United States v. Samuel Acosta

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-2018
___________
United States of America, *
*
Appellee, *
*
v. *
*
Marquise Laguan Bowie, *
*
Appellant. *
___________
Appeal from the United States
No. 09-2295 District Court for the
___________ District of Minnesota.
United States of America, *
*
Appellee, *
*
v. *
*
Joe Darrell Edwards, Jr., *
*
Appellant. *
___________
Submitted: March 11, 2010
Filed: August 25, 2010
___________

-- 1 of 25 --

Before RILEY, Chief Judge,1 BRIGHT and WOLLMAN, Circuit Judges.
___________
RILEY, Chief Judge.
Marquise Laguan Bowie, Joe Darrell Edwards, Jr., and ten other members of
the Minneapolis, Minnesota gang, the Rolling Thirties Bloods (RTB), were indicted
on federal drug and firearms charges. Bowie pled guilty to conspiracy to distribute
and possess with intent to distribute 50 grams or more of crack cocaine, and the
district court 2 sentenced Bowie to 175 months imprisonment. After a bench trial, the
district court found Edwards guilty of conspiracy to distribute and possess with intent
to distribute 50 grams or more of crack cocaine and conspiracy to possess firearms
during and in relation to a drug trafficking crime, and sentenced Edwards to 206
months imprisonment. Bowie and Edwards challenge their convictions and sentences
on various grounds. We affirm.
I. BACKGROUND
On August 22, 2007, a grand jury returned a forty count indictment against
Bowie, Edwards, and other RTB gang members. Count 1 of the indictment charged
each of the co-defendants with conspiracy to distribute and possess with intent to
distribute 50 grams or more of crack cocaine from 1990 through August 2007, in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), and 846; Count 2 of the indictment
charged each of the co-defendants with conspiracy to possess firearms during and in
relation to a drug trafficking crime from 1990 to August 2007, in violation of 18
U.S.C. § 924(o). The indictment also charged Bowie with two counts, and Edwards
1The Honorable William Jay Riley became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on April 1, 2010.
2The Honorable Donovan W. Frank, United States District Judge for the District
of Minnesota.
-2-

-- 2 of 25 --

with one count, of aiding and abetting distribution of crack cocaine, in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(C), and 18 U.S.C. § 2.
A. Bowie
On February 1, 2008, Bowie pled guilty to Count 1 of the indictment pursuant
to a written plea agreement. The district court found Bowie entered the plea
knowingly and voluntarily and accepted Bowie’s guilty plea. Over a year later, on
February 13, 2009, Bowie filed pro se motions to withdraw his guilty plea and fire his
attorney for ineffective assistance of counsel. Bowie’s counsel did not join Bowie’s
pro se motions. Bowie claimed (1) he was not aware of the full nature of the plea
agreement; (2) his attorney failed to explain the plea agreement line by line; (3) the
plea agreement did not provide an accurate portrayal of Bowie’s role in the
conspiracy; (4) Bowie only signed the agreement at the direction of his attorney;
(5) Bowie’s attorney failed to object to any portion of the plea agreement; (6) Bowie’s
attorney did not advise him of the applicable United States Sentencing Guidelines
(Guidelines or U.S.S.G.) provisions; (7) Bowie requested, but never received, a copy
of the indictment, a bill of particulars, and other documents; and (8) Bowie believed
the indictment was based on false testimony.
The district court convened a hearing to address Bowie’s motions. After
hearing from Bowie, Bowie’s attorney, and the government, the district court
determined there was “no fair and just reason to grant withdrawal of the plea at this
time,” and denied Bowie’s motion to fire his attorney.
In March 2009, the district court sentenced Bowie. Bowie moved for a
downward variance based on the sentencing disparity between crack cocaine and
powder cocaine offenses and the resulting racial impact, and the parties addressed this
issue at the sentencing hearing. Although the district court did not vary downward
based on the crack versus powder cocaine ratio, the court gave credit to Bowie for
time served and sentenced him to 175 months imprisonment.
-3-

-- 3 of 25 --

B. Edwards
Edwards pled not guilty to the charges against him and filed various motions,
including a motion for a bill of particulars and a motion to dismiss the charges against
him, which the district court denied. Before trial, Edwards filed additional motions,
including a motion to compel the government to disclose certain witness statements
and a motion to dismiss the indictment. The district court granted in part, and denied
in part, Edwards’s motion for disclosure of witness statements, and denied the motion
to dismiss the indictment.
After Edwards waived his right to a jury trial, the district court presided over
a bench trial in July and August of 2008. In September 2008, the district court found
Edwards guilty of the crack cocaine and firearms conspiracies charged in Counts 1
and 2 of the indictment and not guilty of the charge of aiding and abetting distribution
of crack cocaine. Edwards filed a motion for a judgment of acquittal, a new trial, or
to re-open, which the district court denied in its entirety. The district court initially
sentenced Edwards to two concurrent terms of 216 months imprisonment but later
reduced the terms of imprisonment to 206 months to give Edwards credit for time
served.
II. DISCUSSION
A. Bowie’s Arguments
Bowie challenges his conviction and sentence, arguing the district court
(1) failed to establish a factual basis for Bowie’s guilty plea, (2) erred in denying
Bowie’s motion to withdraw his guilty plea, and (3) erroneously refused to consider
the crack versus powder cocaine sentencing disparity in fashioning Bowie’s sentence.
1. Factual Basis for Guilty Plea
Bowie first contends his guilty plea had an insufficient factual basis. Bowie
insists, because the case involved a complex conspiracy over a seventeen year period,
the district court’s paraphrasing of the plea agreement was insufficient to establish a
factual basis for the plea. We disagree.
-4-

