1

The Honorable Linda R. Reade, Chief Judge, United States District Court for

the Northern District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-3675

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Northern District of Iowa.

Terry Terrell Samuels, also known *

as T.G., *

*

Appellant. *

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Submitted: June 10, 2008

Filed: October 9, 2008

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Before SMITH, BOWMAN, and GRUENDER, Circuit Judges.

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BOWMAN, Circuit Judge.

Terry Terrell Samuels was convicted after a jury trial on both counts of a twocount indictment charging him with distribution of cocaine base (crack cocaine)

within 1000 feet of an elementary school, 21 U.S.C. §§ 841(a)(1), 860(a). The

District Court1

 sentenced him to a statutory life term of imprisonment, id.

§ 841(b)(1)(A). He appeals his convictions and his sentence. We affirm.
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We relate the facts in the light most favorable to the jury's finding of guilt.

United States v. Davis, 260 F.3d 965, 967 (8th Cir. 2001), cert. denied, 534 U.S. 1107

(2002). In early 2006, Travis Rogers had been contacting Samuels, also known to

Rogers as "T.G.," about three times a week to purchase crack cocaine. About seventyfive percent of the time, someone other than Samuels would show up to actually make

the exchange of drugs for cash. In March of 2006, Rogers became a confidential

informant (CI) and worked with law enforcement to set up controlled buys of cocaine

base from Samuels. On March 24, 2006, Rogers purchased 20.24 grams of cocaine

base from Samuels for $750. The transaction took place in the entryway of Rogers's

apartment building in Dubuque, Iowa, which was within 1000 feet of Prescott

Elementary School. Samuels arrived at Rogers's apartment building alone in a white

Dodge Charger. On March 28, 2006, Samuels again drove to Rogers's apartment

building in a white Charger, but sent an unidentified male into the building to

exchange 19.35 grams of cocaine base for $750. On both occasions, Rogers wore a

wire and law enforcement recorded the transactions. Shortly before each controlled

buy, Rogers called Samuels at the same telephone number; those calls were recorded

by law enforcement as well. And immediately before Samuels arrived for the March

28 transaction, Samuels called Rogers. The wire that Rogers was wearing recorded

Rogers's side of the conversation but not Samuels's. Both of the controlled buys were

also observed by law enforcement officers, although the officers could not see into the

apartment building. These sales are the basis for Samuels's convictions on the two

counts of distribution.

For his first issue on appeal, Samuels contends that the District Court erred in

denying his pretrial ex parte request for authorization to pay a voice comparison

expert more than the maximum allowed by statute. See 18 U.S.C. § 3006A(e). The

expert would have compared Samuels's voice with the voice of the person who gave

Rogers the cocaine base in exchange for cash on March 28 and then would have made

a judgment as to whether it was in fact Samuels's voice on the recording made by law
2

Samuels claims that the recording of the March 28 transaction "was selected

because it is the alleged seller's conversation on audiotape that is the longest and

consequently the most likely to be amenable to voice comparison." Br. of Appellant

at 25–26. We have listened to the recorded transactions for both the March 24 and the

March 28 controlled buys and conclude that Samuels's characterization is wrong. On

the March 24 recording, the seller speaks longer, louder, and more clearly than on the

March 28 recording.

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enforcement.2

 After a hearing, the court determined that Samuels had not met his

burden to show the court both that the expert's analysis was "necessary to an adequate

defense" and that Samuels's trial would be unfair if the employment of his expert was

not approved. United States v. Mentzos, 462 F.3d 830, 839 (8th Cir. 2006), cert.

denied, 127 S. Ct. 2079 (2007). The court said that the voice analysis was

unnecessary because there were other methods available to Samuels to show that he

was not the speaker on the tape, for example, the testimony of someone who knew

him and his voice. See United States v. Thurmon, 413 F.3d 752, 756 (8th Cir.), cert.

denied, 546 U.S. 1069 (2005). The court also doubted that a voice comparison

analysis would result in admissible evidence. On appeal, we will reverse only if we

decide that the court abused its discretion, and we can make such a determination only

if Samuels shows that he was prejudiced by the denial of his request. See Mentzos,

462 F.3d at 840.

We do not address the admissibility of any evidence that may have resulted

from the proposed expert's analysis because we conclude that the District Court did

not err in determining that Samuels failed to show that a voice analysis of the

March 28 wire recording of the controlled buy was necessary for his defense. As the

court noted, there were other methods to show that Samuels's was not the voice on the

recording. Moreover, the recordings of both transactions were played for the jurors

during trial, and they could judge for themselves if the voices were the same. In any

event, with the benefit of hindsight, we can say with confidence that Samuels was not

prejudiced by the absence of an expert's voice-comparison opinion. When Rogers was
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called as a witness at trial, he apparently changed his expected testimony and said that

although he had spoken to Samuels twice by telephone just before the March 28 sale,

Samuels sent another individual into Rogers's apartment building to turn over the

crack and collect the cash (as he had in the past, before Rogers became a CI).

