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The Honorable Richard H. Battey, United States District Judge for the District

of South Dakota, sitting by designation. 

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The Honorable Ortrie D. Smith, United States District Judge for the Western

District of Missouri. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 01-1062

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United States of America,

Appellee,

v.

Larry Beal,

Appellant.

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Appeal from the United States

District Court for the

Western District of Missouri.

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Submitted: December 10, 2001

 Filed: February 1, 2002

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Before McMILLIAN and HANSEN, Circuit Judges, and BATTEY1

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HANSEN, Circuit Judge.

Larry Beal appeals his drug-related convictions and sentence. We affirm the

judgment of the district court.2
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Eugene Johnson and Anthony Clemons pleaded guilty, and the government

dismissed the charges against Macia Jackson in favor of allowing her to face state

charges. 

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I. 

On September 1, 1999, the grand jury indicted Beal, Joseph Johnson, Eugene

Johnson, Anthony Clemons, and Macia Jackson in a nine-count drug conspiracy

indictment. Specifically, the indictment charged Beal with one count of conspiracy

to distribute cocaine and cocaine base, in violation of 21 U.S.C. §§ 846, 841(a)(1);

two counts of distributing cocaine base, one count of distributing cocaine, and one

count of possession with intent to distribute cocaine base, all in violation of 21 U.S.C.

§841(a)(1); and one count of being a convicted felon in possession of a firearm in and

affecting commerce, in violation of 18 U.S.C.§§ 922(g)(1), 924(a)(2). Beal and

Johnson proceeded to trial by jury together, and the counts against the remaining

defendants were separately resolved.3

 We summarize the evidence presented at trial

in the light most favorable to the jury’s verdict. 

In May of 1997, the Drug Enforcement Administration (DEA) and the

Springfield Missouri Police Department began receiving intelligence information

regarding Larry Beal’s involvement in cocaine trafficking. Beal proved to be the

“head leader” (Trial Tr. at 475) or “mastermind” (Id. at 74) of a cocaine distribution

conspiracy in the Springfield area. Beal and his associates distributed cocaine in

powder form and sometimes processed it into cocaine base for distribution.

Documentary evidence indicates that Beal obtained six different pager units for

himself and other members of the conspiracy and rented automobiles for trips to St.

Louis, where he would obtain his drug supply.

Beal and Johnson often distributed drugs to coemployees and others at Hudson

Foods (now Willowbrook Foods) in Springfield, where Beal worked as a supervisor
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and Johnson worked as a mid-level supervisor under Beal. If a coworker owed Beal

money for drugs, Beal would often keep the coworker’s paycheck, accompany that

person to the bank, and collect payment as soon as the person cashed the check. Beal

also owned a sports-related hat shop in Springfield, and coconspirators indicated that

Beal made numerous trips in rental cars to St. Louis for the purpose of obtaining

cocaine as well as merchandise for his shop. 

Codefendant Anthony Clemons testified at trial that he had been involved in

the conspiracy from September 1997 until his arrest in late December 1997. He

worked at Hudson Foods with Beal and Johnson and often observed them distributing

cocaine or cocaine base at work. Clemons began distributing drugs for Beal. Beal

introduced Clemons to clients, provided Clemons with a pager so drug clientele could

contact him, and supplied the cocaine. Beal set the price and Clemons would remit

payment after he sold the drugs. Beal told Clemons to go to Johnson to obtain drugs

or to ask questions when Beal himself was unavailable, and Clemons sometimes

picked up his supply at Beal’s retail store or from Johnson. In exchange for Clemons’

drug-dealing activities, Beal supplied him with personal-use amounts of cocaine base

which Clemons could either use or resell. Clemons made one trip to St. Louis with

Beal. Beal obtained cocaine from his supplier there and delivered a portion of it to

Clemons the next day. 

Tommy Dorsey also worked at Hudson Foods with Beal. Dorsey began

obtaining personal-use amounts from Beal after he was released from a prison work

program, and shortly thereafter, he began distributing cocaine and cocaine base for

Beal. In February 1997, Dorsey accompanied Beal and Beal’s girlfriend, Macia

Jackson, to St. Louis where Beal obtained cocaine from his supplier and merchandise

to stock his store. 

Officers conducted three controlled purchases of cocaine and cocaine base

from Beal during the course of the conspiracy. In November 1997, officers observed
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Beal distribute 1.3 grams of cocaine base to Dorsey, who began working as a

government informant following his own arrest. In April 1999, officers observed

Beal distribute 2.0 grams of powder cocaine to Tony Booker, who was working as a

government informant. And on August 19, 1999, officers observed Beal distribute

.13 grams of cocaine base to Dorsey during another controlled purchase. 