-- 4 of 25 --

Under Fed. R. Crim. P. 11(b)(3), “[b]efore entering judgment on a guilty plea,
the court must determine that there is a factual basis for the plea.” “A guilty plea is
supported by an adequate factual basis when the record contains ‘sufficient evidence
at the time of the plea upon which a court may reasonably determine that the
defendant likely committed the offense.’” United States v. Cheney, 571 F.3d 764, 769
(8th Cir. 2009) (quoting United States v. Gamble, 327 F.3d 662, 664 (8th Cir. 2003)).
“We have held that facts gathered from the prosecutor’s summarization of the plea
agreement and the language of the plea agreement itself, a colloquy between the
defendant and the district court, and the stipulated facts before the district court, are
sufficient to find a factual basis for a guilty plea.” United States v. Brown, 331 F.3d
591, 595 (8th Cir. 2003) (internal citations omitted).
The transcript of Bowie’s plea hearing reveals the district court had sufficient
information to reasonably determine Bowie likely committed the offense. The district
court stated,
I will go back to the first page of the agreement called the factual
basis. . . .
It states that you agree that from at least 1998 through October of
2007, here in Minnesota, that you did knowingly and intentionally,
conspir[e] with other people . . . to possess with intent to distribute and
to distribute more than 50 grams of crack cocaine. Is that true, sir?
Bowie responded, “Yes, sir.” Bowie also agreed the conspiracy involved more than
1.5, but less than 4.5, kilograms of crack cocaine. Bowie unequivocally admitted he
participated in the crack cocaine distribution conspiracy, both in writing and at the
plea hearing. In addition, Bowie admitted to the probation officer who prepared his
presentence investigation report “that he distributed up to an ‘eight-ball’ of cocaine
base per week” from the age of seventeen to twenty-five. We conclude the district
court adequately established a factual basis for Bowie’s guilty plea before entering
judgment.
-5-

-- 5 of 25 --

2. Motion to Withdraw Guilty Plea
Next, Bowie argues the district court erred in denying Bowie’s motion to
withdraw his guilty plea. We review a district court’s denial of a motion to withdraw
a guilty plea for abuse of discretion. See United States v. Davis, 583 F.3d 1081, 1089
(8th Cir. 2009). “A defendant may withdraw a plea of guilty . . . after the court
accepts the plea, but before it imposes sentence if . . . the defendant can show a fair
and just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). “In
addition to a ‘fair and just reason’ for withdrawal, a district court may consider
whether the defendant asserts his legal innocence to the charge, the length of time
between the guilty plea and the motion to withdraw, and whether the withdrawal
would prejudice the government.” United States v. Teeter, 561 F.3d 768, 770 (8th
Cir. 2009). “‘A guilty plea is a solemn act not to be set aside lightly.’” Davis, 583
F.3d at 1089 (quoting United States v. Prior, 107 F.3d 654, 657 (8th Cir. 1997)).
On appeal, Bowie claims he should have been allowed to withdraw his guilty
plea because he did not understand the conspiracy charge to which he pled guilty.
However, at the plea hearing, Bowie confirmed (1) no one had threatened him or
forced him to sign the plea agreement; (2) he understood he was pleading guilty to
Count I of the indictment; (3) he was aware there was a statutory mandatory minimum
of ten years imprisonment and a maximum of life imprisonment for the offense
described in Count I; (4) he agreed the conspiracy involved more than 1.5 kilograms,
but less than 4.5 kilograms, of crack cocaine; (5) he was aware his offense level and
criminal history category would determine his Guidelines range; and (6) he
understood that once he entered a guilty plea, it would be “very difficult . . . to back
out of the agreement.” Like the district court, we conclude Bowie failed to show a fair
and just reason for his request to withdraw his guilty plea more than one year after he
entered the plea. “‘Post-plea regrets by a defendant caused by contemplation of the
prison term he faces are not a fair and just reason for a district court to allow a
defendant to withdraw a guilty plea, or for this court to reverse the district court.’” Id.
(quoting Teeter, 561 F.3d at 770-71).
-6-

-- 6 of 25 --

3. Bowie’s Sentence
Lastly, Bowie maintains the district court erred in refusing to consider the
sentencing disparity between crack cocaine and powder cocaine offenses in fashioning
Bowie’s sentence. We review the sentence imposed by a district court for an abuse
of discretion. See United States v. Lomeli, 596 F.3d 496, 503 (8th Cir. 2010). In so
doing, we “giv[e] due deference to the district court’s decision.” Id. (quoting United
States v. Braggs, 511 F.3d 808, 812 (8th Cir. 2008)). We must first “ensure that the
district court committed no significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range, treating the Guidelines as mandatory,
failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the chosen sentence.” Id.
(quoting Gall v. United States, 552 U.S. 38, 51 (2007)). If we determine the district
court did not commit procedural error, we then consider the substantive
reasonableness of the sentence. See id.
Bowie insists his sentence should be vacated because the record is silent as to
whether the district court was aware of its authority to consider the crack versus
powder cocaine sentencing disparity in sentencing Bowie. We disagree. Although
it would have been preferable for the district court to address explicitly Bowie’s
motion for a downward variance based on the sentencing disparity, we find no error
in the district court’s failure to do so. In United States v. Boyce, 564 F.3d 911, 917
(8th Cir. 2009), we held “[t]he district court need not respond to every argument
advanced by a defendant,” and where “[b]oth [counsel for the defendant] and the
government commented on the district court’s discretion to consider this disparity, . . .
we may presume the district court was aware of this policy guidance.” Furthermore,
“[w]hile the district court would have been within its discretion to consider the crack
versus powder cocaine disparity in sentencing [Bowie], the district court certainly was
not required to vary downward on this basis.” Davis, 583 F.3d at 1099. The district
court committed no procedural error and Bowie’s sentence is not substantively
unreasonable. We affirm the district court’s judgment with respect to Bowie.
-7-

