United States v. Theola Blackmon

1The Honorable James B. Loken stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 31,
2010. He has been succeeded by the Honorable William Jay Riley.
2The Honorable Jeffrey L. Viken, United States District Judge for the District
of South Dakota, sitting by designation.
3The Honorable E. Richard Webber, United States District Judge for the Eastern
District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
__________
No. 08-2065
__________
United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Eastern District of Missouri
*
Damion L. Tripp, * [UNPUBLISHED]
*
Appellant. *
__________
Submitted: December 18, 2009
Filed: April 5, 2010
__________
Before LOKEN, Chief Judge1, BENTON, Circuit Judge, VIKEN, 2 District Judge.
__________
VIKEN, District Judge.
Following his conviction for two counts of possession with intent to distribute
controlled substances, Damion Tripp appeals the district court’s 3 denial of his motions

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to suppress, to strike the jury panel, and for judgment of acquittal. Tripp also
challenges the conduct of the prosecutor during plea negotiations. We affirm.
I.
On July 5, 2006, a confidential informant (“CI”) contacted Corey Mitchell, a
narcotics officer with the Poplar Bluff, Missouri, Police Department, and Jason
Morgan, an officer with the Drug Task Force. The CI informed the officers that Tripp
and a person whom the CI knew as “Frank” were selling drugs from a residence in
Poplar Bluff, Missouri. The CI told the officers that he had purchased narcotics from
Tripp and Frank for the past year and that Tripp and Frank lived at the residence.
Officers Mitchell and Morgan met with the CI that same day. The CI told them
that he could purchase crack cocaine from Frank or Tripp, who is known as “Fat
Man.” The officers decided to conduct a controlled buy at the residence. To that end,
the officers searched the CI to ensure he was not in possession of any narcotics and
provided the CI with $40 in cash and a recording device. The officers drove the CI to
an area near the target location. The officers observed the CI enter the residence and
exit approximately three minutes later.
The CI returned to the officers’ vehicle. The CI turned over a rock of crack
cocaine, which was field tested by Officer Morgan. The rock tested positive for
cocaine base. A malfunction with the recording device rendered the recording blank.
The CI stated he purchased the crack cocaine from Frank, who had retrieved it from
a black case in his girlfriend’s purse. The CI identified Frank’s girlfriend as
“Amanda.”
Officer Mitchell prepared an affidavit detailing the information provided by the
CI and the events surrounding the controlled buy. Based on the affidavit, a state
circuit court judge issued a warrant to search the residence and to seize any controlled
substances, imitation controlled substances, drug paraphernalia, records and/or monies

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related to drug sales, and mail. Officers Mitchell and Morgan, along with other police
officers, executed the search warrant on July 13, 2006. As the officers approached the
residence, Tripp walked out onto the porch, saw the officers walking toward him, ran
back inside the residence, and shut the door. The officers pursued Tripp into the
residence and found him in the bathroom attempting to flush down the toilet several
bags of what was later identified as marijuana. Two bags of marijuana were floating
in the toilet bowl. Eight other bags of marijuana were recovered from the plumbing
of the toilet. One gallon size bag of marijuana was found on the floor of a bedroom
where Tripp kept his music equipment.
The police seized other drugs, including what was later identified as cocaine
base, as well as a variety of drug paraphernalia located in the house. The cocaine base
was in two bags inside a size 12 Nike Shox shoe found on the floor of the bedroom
that contained Tripp’s music equipment. Also inside the Nike shoe was a small bag
of marijuana. From Tripp’s person, the police seized $875 in cash and digital scales.
Tripp was arrested and booked into the county jail. At that time, he was wearing a
pair of size 12 Nike Shox shoes.
On August 18, 2006, a federal grand jury indicted Tripp on one count of
possession with intent to distribute a substance containing fifty grams or more of
cocaine base. On March 15, 2007, the government filed a criminal information giving
notice that Tripp was subject to an enhanced sentence due to a prior felony conviction
for a drug offense. On June 21, 2007, the government filed a superseding indictment
charging Tripp with one count of possession with intent to distribute a substance
containing fifty grams or more of a cocaine base (count 1) and one count of possession
with intent to distribute a substance containing a detectable amount of marijuana
(count 2). The government also filed an amended criminal information. The
sentencing enhancement exposed Tripp to a mandatory minimum of 20 years
imprisonment on count one and a term of imprisonment not to exceed 10 years on
count two of the indictment.