 

DEA officers and the Springfield Police Department’s Special Response Team

executed a federal search warrant at Beal’s residence on August 20, 1999. They

seized personal-use amounts of marijuana, over $1,300 in cash, digital scales, a Ruger

.45 caliber semi-automatic handgun, and an ammunition clip with seven rounds of .45

caliber ammunition. Beal arrived home while the officers were executing the search

warrant. The officers took Beal into custody, searched him, and seized six individual

packages of cocaine base discovered on his person. 

The jury convicted Beal on all counts against him. Prior to sentencing, the

United States Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466, 490

(2000), in which the Court held that “[o]ther than the fact of a prior conviction, any

fact that increases the penalty for a crime beyond the prescribed statutory maximum

must be submitted to a jury, and proved beyond a reasonable doubt.” Because the

jury made no drug quantity determination, the government conceded that a life

sentence under 21 U.S.C. § 841(b)(1)(A) was unavailable. Thus, the district court

sentenced Beal to thirty years of imprisonment, which is the statutory maximum

sentence without regard to drug quantity under 21 U.S.C. § 841(b)(1)(C) for

defendants, like Beal, who have a prior felony drug conviction. Beal now appeals.

II.

Beal asserts that the district court erred in admitting an audio tape from the

April 1999 controlled buy between Beal and Booker. Beal contends that the

introduction of this tape violated his Sixth Amendment right to confront the witnesses
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against him because the tape was admitted in spite of the fact that Booker was

unavailable to testify at trial. 

We review a district court's decision to admit evidence over a hearsay objection

under an abuse of discretion standard. United States v. Wadena, 152 F.3d 831, 854

(8th Cir. 1998), cert. denied, 526 U.S. 1050 (1999). We review de novo the district

court’s decision that admitting the evidence did not violate Beal’s Sixth Amendment

rights. Id. These issues are intertwined. In order to satisfy the Confrontation Clause,

the out-of-court statement of one who is unavailable to testify at trial must bear the

indicia of reliability, such as falling within a firmly rooted hearsay exception. Ohio

v. Roberts, 448 U.S. 56, 66 (1980). The “‘hearsay rules and the Confrontation Clause

are generally designed to protect similar values.’” Id. (quoting California v. Green,

399 U.S. 149, 155 (1970)). If a firmly rooted hearsay exception does not apply, the

evidence is still admissible if it demonstrates “particularized guarantees of

trustworthiness.” Idaho v. Wright, 497 U.S. 805, 815 (1990) (quoting Roberts, 448

U.S. at 66). However, “hearsay evidence used to convict a defendant must possess

indicia of reliability by virtue of its inherent trustworthiness, not by reference to other

evidence at trial.” Id. at 822. 

Beal complains generally that the audiotape should not have been admitted

without Booker’s testimony at trial. Beal, however, has failed to make the tape

available to us on appeal and has not provided this court with any transcript of the

recorded conversation. He asserts vaguely that “the statement” must be shown to be

trustworthy from the totality of the circumstances but has not met his burden even to

demonstrate what statement he complains of. The officer who monitored and

recorded the conversation during the controlled buy indicated that the taped

conversation was indiscernible because of the loud music in the car, and Beal offers

nothing to the contrary. If the conversation could not be understood, the contents of

the tape could not have added much to the prosecution’s case. Because the defendant

has failed to specify any particular hearsay statement to which he objects and has not
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produced the tape or even a transcript of its contents, we are unable to test whether

or not the taped statements fall within a recognized hearsay exception or are

otherwise sufficiently trustworthy and reliable. See United States v. Jorgensen, 144

F.3d 550, 562 (8th Cir. 1998) (noting that it is not “our responsibility to dig through

20 volumes of trial transcript to ferret out and examine” hearsay statements not

specified by record references). For these reasons, we cannot conclude that the

district court abused its discretion in admitting the audiotape.

Beal also argues that the cocaine from the April 1999 controlled buy was

inadmissible because the government failed to establish a proper chain of custody to

authenticate it. Beal asserts that because Booker did not testify and the officers did

not conduct a body cavity search of Booker prior to the buy, the chain of custody is

faulty. Specifically, Beal argues that Booker could have had the cocaine in his own

body cavity and not received it from Beal. 

We review a district court’s decision to admit evidence under a clear abuse of

discretion standard. United States v. Pazzanese, 982 F.2d 251, 252 (8th Cir. 1992).

The admission of evidence is proper if the court “is satisfied that in reasonable

probability the evidence has not been changed.” Id. We presume that the government

has preserved the integrity of the evidence “unless there is a showing of bad faith, ill

will, or proof that the evidence has been tampered with.” Id. (internal quotations

omitted). 