-- 7 of 25 --

B. Edwards’s Arguments on Appeal
We next consider Edwards’s appeal. Edwards challenges his conviction and
sentence on various grounds, arguing (1) the evidence at trial was insufficient to
support his conviction; (2) the district court admitted improper evidence at trial;
(3) prosecutorial misconduct deprived him of a fair trial; (4) the district court was
biased against him, which prejudiced the verdict; (5) the district court erred in denying
him a bill of particulars; (6) the district court erred in denying his motion to dismiss
the indictment; (7) the district court erred in failing to order disclosure of exculpatory
evidence; and (8) the district court abused its discretion in sentencing him.
1. Sufficiency of the Evidence
Edwards first claims the government failed to present sufficient evidence to
support the district court’s findings beyond a reasonable doubt that Edwards
participated in the crack cocaine and firearms conspiracies. Edwards insists his
convictions were based solely on irrelevant RTB gang evidence, and vague and
incredible testimony from RTB members seeking lower sentences.
“In reviewing the sufficiency of the evidence after a bench trial, we apply the
same standard that we apply when reviewing a jury verdict.” United States v.
Vaughn, 410 F.3d 1002, 1004 (8th Cir. 2005). “‘We review the sufficiency of the
evidence de novo, viewing evidence in the light most favorable to the government,
resolving conflicts in the government’s favor, and accepting all reasonable inferences
that support the verdict.’” United States v. Lockett, 601 F.3d 837, 840 (8th Cir. 2010)
(quoting United States v. Washington, 318 F.3d 845, 852 (8th Cir. 2003)). “When
considering a challenge to a conspiracy conviction based upon sufficiency of the
evidence, ‘we will affirm if the record, viewed most favorably to the government,
contains substantial evidence supporting the jury’s verdict, which means evidence
sufficient to prove the elements of the crime beyond a reasonable doubt.’” United
States v. Hodge, 594 F.3d 614, 617 (8th Cir. 2010) (quoting United States v. Lopez,
443 F.3d 1026, 1030 (8th Cir. 2006) (en banc)). A verdict will only be overturned “if
-8-

-- 8 of 25 --

no reasonable jury could have found [the defendant] guilty beyond a reasonable
doubt.” United States v. Gray, 369 F.3d 1024, 1028 (8th Cir. 2004).
“To establish that a defendant conspired to distribute drugs under 21 U.S.C.
§ 846, the government must prove: (1) that there was a conspiracy, i.e., an agreement
to distribute the drugs; (2) that the defendant knew of the conspiracy; and (3) that the
defendant intentionally joined the conspiracy.” United States v. Hernandez, 569 F.3d
893, 896 (8th Cir. 2009) (quoting United States v. Jiminez, 487 F.3d 1140, 1146 (8th
Cir. 2007)). “To establish that a defendant conspired to use, carry or possess a firearm
in violation of [18 U.S.C.] § 924(c) and (o), the Government must prove: (1) that there
was a conspiracy, i.e., an agreement either to use or carry a firearm during and in
relation to a drug trafficking crime or to possess a firearm in furtherance of a drug
trafficking crime; (2) that the defendant knew of the conspiracy; and (3) that the
defendant intentionally joined the conspiracy.” United States v. Saddler, 538 F.3d
879, 889 (8th Cir. 2008). “A formal agreement is not required to create a conspiracy,
and the existence of a conspiracy can be proved by direct or circumstantial evidence.”
United States v. Williams, 534 F.3d 980, 985 (8th Cir. 2008).
The district court issued a thirty-four page memorandum with findings of fact
and conclusions of law, finding Edwards guilty of both the crack cocaine and firearms
conspiracies. The district court found Edwards joined the RTB in 1983 when he was
approximately 12 years old, and he held the status of an “Original Blood” or an
“Original Gangster,” meaning he was an older, generally more respected member of
the gang. The court heard evidence that RTB members “who seriously identify with
the gang’s values and rules” were called “riders.” While incarcerated, Edwards wrote
letters indicating Edwards viewed himself as a rider. The district court determined the
RTB gang members “established themselves as the exclusive crack cocaine dealers
within their territory” in South Minneapolis. The court heard testimony there was an
agreement and understanding among RTB members to sell drugs in their territory and
ensure the territory was protected from rival gangs. The district court found the RTB
-9-