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Tripp filed a motion to suppress the physical evidence seized from the residence
and his person and all statements made to law enforcement. Tripp argued that the
state circuit court lacked sufficient probable cause to issue the search warrant and that
Officer Mitchell’s affidavit contained false or misleading information. The magistrate
judge recommended denying Tripp’s suppression motion, finding that the affidavit did
not contain false or misleading information and that the search warrant was based on
probable cause. The district court adopted the magistrate judge’s report and
recommendation over Tripp’s objections and denied Tripp’s suppression motion.
Trial commenced on January 25, 2008. Prior to voir dire, the district court
granted Tripp a continuing objection to preserve the issues raised in his suppression
motion. During voir dire, a juror inquired as to why there were no African-Americans
present on the venire panel. The district court replied that the voter registration
records and, in some counties, driver’s license registrations were the basis for the jury
pool and that considerable effort was made to enhance diversity in the jury selection
process. The juror then asked whether Tripp could obtain a new panel based on the
fact that no African-Americans were present. The district court declined to answer
this question. During voir dire, Tripp moved to strike the all-white jury panel. The
district court denied Tripp’s motion.
Tripp orally moved for a judgment of acquittal at the close of the government’s
case-in-chief and again at the close of all the evidence. The district court denied the
motions. Following a two-day trial, the jury convicted Tripp on both counts of the
superseding indictment. Tripp filed motions for judgment of acquittal and for a new
trial. The district court denied the motions. On April 28, 2008, the district court
sentenced Tripp to a term of imprisonment of 240 months on count one and 108
months on count two, with the terms to run concurrently, followed by an aggregate
term of 10 years supervised release. The sentence included application of the
sentencing enhancement based on Tripp’s prior felony drug conviction.

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4Following the return of the jury verdict, Tripp filed a motion for new trial that
again challenged the racial composition of the jury and the inclusion of evidence
obtained during the execution of the search warrant. The district court denied the
motion. Tripp does not specifically claim on appeal that the district court erred in
denying his motion for new trial. Thus, the court will consider Tripp’s challenges
within the context of his motions to suppress and to strike the jury panel.
5Tripp’s counsel on appeal does not join in Tripp’s challenge to the prosecutor’s
conduct.
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Tripp timely appealed his conviction, alleging the following errors: (1) the
district court erred in denying his suppression motion because the search warrant
lacked probable cause; 4 (2) the district court erred in denying his motion for judgment
of acquittal because the evidence was insufficient to convict him on both counts; (3)
the district erred in denying his motion to strike the all-white jury panel, thereby
violating his Sixth Amendment right to a fair trial; and (4) the government violated
his Fifth Amendment right to due process by informing him that if he did not plead
guilty, the government would seek a sentencing enhancement based on a prior felony
drug conviction.5
II.
Tripp claims the district court erred in denying his suppression motion
because the search warrant was not based on probable cause. Tripp further alleges the
affidavit submitted in support of the search warrant application contained false or
misleading statements and impermissible hearsay. When reviewing a motion to
suppress, we review the district court’s findings of fact for clear error and its
conclusions of law de novo. United States v. Montes-Medina, 570 F.3d 1052, 1059
(8th Cir. 2009) (citing United States v. Hart, 544 F.3d 911, 913-14 (8th Cir. 2008),
cert. denied, __U.S.__, 129 S. Ct. 2069 (2009)). We will affirm the denial of a
suppression motion “ ‘unless we find that the decision is unsupported by the evidence,