Rogers—the only eyewitness to the actual exchange of money for drugs as it was

being recorded (besides the person who took the cash and gave Rogers the

crack)—testified that the voice on the March 28 recording of the controlled buy did

not belong to Samuels. Given that testimony, "the facts do not reasonably suggest"

that it was Samuels's voice on the wire recording, so the jury did not need the opinion

of an expert that it was not Samuels's voice. Thurmon, 413 F.3d at 756. Samuels

makes much of the fact that Rogers's exculpatory trial testimony on this point had

changed from Rogers's previous inculpatory sworn statements (that Samuels himself

had handed Rogers the crack cocaine on March 28), but that does not make an expert

opinion that the voice was not Samuels's necessary to his defense. We hold that the

District Court did not abuse its discretion in denying Samuels's request to authorize

funds to pay an expert more than the maximum allowed by statute.

Samuels next argues that the District Court abused its discretion when it denied

portions of his motion in limine. See United States v. Benitez, 531 F.3d 711, 716 (8th

Cir. 2008) (standard of review). The court granted the motion in part but denied it as

to the testimony of two cooperating witnesses, Rogers and Donald Harris, and as to

evidence of the fact of Samuels's 1998 Illinois state-court conviction for delivery of

marijuana. Samuels argues that allowing this evidence at trial violated the dictates of

Rules 403 and 404(b) of the Federal Rules of Evidence. Under Rule 403, relevant

evidence "may be excluded if its probative value is substantially outweighed by the

danger of unfair prejudice." Likewise, evidence of other crimes or acts will not be

admissible under Rule 404(b) "to prove the character of a person in order to show

action in conformity therewith." But "Rule 404(b) is a rule of inclusion rather than

exclusion, rendering admissible evidence of other crimes relevant to any issue at trial

other than an accused's criminal disposition." Benitez, 531 F.3d at 716. The Rule
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allows the admission of evidence of other crimes or acts to prove intent, knowledge,

and identity, all of which are relevant here, where Samuels denied that he was the

person who sold Rogers the cocaine base.

As for the testimony of the cooperating witnesses, Samuels contends that the

"sheer volume" of drug deals testified to by Rogers and Harris "invited" the jury to use

that testimony to determine that Samuels was guilty of the similar conduct with which

he was actually charged. Br. of Appellant at 28. But as the District Court pointed out,

Rogers was the CI for the charges for which Samuels was on trial, and his testimony

about the crack cocaine deals he had done with Samuels in the weeks leading up to

March 2006 was highly relevant to show Samuels's intent, knowledge, and identity

and was not unfairly prejudicial. And Harris testified to conducting crack deals with

Samuels that followed the pattern Rogers described in his testimony. In early 2006,

before the controlled buys with Rogers, Samuels delivered crack cocaine to Harris's

residence, occasionally sending someone else to make the actual cash-for-crack

exchange. This was relevant and highly probative evidence, again of Samuels's intent,

knowledge, and identity, and was not unfairly prejudicial. While both Rogers and

Harris testified to a number of drug deals with Samuels, all of the deals occurred

during a limited time frame close in time to the controlled buys, and both witnesses

described transactions that took place in a manner strikingly similar to that of the

crimes charged.

Samuels also argues that evidence of his state-court marijuana conviction

should not have been admitted. According to Samuels, the January 1998 conviction

for delivery of marijuana in December 1996 was so remote in time from the March

2006 charged conduct that it was not relevant, lacked probative value, and constituted

excludable other-crimes evidence. Although the 1998 delivery conviction was for a

crime that occurred over nine years before the conduct charged in the indictment, that

crime was functionally similar to the charged conduct and was relevant to show

Samuels's intent, knowledge, and identity for the two counts of conviction. Cf. United
3

Samuels ultimately stipulated to the fact of conviction.