-- 9 of 25 --

members possessed and used firearms to facilitate drug transactions and to protect
their territory.
The district court specifically found credible testimony that Edwards was a part
of the agreement or understanding among the RTB members and Edwards personally
possessed and sold crack cocaine and possessed firearms in connection with his RTB
gang activities. In finding Edwards guilty of the conspiracy charges, the district court
clarified,
The Court does not base its findings upon [Edwards’s] membership in or
association with a particular group. The Court’s findings are based on
evidence that [Edwards] was a participant in an agreement or
understanding among the members of [RTB] to control their territory for
the exclusive sale of crack cocaine, using and through the possession of
firearms, and [Edwards’s] knowing support for, and activities in
furtherance of, that agreement.
On appeal, Edwards relies largely on the fact he was imprisoned during the vast
majority of the alleged seventeen-year conspiracy to support his argument that there
is insufficient evidence to support his convictions. “In order to withdraw from a
conspiracy, a defendant ‘must demonstrate that he took affirmative action to withdraw
from the conspiracy by making a clean breast to the authorities or by communicating
his withdrawal in a manner reasonably calculated to reach his coconspirators.’”
United States v. Jackson, 345 F.3d 638, 648 (8th Cir. 2003) (quoting United States v.
Zimmer, 299 F.3d 710, 718 (8th Cir. 2002)). “A cessation of activities, alone, is not
sufficient to establish a withdrawal from the conspiracy.” Id. The district court
acknowledged Edwards was incarcerated for a large portion of the alleged conspiracy;
however, the court found Edwards maintained his gang membership and continued to
support the gang’s goals while in prison. The district court further found Edwards
never “took any affirmative steps to withdraw from the conspiracy during the time he
was incarcerated or at any other time.” The district court’s findings that Edwards’s
-10-

-- 10 of 25 --

activities while in prison and during the short periods of time he was out of jail were
inconsistent with withdrawal are supported by sufficient evidence in the record and
are reasonable.
Next Edwards suggests his conviction cannot stand because he was convicted
based upon guilt by association. Edwards concedes the government may have
demonstrated other RTB members were involved in drug distribution, but he insists
the government did not present sufficient evidence to prove Edwards was involved in
the drug trafficking and firearms conspiracies. Edwards insists the only evidence
tying him to drug trafficking and firearm activity is vague, uncorroborated testimony
from cooperating witnesses, and Edwards goes to great lengths to discredit the
cooperating witnesses’ testimony.
Four RTB members testified against Edwards. Soloman Shannon and Calvin
Ferguson each testified they personally observed Edwards sell crack cocaine and
possess or talk about possessing a firearm. George Dixon and Jomoy Lee both
reported they provided Edwards with crack cocaine, knowing Edwards intended to sell
it. The district court acknowledged these four witnesses “could not identify the
specific date or dates on which they gave or sold drugs to [Edwards] or saw [Edwards]
selling drugs,” but the district court explained this was not surprising because
“individual instances of drug sales would not be an especially memorable event” for
an RTB member. The district court also observed, “it seems likely . . . that if the gang
members were making up evidence against [Edwards], they would have said things
that were more incriminating for [Edwards].”
“It is well-established that ‘the uncorroborated testimony of an accomplice is
sufficient to sustain a conviction if the testimony is not otherwise incredible or
unsubstantial on its face.’” Vaughn, 410 F.3d at 1004 (quoting United States v. Dunn,
494 F.2d 1280, 1281-82 (8th Cir. 1974)). “It is the function of the [trier of fact], not
an appellate court, to resolve conflicts in testimony or judge the credibility of
-11-

-- 11 of 25 --

witnesses.” Hernandez, 569 F.3d at 897 (quoting United States v. Harrison, 671 F.2d
1159, 1162 (8th Cir. 1982)). “Such credibility findings are virtually ‘unreviewable
on appeal.’” Id. (quoting Boyce, 564 F.3d at 916) (internal marks omitted). The
district court expressly found Shannon, Dixon, Ferguson and Lee gave credible
testimony concerning Edwards’s involvement in the conspiracies to distribute crack
cocaine and possess firearms in relation to the drug trafficking. The district court was
in the best position to observe the witnesses’ demeanor and assess their credibility,
and we will not disturb the district court’s reasoned credibility determinations.
“[V]iewing evidence in the light most favorable to the government, resolving
conflicts in the government’s favor, and accepting all reasonable inferences that
support the verdict,” Lockett, 601 F.3d at 840, we find the government presented
sufficient evidence for a reasonable jury to find Edwards guilty beyond a reasonable
doubt of participating in the crack cocaine and firearms conspiracies. See Gray, 369
F.3d at 1028; see also Lopez, 443 F.3d at 1030 (“[A] defendant may be convicted for
even a minor role in a conspiracy, so long as the government proves beyond a
reasonable doubt that he or she was a member of the conspiracy.”).
2. Evidentiary Issues
Edwards next argues the district court abused its discretion “by admitting
evidence of 21 incidents involving RTB members that had nothing to do with Mr.
Edwards” and by admitting “Edwards’ prison correspondence, notes and photographs
allegedly related to the RTBs that had nothing to do with drugs or firearms.” Edwards
maintains the prejudicial effect of this evidence substantially outweighed any
probative value. Edwards suggests the government attempted to equate Edwards’s
RTB membership with criminality, and “[t]he district court heavily relied on the
inflammatory gang evidence” in convicting Edwards of the crack cocaine and firearms
conspiracies. Edwards makes general arguments in support of his position, but directs
us to only one specific incident and one specific piece of evidence that he believes
were erroneously admitted.
-12-

