USA v. Michael A. Ealey

1The Honorable Richard W. Goldberg, Judge, United States Court of
International Trade, sitting by designation.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 98-3936
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Raydell Lacey, also known as Lacey, *
also known as Camile, also known as *
Raydell Laye Lacey, also known as *
Raydell F. Lacey, *
*
Appellant. *
___________
Submitted: April 11, 2000
Filed: July 19, 2000
___________
Before WOLLMAN, Chief Judge, MURPHY, Circuit Judge, and GOLDBERG,1
Judge.
___________
WOLLMAN, Chief Judge.

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2The Honorable Michael J. Melloy, then Chief Judge, United States District
Court for the Northern District of Iowa.
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Raydell Lacey appeals from her conviction for conspiracy to distribute cocaine
and crack cocaine in violation of 21 U.S.C. § 846 and from the district court’s2 denial
of her motion for a mistrial. We affirm.
I.
On September 25, 1995, Cedar Rapids, Iowa, police officers obtained a warrant
to search an apartment shared by Lacey and Kelvin Knight. Much of the information
used to procure the warrant was provided by Sue Zieser Perkins (Zieser), a confidential
informant who made a controlled drug buy from Lacey and provided police with
additional information regarding Lacey’s alleged drug activity. Later that day, officers
executed the warrant and discovered cocaine, crack cocaine, a pager, a glass tube with
residue consistent with the production of crack cocaine, and other drug packaging and
use paraphernalia. Lacey and Knight were charged with possession with intent to
distribute cocaine and crack cocaine and conspiracy to distribute these substances.
Lacey was tried before a jury in August of 1998. Among the government’s
witnesses was Zieser. The government failed to inform Lacey prior to trial that Zieser
was the confidential informant used to secure the September 1995 warrant, and during
direct examination Zieser testified only about other drug purchases that she had made
from Lacey, making no specific mention of the controlled buy. As a result, Lacey did
not learn of Zieser’s cooperation with the police until a sidebar conference during
Lacey’s cross-examination of Zieser. Upon learning of this information, Lacey moved
for a mistrial.
The court deferred ruling on Lacey’s motion and proceeded with trial. The jury
convicted Lacey of conspiracy to distribute cocaine and crack cocaine but failed to

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reach a verdict on the possession with intent charge. Lacey then moved for a judgment
of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure and for a
new trial under Rule 33, asserting in each motion that there was insufficient evidence
to support her conviction. The court denied Lacey’s motion for a mistrial and her Rule
29 and Rule 33 motions and sentenced her to 121 months’ imprisonment and eight
years’ supervised release. This appeal followed.
II.
Lacey first contends that the district court improperly denied her motion for a
mistrial. She argues that the government’s failure to disclose Zieser’s cooperation with
the police hindered her ability to impeach Zieser’s credibility, thus violating her Sixth
Amendment right to confrontation and warranting a declaration of mistrial. We may
reverse a district court’s denial of a motion for a mistrial only if the denial was an abuse
of discretion that clearly prejudiced the moving party. United States v. Van Chase, 137
F.3d 579, 583 (8th Cir. 1998).
“The Confrontation Clause of the Sixth Amendment guarantees to a defendant
the opportunity for effective cross-examination of witnesses against [her], including
inquiry into the witnesses’ motivation and bias.” United States v. Triplett, 104 F.3d
1074, 1079 (8th Cir. 1997) (quoting United States v. Willis, 997 F.2d 407, 415 (8th
Cir. 1993)). This guarantee is not without limitation, however, as district courts “retain
wide latitude . . . to impose reasonable limits on cross-examination when they have
concerns about harassment, prejudice, confusion of the issues, a witness’s safety, or
interrogation that is repetitive or only marginally relevant.” United States v. Stewart,
122 F.3d 625, 626-27 (8th Cir. 1997). The Confrontation Clause is thus violated only
“when the defendant shows ‘[s]he was prohibited from engaging in otherwise
appropriate cross-examination designed to show a prototypical form of bias on the part
of the witness.’” United States v. Boykin, 986 F.2d 270, 276 (8th Cir. 1993) (quoting
Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986)).