4

Batson v. Kentucky, 476 U.S. 79 (1986).

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States v. Cook, 454 F.3d 938, 941 (8th Cir. 2006). The illegal substance was not the

same, but that is of no consequence. See id.; see also Benitez, 531 F.3d at 716.

Moreover, the government proposed to prove only the fact of conviction, either by

confronting Samuels, if he testified, or by offering a certified copy of the conviction.3

Both of these are straightforward methods of proof that are less prejudicial than, for

example, police reports (which could contain hearsay) or witness testimony (which

could result in mini-trials of old crimes). See Cook, 454 F.3d at 942.

In addition, we note that after the introduction of the other crimes evidence at

Samuels's trial, the District Court gave specific cautionary instructions advising the

jury that the evidence could not be used to prove the crimes charged and could be

considered only if proved by a preponderance of the evidence. Had there been any

unfair prejudice to Samuels, it would have been offset by the limiting instructions.

See United States v. Edelmann, 458 F.3d 791, 810 (8th Cir. 2006); United States v.

Tail, 459 F.3d 854, 858 (8th Cir. 2006).

In sum, the evidence was offered for a proper purpose, it was relevant, its

probative value was not outweighed by the potential for unfair prejudice, and the court

gave cautionary instructions. See Huddleston v. United States, 485 U.S. 681, 691–92

(1988). In these circumstances, we cannot say that the District Court abused its

discretion in denying Samuels's motion in limine as to these matters.

For his next issue, Samuels appeals the District Court's denial of his Batson4

challenge to the government's peremptory exclusion of two jurors from the venire.

Samuels argues that the two were removed because they were African-American, as

is Samuels. When counsel raised the challenge during jury selection, the District
5

With Samuels's consent, the Honorable Jon S. Scoles, United States Magistrate

Judge for the Northern District of Iowa, presided over jury selection.

6

When challenged for the strike, the Assistant United States Attorney professed

his subjective belief that Vanarsdale was white, and the court was uncertain. Jury

Selection Tr. at 75–76. A record was later made that Vanarsdale's father is AfricanAmerican.

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Court5

 conducted the necessary inquiry and found that the strikes were not racially

motivated. We review the District Court's determination concerning discriminatory

intent—a question of fact—for clear error. Miller-El v. Cockrell, 537 U.S. 322, 340

(2003).

At the point in jury selection where the government and Samuels were to

exercise their peremptory challenges, three African-Americans remained on the

venire. The government struck two of them, Starks and Vanarsdale. Samuels

objected. The District Court first determined that Samuels had made a prima facie

showing that the government excluded Starks on the basis of his race and assumed

that the prima facie case was made as to Vanarsdale.6

 See Snyder v. Louisiana, 128

S. Ct. 1203, 1207 (2008) (articulating the three-step process to be followed in the

event of a Batson challenge). 

At this point, the burden shifted to the government to offer race-neutral reasons

for striking both. "Although the prosecutor must present a comprehensible reason,

'[t]he second step of this process does not demand an explanation that is persuasive,

or even plausible'; so long as the reason is not inherently discriminatory, it suffices."

Rice v. Collins, 546 U.S. 333, 338 (2006) (quoting Purkett v. Elem, 514 U.S. 765,

767–68 (1995) (per curiam)). As for Starks, the Assistant United States Attorney

(AUSA) noted the prospective juror's concern that the judicial system treated his

nephew unfairly because the nephew was African-American. According to Starks, his

nephew was charged with a felony offense and was "railroaded" into taking a plea

bargain to avoid a lengthy sentence. Jury Selection Tr. at 55. On his juror
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questionnaire, Starks also said that he believed the justice system does not treat

African-Americans fairly. During voir dire, Starks said that the government needed

to have "overwhelming" evidence to prove its case. Id. at 54. The AUSA's concerns

regarding Vanarsdale were his friendship with Starks, the fact that he had previously

served on a jury that had returned a split verdict, a question Vanarsdale asked during

voir dire about circumstantial evidence and a hypothetical vehicle stop by police, and

Vanarsdale's "demeanor." Id. at 77. The AUSA also mentioned Vanarsdale's

comment that his uncle overdosed on drugs and that he has friends and family who use

drugs but "it's their choice." Id. at 85.