-- 12 of 25 --

“We review a district court’s evidentiary rulings for abuse of discretion.”
United States v. Smith, 591 F.3d 974, 979 (8th Cir. 2010). “‘We will not reverse a
judgment on the basis of erroneous evidentiary rulings absent a showing that those
rulings had a substantial influence on the jury’s verdict.’” Id. (quoting United States
v. Haskell, 468 F.3d 1064, 1074 (8th Cir. 2006)). “Under [Fed. R. Evid.] 403,‘great
deference’ is given to a district court’s balancing of the relative value of a piece of
evidence and its prejudicial effect.” Jiminez, 487 F.3d at 1145 (quoting United States
v. Lupino, 301 F.3d 642, 646 (8th Cir. 2002)); see Fed. R. Evid. 403 (“Although
relevant, evidence may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.”). “Moreover, the discretion accorded lower courts in
determining admissibility of evidence is particularly broad in a conspiracy trial.”
United States v. Willis, 997 F.2d 407, 414 (8th Cir. 1993) (quoting United States v.
Kroh, 915 F.2d 326, 331 (8th Cir. 1990) (en banc)) (internal marks omitted).
In the district court’s findings of fact and conclusions of law, the court
explained its findings were not based on Edwards’s RTB membership; instead, the
court made an explicit finding that Edwards was a participant in the RTB members’
agreement or understanding to sell crack cocaine and to possess firearms in
connection with the drug trafficking. “In a conspiracy case, ‘each member of a
conspiracy may be held criminally liable for any substantive crime committed by a
co-conspirator in the course and furtherance of the conspiracy, even though those
members did not participate in or agree to the specific criminal act.’” United States
v. Johnston, 353 F.3d 617, 624 (8th Cir. 2003) (quoting United States v. Escobar, 50
F.3d 1414, 1420 (8th Cir. 1995)). Such evidence is relevant when it “illustrate[s] the
extent of the conspiracy’s operation.” Id. We also have a little more confidence on
close evidentiary issues when the district court is the trier of fact and will itself sort
-13-

-- 13 of 25 --

through the evidence in arriving at a verdict. The district court did not abuse its
discretion in admitting evidence relating to activities of Edwards’s co-conspirators.
3. Prosecutorial Misconduct
Edwards claims the government engaged in prosecutorial misconduct by asking
leading questions twenty-four times, intimidating Edwards’s supporters in the
courtroom, and referring to the stricken testimony of one of Edwards’s witnesses in
the government’s written closing argument.
To obtain a reversal based on prosecutorial misconduct to which there
was proper objection, a defendant must show that (1) the prosecutor’s
remarks or conduct were improper, and (2) the remarks or conduct
affected the defendant’s substantial rights so as to deprive him of a fair
trial. If the remarks were improper, then we determine whether they
deprived the defendant of a fair trial by examining the cumulative effect
of the misconduct, the strength of the properly admitted evidence of the
defendant’s guilt, and any curative actions taken by the trial judge.
United States v. New, 491 F.3d 369, 377 (8th Cir. 2007) (internal citation omitted).
“The ultimate question is ‘whether the prosecutor’s comments, if improper, so
infected the trial with unfairness as to make the resulting conviction a denial of due
process.’” Id. (quoting United States v. Mullins, 446 F.3d 750, 757 (8th Cir. 2006)).
“[A]lthough Federal Rule of Evidence 611(c) generally discourages the use of
leading questions on direct [examination], it is not automatically improper for the
prosecutor to ask such questions or for the district court to permit their use.” United
States v. Fenner, 600 F.3d 1014, 1022 (8th Cir. 2010). Leading questions on direct
examination are permitted “to develop the witness’ testimony” and to inquire of a
hostile or adverse witness. Fed. R. Evid. 611(c). “[T]he trial judge has wide latitude
in permitting leading questions because he or she is in the best position to determine
the need for them.” Fenner, 600 F.3d at 1022. Edwards alleges the government
continued to ask leading questions despite the fact the district court sustained
-14-

-- 14 of 25 --

Edwards’s objection to a leading question on at least twenty-four occasions, and the
cumulative effect of the leading questions tainted the district court’s verdict and
warrants reversal. We disagree. Edwards’s trial lasted nine days, and we cannot say
twenty-four instances of leading questions over the course of the trial so affected
Edwards’s substantial rights as to deprive him of a fair trial.
Similarly we find no prosecutorial misconduct based on the government’s
questioning of Ferguson. During Ferguson’s direct examination, counsel for the
government left the podium to point out people sitting in the gallery of the courtroom
and asked Ferguson whether he recognized them. The district court asked counsel to
return to the front of the courtroom, but allowed the questioning to continue. Counsel
for the government asked Ferguson why he thought the people were in the courtroom,
and Ferguson responded, “Probably to intimidate me or getting me to change what I’m
saying about [Edwards].” The people in the back of the courtroom were Edwards’s
brothers, cousin, and nephews. The question as framed was speculative and lacked
foundation as to why the people actually were present, but was relevant and
admissible to show Ferguson’s state of mind in recognizing the people present. The
district court found no misconduct and denied Edwards’s motion to dismiss the case
based on deprivation of Edwards’s Sixth Amendment rights. We agree with the
district court. Assuming, without deciding, the government’s conduct in pointing out
specific members of the gallery was improper, we would nevertheless conclude this
conduct did not deprive Edwards of a fair trial.
Finally, Edwards claims prosecutorial misconduct based on the government’s
reference in its written closing argument to the stricken testimony of one of Edwards’s
witnesses, Armel Green. Four days before the government submitted its written
closing argument, the district court entered an ordering striking Green’s testimony in
its entirety for lack of credibility and probative value. The government’s written
closing argument addressed Green’s testimony, urging the district court, “Greene’s
testimony should not be stricken from the record, but it should be disregarded in its
-15-