The officers testified that they searched Booker’s person prior to the controlled

buy, though they did not conduct a body cavity search. The officers further testified

that the transaction occurred in Beal’s car on a public street, that it was monitored by

audiotape, and that it lasted less than one minute. Most notably, Booker was under

constant surveillance by several officers who communicated by radio to ensure that

their surveillance was not compromised. The officers testified, for instance, that they

were positioned such that when one lost sight of Booker, another could see him. The
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government further demonstrated that the cocaine went from Booker to Officer Troy

Smith (who had searched Booker before the buy and provided money for the

purchase) to Officer Randy McDowell, who forwarded it to the DEA laboratory

where it was received and analyzed by Khrishna James. Both James and McDowell

testified that the substance was in substantially the same condition as when they

originally received it. 

We find no clear abuse of discretion in the district court’s decision to admit this

evidence. While the officers monitoring the controlled buy may not have been able

to see the actual transaction occur within the car, the otherwise complete surveillance

supports the conclusion that, within a reasonable probability, Booker had no

opportunity to retrieve the evidence from a body cavity or to change or tamper with

the evidence. 

Finally, Beal contends that his 30-year sentence on the drug counts must be

reversed under the principles announced by the Supreme Court in Apprendi v. New

Jersey, 530 U.S. 466 (2000). Prior to trial, the government filed an information

pursuant to 21 U.S.C. § 851, providing Beal with notice of the government’s intent

to seek an enhanced punishment of life imprisonment under 21 U.S.C. §

841(b)(1)(A), based upon Beal’s prior felony drug convictions and the specific

amount of drugs involved in his offense. Because the jury made no finding as to drug

quantity, the district court sentenced Beal to 30 years, within the limits provided in

§ 841(b)(1)(C). This provision sets the statutory maximum sentence at 20 years

without regard to drug quantity but also provides for a 30-year maximum sentence for

a defendant who has a prior felony drug conviction. Beal asserts that the district

court erred by effectively amending the indictment when it sentenced him under §

841(b)(1)(C) rather than under the government’s notice of life imprisonment under

§ 841(b)(1)(A). He asserts that the only proper outcome in this case would have been

a conviction by a jury of the specific drug quantity alleged in the notice or, because

the jury made no finding as to drug quantity in this case, an acquittal.
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We find no error. The Supreme Court’s jurisprudence permits the

consideration of the fact of a prior conviction when determining the proper sentence.

See Apprendi, 530 U.S. at 490; Almendarez-Torres v. United States, 523 U.S. 224,

235 (1998) (holding that the fact of a prior conviction is not an element of the

offense). Additionally, we have previously concluded that the district court does not

err under the rule of Apprendi by sentencing a defendant with a prior drug felony

conviction to the enhanced statutory maximum sentence provided in § 841(b)(1)(C),

so long as the government had filed a motion pursuant to § 851 giving the defendant

notice of the government’s intent to enhance the sentence on the basis of a prior

felony conviction. See United States v. Maynie, 257 F.3d 908, 919 (8th Cir. 2001)

(stating that where the defendant had at least one prior drug felony conviction, the

district court could have imposed the maximum sentence of 30 years without

violating Apprendi); United States v. Arias, 252 F.3d 973, 979 (8th Cir. 2001)

(recognizing that defendant with a prior felony drug conviction can be sentenced to

§ 841(b)(1)(C)’s 30-year sentence without offending Apprendi); see also United

States v. Sheppard, 219 F.3d 766, 768 (8th Cir. 2000) (holding that “where a prior

conviction increases the statutory maximum, the use of drug quantity at sentencing

will not conflict with Apprendi so long as it results in a sentence within the §

841(b)(1)(C) maximum”), cert. denied, 531 U.S. 1200 (2001). 

In this case, the government provided notice of an intent to seek an enhanced

sentence of life imprisonment on the basis of Beal’s prior felony convictions if it

could prove that the offense involved certain listed drug quantities. The jury,

however, did not make any findings on drug quantity, and consequently, the rule

announced in Apprendi precluded the district court from imposing a sentence of life

imprisonment under § 841(b)(1)(A). We now conclude that the government did not

forfeit or hinder its ability to seek an enhanced punishment under § 841(b)(1)(C)

based on Beal’s prior convictions by specifying § 841(b)(1)(A) in the indictment and

in the § 851 notice as the applicable penalty provision. Providing notice to the

defendant of a potential punishment that is greater than the ultimately applicable
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maximum sentence results in no prejudice to the defense. Cf. United States v.

Humphreys, 982 F.2d 254, 262 (8th Cir. 1992) (holding that defendant received

“adequate notice of the possibility of conviction on the lesser charge when he was

charged with the greater offense”), cert. denied, 510 U.S. 814 (1993). Beal received

adequate notice that his prior felony convictions would subject him to a greater

sentence than the sentence provided for the offense simpliciter, and the district court

properly sentenced Beal under § 841(b)(1)(C) to a 30-year term of imprisonment on

the drug counts. 

III.

Accordingly, we affirm the judgment of the district court. 

A true copy.

Attest:

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