he sold to Cook

were too large for Cook to smoke, intimating Cook would then distribute the crack

cocaine; (5) he never observed Cook use crack cocaine; and (6) he and Cook had a

business relationship to purchase drugs from each other whenever one of their
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The brief submitted by Cook’s counsel and Cook’s pro se supplemental brief

seem to attack only the conspiracy conviction. To the extent Cook also attacks the

jury’s guilty verdict on the two counts of possession with intent to distribute cocaine

base, we readily reject this argument. On two occasions, the police arrested Cook

with 9.3 grams and 4.2 grams, respectively, of crack cocaine in his possession.

Combined with the evidence supporting the conspiracy conviction, the jury quite

reasonably concluded Cook possessed with intent to distribute cocaine base.

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suppliers did not have drugs available. We conclude the evidence supports the jury’s

conviction on the conspiracy count.2

D. Competency to Stand Trial

Cook argues in his pro se supplemental brief he was denied due process by the

district court’s refusal to grant his request for a competency hearing and a mental

evaluation. Congress designated the district court as the gatekeeper on competency

issues. See 18 U.S.C. § 4241(a). Congress authorizes a competency hearing when

“there is reasonable cause to believe that the defendant may presently be suffering

from a mental disease or defect rendering him mentally incompetent to the extent that

he is unable to understand the nature and consequences of the proceedings against

him or to assist properly in his defense.” Id. After hearing testimony from Cook and

his grandmother regarding Cook’s competency and mental condition, the district

court found Cook mentally competent to stand trial. This competency determination

is a factual finding we affirm “unless clearly arbitrary or unwarranted, or clearly

erroneous.” United States v. Voice, 627 F.2d 138, 141 (8th Cir. 1980) (citations

omitted). We note the “[p]resence of a mental illness does not equate with

incompetency to stand trial.” Feguer v. United States, 302 F.2d 214, 236 (8th Cir.

1962) (Blackmun, J.).

In his testimony, Cook demonstrated an understanding of the charges against

him, his rights, and how the criminal justice system operates. Cook focused his

competency testimony on the fact he did not want to go to jail for a long time, and
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We note Cook, on appeal, submitted a pro se supplemental brief exceeding

twenty pages and raising numerous complex legal issues. In reading Cook’s appellate

brief, we see no signs of incompetency.

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that he wanted this case to be over. As most criminal defendants have similar wishes,

we cannot find any facts that would assist Cook with his competency plea. Cook’s

trial counsel told the district court Cook vacillated on how he wanted his counsel to

represent him, suggesting an updated psychiatric evaluation was necessary. Such

vacillation did not demonstrate an incompetency to stand trial or need for a

psychiatric evaluation. Reviewing the record, we conclude the district court’s

competency determination was not clearly arbitrary or unwarranted, or clearly

erroneous.3

Finally, Cook argues his previous felony drug convictions used to enhance his

sentence in this case also violated his rights because he now challenges his

competency in those cases. Because Cook’s argument is directed at the wrong court

at the wrong time, we refuse to confront this belated assertion of incompetency.

E. Impeachment Evidence

Cook complains in his pro se brief that the district court erroneously admitted

evidence of five of Cook’s prior convictions. Cook acknowledges no objections to

this evidence were made at trial. Thus, we employ a plain error standard of review,

under which Cook must show a plain error that affects his substantial rights. United

States v. Collins, 340 F.3d 672, 682 (8th Cir. 2003). If Cook can make such a

showing, we have “discretion to correct a forfeited error if ‘the error seriously affects

the fairness, integrity or public reputation of judicial proceedings.’” Id. (quoting

United States v. Olano, 507 U.S. 725, 732 (1993)). Given the amount of evidence

against Cook in this case, including the 13.5 ounces of crack cocaine found on his

person, we cannot conclude under a plain error standard that the evidence of Cook’s
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prior convictions affected his substantial rights or called into question the fairness,

integrity or public reputation of the judicial proceedings against him.

F. Ineffective Assistance of Counsel

Cook finally raises claims of ineffective assistance of counsel, arguing in his

pro se brief his “counsel deliberately sabotaged” his defense. Specifically, Cook

faults his trial counsel for attacking the credibility of adverse witnesses by bringing

up gang membership, opening the door for evidence about Cook’s gang membership.

Cook faults his trial counsel for bringing up the time Cook spent in prison, and for

failing to exclude evidence of prior convictions. Cook also argues his trial and

appellate counsel were ineffective on the competency issue. Cook argues his trial

counsel failed to obtain all of Cook’s medical records for the district court’s

consideration, and his appellate counsel failed to obtain those records and submit the

records to our court for review. 

To prove ineffective assistance of counsel, Cook must show his counsel’s

deficient performance fell below an objective standard of reasonableness, and the

deficient performance prejudiced Cook’s defense. Strickland v. Washington, 466

U.S. 668, 687 (1984). Generally, ineffective assistance of counsel claims are better

left for post-conviction proceedings. United States v. Soriano-Hernandez, 310 F.3d

1099, 1105 n.9 (8th Cir. 2002). However, these claims are proper on direct appeal

in exceptional cases where the record has been fully developed or to avoid a plain

miscarriage of justice. Id. Ineffective assistance claims may also be appropriate on

direct appeal when trial counsel’s ineffectiveness is readily apparent or obviously

deficient. See Massaro v. United States, 123 S. Ct. 1690, 1696 (2003).

Based on the undeveloped record before us, we cannot properly analyze Cook’s

pro se allegations of ineffective assistance of counsel. First, Cook’s counsel

apparently sought to impeach one adverse witness by revealing that witness’s gang

membership, and sought to impeach another adverse witness by asserting an
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impossibility defense, i.e., the adverse witness lied because Cook was in prison at the

time the witness said Cook was conspiring to sell drugs. Second, to avoid the

obvious result which flows from the district court’s competency determination, Cook

now focuses his allegations on undiscovered medical records. Nothing before us

indicates the failure of Cook’s counsel to obtain Cook’s medical records would have

altered the outcome of the trial or the district court’s competency decision. Because

we have only a pro se brief and an undeveloped factual record on the ineffective

assistance of counsel claims, we refuse to address Cook’s claims now, as his claims

are better left to a proceeding under 28 U.S.C. § 2255. See United States v. Logan,

333 F.3d 876, 878 (8th Cir. 2003); United States v. Jefferson, 215 F.3d 820, 825 (8th

Cir. 2000) (refusing to address pro se ineffective assistance of counsel claims on

direct appeal).

G. Additional Claims

We have addressed all of the recognizable issues Cook raised in his pro se

brief. To the extent Cook raises additional issues, the issues are incoherent and

meritless. See 8th Cir. R. 47B.

III. CONCLUSION

Based on the foregoing reasons, we affirm Cook’s convictions and sentence.

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