-- 15 of 25 --

entirety, because it is false.” We find no misconduct. The district court was aware of
its decision to strike Green’s testimony, saying “Green’s testimony [is] so lacking in
credibility . . . [it] would have had no bearing on this Court’s decision.” The
government’s reference to the testimony was harmless.
4. Judicial Bias
Edwards claims he did not receive a fair trial because the district court was
biased against him. According to Edwards,
[t]he district court judge established that he was personally biased
against Mr. Edwards through the combination of [the court’s] criticism
of Edwards’ trivial act of greeting court staff by her first name, anger
expressed towards counsel during the proceedings, and concluding the
trial with a personal anecdote of how he got revenge on people who were
rude.
Edwards failed to raise the issue of judicial bias before the district court. We
thus review this claim for plain error. See United States v. Sypolt, 346 F.3d 838, 839
(8th Cir. 2003). “In order to prevail, [a defendant] must show that the district court’s
failure to recuse was clearly improper under the law, affected his substantial rights,
and seriously affected the fairness, integrity, or public reputation of judicial
proceedings.” Id. at 839 (quoting United States v. Olano, 507 U.S. 725, 736 (1993))
(internal marks omitted).
The Supreme Court has specifically held that “expressions of impatience,
dissatisfaction, annoyance, and even anger” are not sufficient to trigger
[28 U.S.C. § 455(a)]. And where a judge’s opinions are based on “facts
introduced or events occurring in the course of the current proceedings,”
those opinions warrant recusal . . . only if they “display a deep-seated
favoritism or antagonism that would make fair judgment impossible.”
-16-

-- 16 of 25 --

Id. (quoting Liteky v. United States, 510 U.S. 540, 555-56 (1994)) (internal citation
omitted).
Edwards admits “the district court’s expressions of bias in the instant case were
limited and subtle.” This admission undermines any claim of judicial bias. Having
reviewed the record, we conclude the judicial conduct of which Edwards complains
simply did not rise to the level of judicial bias and certainly did not affect the fairness
of Edwards’s trial.
5. Bill of Particulars
Edwards claims the district court erred in denying his motion for a bill of
particulars. Edwards maintains, because the indictment was twenty-seven pages long,
involved twelve defendants and two seventeen year conspiracies, and provided no
information on specific acts by Edwards, he was entitled to a bill of particulars. The
magistrate judge3 denied the motion, and the district court affirmed.
“We review a district court’s denial of a motion for a bill of particulars for an
abuse of discretion.” United States v. Livingstone, 576 F.3d 881, 883 (8th Cir. 2009).
“A bill of particulars serves to inform the defendant of the nature of the charge against
him with sufficient precision to enable him to prepare for trial, to avoid or minimize
the danger of surprise at trial . . . .” United States v. Hernandez, 299 F.3d 984, 989-90
(8th Cir. 2002).
An indictment will ordinarily be held sufficient unless it is so defective
that it cannot be said, by any reasonable construction, to charge the
offense for which the defendant was convicted. To establish reversible
error from the denial of a motion for a bill of particulars, a defendant
3The Honorable Janie S. Mayeron, United States Magistrate Judge for the
District of Minnesota.
-17-

-- 17 of 25 --

must show that he was actually surprised at trial and suffered prejudice
from the denial.
United States v. Fleming, 8 F.3d 1264, 1265 (8th Cir. 1993) (internal citation
omitted). Having reviewed the indictment and the magistrate judge’s order, we
conclude the indictment was sufficient to enable Edwards to prepare for trial and the
magistrate judge did not abuse her discretion in denying Edwards’s motion. Edwards
also fails to show any actual surprise at trial or any prejudice.
6. Motion to Dismiss the Indictment
Edwards claims the district court erred in denying his motion to dismiss the
indictment because the indictment was obtained solely on general hearsay testimony
of a police officer. We disagree.
“[T]he Constitution does not prohibit the use of hearsay testimony in grand jury
proceedings, and even an indictment based exclusively on hearsay may be valid.”
United States v. Hintzman, 806 F.2d 840, 843 (8th Cir. 1986) (internal citations
omitted). “‘The remedy of dismissal for an indictment due to grand jury abuse is
appropriate only upon a showing of actual prejudice to the accused.’” United States
v. Wilson, 565 F.3d 1059, 1070 (8th Cir. 2009) (quoting United States v. Kouba, 822
F.2d 768, 774 (8th Cir. 1987)). “A petit jury’s subsequent guilty verdict not only
means that there was probable cause to believe that the defendant was guilty as
charged, but that he was in fact guilty as charged beyond a reasonable doubt.” Id.
(quoting Kouba, 822 F.2d at 774) (internal marks omitted). Assuming for argument’s
sake there was an error at the grand jury level in obtaining the indictment, any error
was harmless because the district court found there was sufficient evidence to convict
Edwards beyond a reasonable doubt.
-18-