The court then found that Samuels had failed to meet his burden to show

purposeful discrimination on the part of the government. See Rice, 546 U.S. at 338

(noting that burden of persuasion on this point is the defendant's). "Step three of the

Batson inquiry involves an evaluation of the prosecutor's credibility . . . ." Snyder,

128 S. Ct. at 1208. And where, as here, demeanor is mentioned as a reason for

striking a prospective juror, "the trial court's first-hand observations [are] of even

greater importance." Id. The reasons the AUSA gave for striking Starks may be

stronger than those he gave for striking Vanarsdale, but none of the reasons shows

purposeful discrimination on the part of the government. Samuels's argument that

defense counsel rehabilitated these veniremen on several of the problems noted by the

AUSA is of no avail. These were not challenges for cause, where a juror may be

rehabilitated and remain on the venire, but were peremptory challenges, where

rehabilitation does not preclude the strikes. See White v. Luebbers, 307 F.3d 722, 728

(8th Cir. 2002) (noting that the government could exercise a peremptory challenge to

excuse a potential juror who could not be removed for cause after he had been

rehabilitated by the defense), cert. denied, 538 U.S. 981 (2003); see also Batson v.

Kentucky, 476 U.S. 79, 97 (1986) ("[T]he prosecutor's explanation [for a peremptory

strike] need not rise to the level justifying exercise of a challenge for cause."). The

AUSA's explanations in this case were neither unreasonable nor improbable. See
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Miller-El, 537 U.S. at 339. We conclude that the District Court did not clearly err in

denying Samuels's Batson challenge.

For his next issue, Samuels argues that the District Court erred in denying his

motion for judgment of acquittal or, in the alternative, a new trial. This is essentially

a sufficiency-of-the-evidence challenge, with Samuels pointing out the following

problems with the evidence—or lack thereof—at trial.

The government presented no evidence of the ownership of the Dodge Charger

in which Samuels arrived at Rogers's apartment building for the controlled buys and

no evidence of the identity of the account holder for the telephone number at which

Rogers reached Samuels. Also, law enforcement did not follow up on its request for

fingerprint analysis of the drug packaging, so there was no fingerprint evidence at

trial. Law enforcement took no photographs of the drug transactions, and the

identification of Samuels made by the officers after the controlled buys was suspect

because "the photograph that they based their identification on was obtained as a

result of a misidentification of Mr. Samuels on an earlier occasion." Br. of Appellant

at 35. The visual identification also was tainted because Samuels was wearing a hat,

the officers were in a moving car and the suspect was moving when they identified

him as Samuels, the visuals were brief, and the identifications were cross-racial.

Because the actual transactions took place inside the foyer of Rogers's apartment

building, the surveilling officers did not see the exchanges take place, and no one on

the recordings mentioned drugs. Finally, key government witnesses Rogers and

Harris were not credible, as they were both criminals themselves and Rogers had told

conflicting stories about the identity of the person who actually handed over the crack

cocaine in the second controlled buy.

We review the denial of a motion for judgment of acquittal de novo, viewing

the evidence in the light most favorable to the verdict. United States v. Coplen, 533

F.3d 929, 931 (8th Cir. 2008). We have reviewed the transcript of Samuels's trial and
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have determined that a rational jury "could have found the essential elements of the

crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979).

The missing evidence that Samuels identifies might have made the government's case

stronger, but it was not necessary for proof beyond a reasonable doubt. And as this

Court has said many times, questions concerning the credibility of witnesses, where

their testimony is not incredible on its face, are for the jury to decide. See, e.g.,

Coplen, 533 F.3d at 931.

When faced with a motion for a new trial, unlike a motion for judgment of

acquittal, a district court is permitted to weigh the evidence and judge witness

credibility for itself in determining if there may have been a miscarriage of justice

such that a new trial is required. United States v. Davis, 534 F.3d 903, 912 (8th Cir.

2008). We review the District Court's denial of Samuels's new-trial motion for abuse

of discretion. Id. "Motions for new trials based on the weight of the evidence are

generally disfavored." United States v. Campos, 306 F.3d 577, 579 (8th Cir. 2002).

Samuels's argument regarding "[v]ery important evidence . . . not presented by the

government" and the credibility of Rogers and Harris is no more compelling on the

issue of a new trial than it was on the issue of judgment of acquittal. Br. of Appellant

at 34.