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3The district court withheld the specific details of the unrelated investigation in
which Zieser assisted because it found that they were not relevant to any bias or
improper motivation that Zieser may have had. Lacey does not contest this ruling.
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We conclude that Lacey was not improperly prohibited from effectively cross-
examining Zieser. Although the government failed to disclose Zieser’s police
involvement prior to trial, once that fact was disclosed the court halted the trial and
ordered the government to produce all police reports regarding Zieser’s involvement
in this case and in any other drug investigation. The court then conducted an in camera
review of these materials and disclosed to Lacey all information pertaining to her case,
as well as all relevant information regarding Zieser’s cooperation in an unrelated
investigation.3 Following this disclosure, Lacey’s counsel was given the opportunity
to question Zieser regarding these matters but declined to do so. Thus, the
Confrontation Clause was satisfied. See Van Arsdall, 475 U.S. at 679 (“[T]he
Confrontation Clause guarantees an opportunity for effective cross-examination . . . .”
(citation omitted) (emphasis in original)); United States v. Ortega, 150 F.3d 937, 941
(8th Cir. 1998).
Particularly instructive on this point is our ruling in Boykin. See 986 F.2d at
276-77. There, we held that the government’s failure to initially disclose information
showing that a government witness may have perjured himself did not violate the
Confrontation Clause because the defendant was eventually given the opportunity to
confront the witness with this information at trial. See id. We reasoned that “[the
witness’s] perjury was revealed before the trial was over, he was recalled to the
witness stand, and [the defendant] ‘had the opportunity to expose to the jury the facts
that would allow the jury to draw inferences regarding [the witness’s] credibility.’” Id.
at 277 (quoting United States v. Simmons, 964 F.2d 763, 770 (8th Cir. 1992)). The
same is true here: Lacey learned of Zieser’s police cooperation at the close of her
cross-examination of Zieser and the court gave Lacey’s counsel the opportunity to
recall Zieser to the stand and question her regarding these matters. Thus, Lacey cannot

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now claim that she was “prohibited from engaging in otherwise appropriate cross-
examination designed to show a prototypical form of bias on the part of the witness.”
Boykin, 986 F.2d at 276 (quoting Van Arsdall, 475 U.S. at 680).
In a related argument, Lacey asserts that the government failed to tender to the
district court all existing evidence regarding Lacey’s police cooperation and thus
violated the disclosure requirements of Brady v. Maryland. See 373 U.S. 83, 87 (1963)
(requiring government to provide defendant with evidence material to defendant’s guilt
or punishment). We disagree. Brady requires the government to disclose to a
defendant only evidence that is in the government’s possession or that of which the
government is aware. See United States v. Turner, 104 F.3d 217, 220 (8th Cir. 1997);
United States v. Jones, 34 F.3d 596, 599-600 (8th Cir. 1994). Here, there is no
evidence that there exists any information regarding Lacey’s police cooperation other
than that which was given to the district court at trial. Thus, the dictates of Brady were
not violated.
In light of the sequence of events at trial, we conclude that the district court did
not abuse its discretion in denying Lacey’s motion for a mistrial.
II.
Lacey also contends that her conviction is not supported by sufficient evidence
and thus that the district court improperly denied her Rule 29 and Rule 33 motions. We
turn first to Lacey’s Rule 29 motion for judgment of acquittal. In reviewing a district
court’s denial of a motion for acquittal based on the insufficiency of the evidence, we
view the evidence in the light most favorable to the verdict and will reverse only if no
reasonable jury could have found beyond a reasonable doubt that the defendant is guilty
of the offense charged. See United States v. Scott, 91 F.3d 1058, 1061 (8th Cir. 1996).
To be guilty of conspiracy, a defendant must be shown to have knowingly entered into

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an agreement with at least one other person to violate the law. See United States v.
Holloway, 128 F.3d 1254, 1257 (8th Cir. 1997).
After reviewing the record, we are satisfied that there is ample evidence to
support a jury finding that Lacey entered into an agreement with Knight to distribute
controlled substances. A search of the residence shared by Lacey and Knight revealed
more than 5 grams of crack cocaine, 53 grams of cocaine, and various items of drug
trafficking paraphernalia. In addition, Zieser testified that Knight would often deliver
drugs that Zieser previously had agreed via telephone to purchase from Lacey. Tally
Morales and Ted Hinrichsen offered similar testimony linking Knight and Lacey
together in a joint venture to distribute cocaine and crack cocaine. Lacey attacks the
credibility of these witnesses, but in considering a motion for acquittal we defer to the
jury’s assessment of witness credibility, and here the jury deemed them credible. See
Scott, 91 F.3d at 1062; United States v. Brown, 956 F.2d 782, 785-86 (8th Cir. 1992).
Thus, based on the foregoing evidence, we cannot conclude that no reasonable jury
could have found Lacey guilty of conspiring to distribute cocaine and crack cocaine.
Accordingly, the district court properly denied Lacey’s motion for acquittal.
We turn next to Lacey’s Rule 33 motion for a new trial. A district court may
grant a new trial for insufficiency of the evidence “only if the evidence weighs heavily
enough against the verdict that a miscarriage of justice may have occurred.” Brown,
956 F.2d at 786 (quoting United States v. Lanier, 838 F.2d 281, 284-85 (8th Cir.
1988)). In making this determination, the court need not view the evidence in the light
most favorable to the government, but may instead weigh the evidence and evaluate for
itself the credibility of the witnesses. See Brown, 956 F.2d at 786. We review the
denial of a motion for a new trial for a clear and manifest abuse of discretion. See
United States v. Goodson, 155 F.3d 963, 967 (8th Cir. 1998).
Again, after reviewing the evidence, we find no abuse of discretion in the court’s
denial of Lacey’s new trial motion. Although the testimony of Zeiser, Morales, and

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Hinrichsen was not without flaw, the cumulative effect of this evidence, together with
the contraband discovered during the search of Lacey’s and Knight’s apartment,
satisfies us that no miscarriage of justice has occurred.
The judgment is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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