-- 18 of 25 --

7. Witness Statements
Next, Edwards claims the district court abused its discretion in declining to
order the prosecution to disclose the statements of witnesses who were interviewed
by the prosecution and did not initially identify Edwards as being involved in the
conspiracy. Before trial, Edwards claimed he was entitled to disclosure of these
statements pursuant to Brady v. Maryland, 373 U.S. 83 (1963), because the witnesses’
failure to identify Edwards was exculpatory evidence. After an in camera inspection
of the witness statements, the district court ordered disclosure of a portion of one of
the witness statements and found the others did not contain exculpatory evidence.
Edwards suggests this ruling was in error and speculates he might have been entitled
to further disclosures.
“Mere speculation that a government file may contain Brady material is not
sufficient to require a remand for in camera inspection, much less reversal for a new
trial. A due process standard which is satisfied by mere speculation would convert
Brady into a discovery device and impose an undue burden upon the district court.”
United States v. Pou, 953 F.2d 363, 366-67 (8th Cir. 1992) (quoting United States v.
Navarro, 737 F.2d 625, 631 (7th Cir. 1984)). Here the district court discussed the
matter with the parties, reviewed the statements, and ordered disclosure of a portion
of one statement. Edwards’s argument is mere speculation, and, therefore, he fails to
meet his burden to prove “there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different.”
United States v. Bagley, 473 U.S. 667, 682 (1985).
8. Sentence
Finally, Edwards claims the district court imposed an unreasonable sentence.
Edwards acknowledges he received a below Guidelines sentence, but insists the
district court erred in (1) failing to find Edwards was entitled to a role reduction based
on his minimal/minor participation pursuant to U.S.S.G. § 3B1.2, (2) declining to vary
downward based on the sentencing disparity between crack and powder cocaine
-19-

-- 19 of 25 --

offenses, (3) failing to consider the sentencing disparity among Edwards’s co-
defendants under 18 U.S.C. § 3553(a)(6), and (4) failing to give Edwards sufficient
credit for time served.
We review the district court’s interpretation of the Guidelines de novo, and we
review for clear error the district court’s application of the Guidelines to the facts. See
United States v. Rutherford, 599 F.3d 817, 820 (8th Cir. 2010). “We review the
district court’s refusal to grant a minor role adjustment for clear error.” United States
v. Price, 542 F.3d 617, 622 (8th Cir. 2008). The district court found “Edwards’ role
wasn’t substantially less than most of the people” in the conspiracy. Based on the
record in the case, we cannot say the district court clearly erred in denying Edwards
a minor role reduction.
Like Bowie, Edwards claims the district court abused its discretion in refusing
to consider the sentencing disparity between powder and crack cocaine offenses. For
the reasons we stated in our discussion of Bowie’s challenge to his sentence, we
conclude the district court did not abuse its discretion in declining to vary downward
based on Kimbrough.
Edwards next protests the district court failed to give appropriate consideration
to § 3553(a)(6) and created an unwarranted sentencing disparity between Edwards and
other members of the conspiracy. Edwards acknowledges his co-defendants were
given reductions for cooperation, but he urges the disparity was not justified because
the other defendants were more culpable and dangerous. However, Edwards was not
similarly situated to his co-defendants who pled guilty and cooperated with the
government. See United States v. Cain, 487 F.3d 1108, 1115 (8th Cir. 2007) (finding
a defendant was not similarly situated to his co-defendants because they pled guilty
and cooperated with the government). Our review of the record reveals no abuse of
discretion in the district court’s consideration of the § 3553(a) sentencing factors.
-20-

-- 20 of 25 --

Finally, Edwards claims the district court failed to credit the time he had served.
The district court reviewed Edwards’s request and amended the judgment twice,
ultimately reducing Edwards’s sentence of 216 months to 206 months imprisonment.
Edwards objects to the fact the district court did not give him further credit for time
served on supervised release violations, but he provides no authority for such a result
and no evidence concerning the days for which he should have been credited.
Edwards has not shown the district court abused its considerable discretion in
fashioning an appropriate sentence.
III. CONCLUSION
We affirm the judgments of the district court and Bowie’s and Edwards’s
sentences.
BRIGHT, Circuit Judge, concurring in part and dissenting in part.
Although I concur in all other respects, I respectfully dissent from the
majority’s affirmance of these crack cocaine sentences. I believe that the sentencing
record in Bowie’s case insufficiently resolves the important issue of whether the
sentencing court considered Bowie’s request for a variance based on the crack/powder
disparity present in the guidelines. As for Edwards, I believe vacation and remand is
appropriate in light of the recently enacted law that partially remedies the
crack/powder sentencing disparity.
1. Defendant Bowie
The sentencing issue in Bowie’s appeal concerns whether a district court need
respond to a defendant’s principal and potentially meritorious argument for a variance
from the guidelines. The majority concludes it need not. I disagree.
-21-