In its order denying Samuels's motion for a new trial, the District Court

reviewed in detail the case presented against Samuels at trial and found that the

evidence of guilt for the crimes charged was "strong" and "exceed[ed] the standard for

a new trial." Order of Aug. 30, 2007, at 15, 16. As noted above, Samuels argues that

the evidence the government did not present and the credibility of its cooperating

witnesses resulted in a verdict that should be overturned. But "the question is not

what evidence the government did not have." Campos, 306 F.3d at 581. Instead, the

court must evaluate the strength of the evidence that was presented. As for witness

credibility, the District Court noted that in deciding the motion for a new trial, it could

weigh the evidence and satisfy itself regarding witness credibility. We have no reason
7

It is confusing at times as to whether Samuels is challenging his status as a

career offender under Chapter 4 of the Sentencing Guidelines (Criminal History) or

his status as a drug offender with two prior felony drug convictions under 21 U.S.C.

§ 841. Where the distinction matters, we have given Samuels the benefit of the doubt

when considering his sentencing issues.

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to believe that the District Court did not apply these legal standards in determining

that a new trial was not warranted based on the credibility of the cooperating

witnesses. We cannot say that the District Court abused its discretion in denying

Samuels's motion for a new trial.

Samuels also challenges the District Court's imposition of a statutory mandatory

life sentence.7

 We review de novo the court's interpretation and application of the

statute. United States v. McAtee, 481 F.3d 1099, 1105 (8th Cir. 2007).

Samuels argues that his "prior convictions for a felony drug offense," 21 U.S.C.

§ 841(b)(1)(A), were improperly used to enhance his sentence for two reasons. First,

he challenges the convictions themselves, insisting that he did not commit the offenses

to which he pleaded guilty and of which he was therefore convicted. This argument

fails because the convictions in question occurred more than five years before the date

of the information that set out the notice of intent to seek enhanced penalties and

because Samuels does not now claim that he was denied the right to counsel when

convicted. See United States v. Rounsavall, 115 F.3d 561, 566 (8th Cir.), cert. denied,

522 U.S. 903 (1997); see also 21 U.S.C. § 851(e).

Samuels also argues that the convictions in question should be counted as a

single offense. The previous crimes were possession of crack cocaine on

September 4, 1994, for which Samuels was convicted and sentenced to probation on

April 25, 1996; possession of crack cocaine on February 20, 1995, for which Samuels

was convicted and sentenced to prison on April 25, 1996; and delivery of marijuana

on December 31, 1996 (after Samuels's release from prison on the second crack
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cocaine charge), for which Samuels was convicted and sentenced to probation on

January 26, 1998. We reject Samuels's argument that these three convictions

"constitute a single criminal episode." Br. of Appellant at 39. The crimes occurred

at least months and at most over two years apart and "required separate planning and

execution." McAtee, 481 F.3d at 1105 (quoting United States v. Gray, 152 F.3d 816,

821 (8th Cir. 1998), cert. denied, 525 U.S. 1169 (1999)). Two of the crimes involved

crack cocaine, one involved marijuana; two were for possession, one was for delivery;

and as Samuels acknowledges, they were all separated by intervening arrests and the

last two were separated by time served in prison. They do not become a single

offense, as Samuels maintains, merely because they all involved small amounts of

controlled substances and all occurred in Chicago.

Samuels also argues that the state-law possession offenses would be

misdemeanors, not felonies, under federal law and so cannot be used to sentence him

to a statutory mandatory life sentence. In support of this argument, he cites the

Supreme Court's opinion in Lopez v. Gonzales, 127 S. Ct. 625 (2006), where the

Court discussed the meaning of a "felony punishable under the Controlled Substances

Act" in an immigration removal case. But "felony drug offense" for purposes of

statutory enhancement under § 841(b)(1) is defined by 21 U.S.C. § 802(44) as "an

offense that is punishable by imprisonment for more than one year" under any federal

or state law. Samuels's argument therefore fails.

It appears that Samuels also makes a Sentencing Guidelines "reasonableness"

challenge, claiming that "the district court erred in enhancing his sentence as a career

offender." Br. of Appellant at 39. This argument is without merit. The District Court

sentenced Samuels to life in prison as required by § 841(b)(1), not as a career offender

under the Guidelines. In this situation, "reasonableness" under the Guidelines is not

implicated. See United States v. Gregg, 451 F.3d 930, 937 (8th Cir. 2006). 

We affirm Samuels's convictions and sentence.

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