-- 21 of 25 --

Bowie squarely presented the district court with a request to vary from the crack
cocaine guidelines on the basis of their inequity with the guidelines for powder
cocaine. In a well-written six-page motion, defense counsel briefed the district court
on the follies and injustices of the crack cocaine guidelines. (Def. Mot. for Downward
Variance (Feb. 17, 2009)). The memorandum discussed the court’s discretion to vary
and explained that the Minnesota Supreme Court (the state in which Bowie was
prosecuted) concluded two decades ago that the inequitable crack/powder ratio denied
African Americans equal protection under the law. See State v. Russell, 477 N.W.2d
886, 889 (Minn. 1991).
Defense counsel acknowledged the seriousness of crimes perpetrated by street
gangs, but asked the court for the individualized consideration that § 3553(a) requires.
Bowie again requested a variance at the sentencing hearing and argued for imposition
of the ten-year mandatory minimum rather than a sentence based on the crack cocaine
guidelines. (Sent. Tr. at 16-20 (Mar. 12, 2009)). The government acknowledged that
the sentencing court could, but need not, vary based on the disparity. (Sent. Tr. at 38).
The Supreme Court has recognized that application of the crack cocaine
guidelines presents special problems. As explained in Kimbrough, the original crack
cocaine guidelines “did not take account of empirical data and national experience.”
Kimbrough v. United States, 552 U.S. 85, 109-110 (2007) (quotation omitted). And
the Commission’s 2007 attempt to remedy the disparity provided only a “partial
remedy for the problems generated by the crack/powder disparity . . . .” Id. at 100
(quotation omitted). The Court further explained, “[i]ndeed, the Commission itself
has reported that the crack/powder disparity produces disproportionately harsh
sanctions, i.e., sentences for crack cocaine offenses ‘greater than necessary’ in light
of the purposes in sentencing set forth in § 3553(a).” Id. at 110. This may occur
“even in a mine-run case.” Id.
-22-

-- 22 of 25 --

Although the district court discussed the § 3553(a) factors, it said nothing in
rejecting Bowie’s request for a downward variance from guidelines that the Supreme
Court has described as not exemplifying “the Commission’s exercise of its
characteristic institutional role.” Id. at 109.
The majority states, “[a]lthough it would have been preferable for the district
court to address explicitly Bowie’s motion for a downward variance based on the
sentencing disparity, we find no error in the district court’s failure to do so.” Maj. op.
at 7. To support its holding, the majority relies on United States v. Boyce, 564 F.3d
911, 917 (8th Cir. 2009), where this court stated, “[t]he district court need not respond
to every argument advanced by a defendant,” and where “[b]oth [defense counsel] and
the government commented on the district court’s discretion to consider this disparity,
. . . we may presume the district court was aware of this policy guidance.”
I strongly disagree with such a presumption in light of Bowie’s well-presented
request for a variance from the problematic crack cocaine guidelines and the
importance of the issue. First, says the majority, since the parties argued for a
variance, let’s presume the court was aware of it. Next, the majority suggests that
from silence we may infer the rejection of Bowie’s motion. Finally, the majority
affirms this questionable logic with the easy statement that a court need not respond
to every argument advanced by a defendant.
It should not be this way. In United States v. Roberson, the district court
“ignored” the defendant’s arguments for a lighter sentence based on the crack/powder
disparity. 517 F.3d 990, 995 (8th Cir. 2008). This court vacated and remanded for
resentencing. Id. The Roberson court noted that in a previous case, we remanded
where “we could not determine from the record whether the district court was aware
of its authority to grant a downward departure . . . .” Id. (citing United States v. Lewis,
249 F.3d 793, 795 (8th Cir. 2001)). And in Roberson, the district court’s silence left
“unclear” its reasons for not varying from the crack cocaine guidelines. Id. Likewise
-23-

-- 23 of 25 --

here, we simply do not know whether the busy district court chose not to exercise its
discretion, or, presented with numerous arguments at sentencing, simply neglected to
consider Bowie’s motion.
The Seventh Circuit has explained why district courts need at least “address all
of a defendant’s principal arguments.” United States v. Villegas-Miranda, 579 F.3d
798, 801 (7th Cir. 2009). “We cannot have much confidence in the judge’s considered
attention to the factors in this case, when he passed over in silence the principal
argument made by the defendant even though the argument was not so weak as not to
merit discussion . . . .” Id. at 801-02 (quoting United States v. Cunningham, 429 F.3d
673, 679 (7th Cir. 2005)). “A judge who fails to mention a ground of recognized legal
merit . . . is likely to have committed an error or oversight. Even if the sentencing
court stated convincing reasons for the sentence it imposed . . . silence in response to
a defendant’s principal argument [is not] harmless error because we can never be sure
of what effect it had, or could have had, on the court’s decision.” Id. at 802 (quotation
and parenthesis omitted).
To be sure, our circuit does not require a sentencing court to respond to every
argument advanced by a defendant. See Roberson, 517 F.3d at 995. But neither does
the Seventh Circuit. See Cunningham, 429 F.3d at 678. Bowie’s request for a
variance on the basis of the crack/powder disparity in the guidelines merited
discussion, and we should not affirm the district court’s silence on this important
issue. The presentation by defense called for reasons, not silence.
2. Defendant Edwards
With respect to Edwards, the district court explicitly explained its decision not
to exercise its discretion to vary from the crack cocaine guidelines. Relying on the
crack cocaine guidelines, the district court imposed a 206-month sentence (17 years
2 months), arrived at by starting at the guidelines recommended sentence of 360-
-24-

-- 24 of 25 --

months’ imprisonment (30 years) and giving Edwards various credit for time served.
However, I believe vacation and remand of Edwards’s sentence is appropriate in light
of the recent Congressional enactment signed into law on August 3, 2010, which
reduces the crack/powder disparity. See Fair Sentencing Act of 2010, Pub. L. No.
111-220 (Aug. 3, 2010). The district court here applied the guidelines ratio, but in
light of Congressional actions, the ratio should be reduced, even as low as a 1 to 1
ratio. Given this long overdue and excellent change in the law, Edwards’s sentence
as well as Bowie’s should be vacated and remanded.
______________________________
-25-

-- 25 of 25 --