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based on an erroneous view of the law, or the Court is left with a firm conviction that
a mistake has been made.’ ” United States v. Pennington, 287 F.3d 739, 742 (8th Cir.
2002) (quoting United States v. Madrid, 152 F.3d 1034, 1037 (8th Cir. 1998)).
The Fourth Amendment requires that search warrants be based on probable
cause. Montes-Medina, 570 F.3d at 1059 (citing Hart, 544 F.3d at 914). Probable
cause exists if the search warrant application and affidavit “ ‘describe circumstances
showing a fair probability that contraband or evidence of a crime will be found in a
particular place, and our duty on appeal is simply to ensure that the magistrate had a
substantial basis for concluding that probable cause existed.” United States v. Keele,
589 F.3d 940, 943 (8th Cir. 2009) (quoting Montes-Medina, 570 F.3d at 1059)); see
also Illinois v. Gates, 462 U.S. 213, 238-39 (1983) (“The task of the issuing
magistrate is simply to make a practical, common-sense decision whether, given all
the circumstances set forth in the affidavit before him, including the ‘veracity’ and
‘basis of knowledge’ of persons supplying hearsay information, there is a fair
probability that contraband or evidence of a crime will be found in a particular place.
And the duty of a reviewing court is simply to ensure that the magistrate had a
‘substantial basis for . . . conclud[ing]’ that probable cause existed.”) (additional
citation omitted). “Probable cause requires only a showing of fair probability, not
hard certainties.” United States v. Hudspeth, 525 F.3d 667, 676 (8th Cir. 2008) (citing
Gates, 462 U.S. at 231).
When the issuing court relies solely on an affidavit to establish probable cause,
only the information “ ‘found within the four corners of the affidavit may be
considered.’ ” United States v. Wells, 347 F.3d 280, 286 (8th Cir. 2003) (quoting
United States v. Gladney, 48 F.3d 309, 3012 (8th Cir. 1995)). The affidavit must
provide the issuing court with a substantial basis to support a finding of probable
cause; wholly conclusory statements that the affiant “has cause to suspect and does
believe that” illegal activity is occurring “will not do.” Gates, 462 U.S. at 239
(internal quotation marks and additional citation omitted). The affidavit for a search

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warrant should be examined using a common-sense, non-technical approach.
Hudspeth, 525 F.3d at 674 (citing United States v. Grant, 490 F.3d 627, 631 (8th Cir.
2007)). Courts look to the totality of the circumstances to determine whether
information provided by a confidential informant is reliable so as to support a finding
of probable cause. Gates, 462 U.S. at 233-34. A reviewing court should afford great
deference to the probable cause determination of the issuing judge. Hudspeth, 525
F.3d at 674 (citing Grant, 490 F.3d at 632).
We conclude that Officer Mitchell’s affidavit was sufficient to establish
probable cause for the issuance of the search warrant. An affidavit based on hearsay
“is not to be deemed insufficient on that score, so long as a substantial basis for
crediting the hearsay is presented.” Gates, 462 U.S. at 241-42 (internal quotation
marks and additional citation omitted). The CI’s information was based on his
firsthand knowledge. He informed the officers that he had been purchasing crack
cocaine from “Fat Man” and Frank for the past year and described the house in
question with particularity. These facts afford his tip greater weight. See id. at 234
(noting that, even if an informant’s motives are in question, his “explicit and detailed
description of alleged wrongdoing, along with a statement that the event was observed
first-hand, entitles his tip to greater weight . . .”). The CI’s tip was against his penal
interest as it implicated him in criminal activity, a fact which bolsters his credibility.
See Pennington, 287 F.3d at 742-43 (finding of probable cause was supported by the
fact that the CI implicated himself in criminal activity by cooperating with law
enforcement). Most important, Officers Morgan and Mitchell independently
corroborated the CI’s information by arranging and monitoring a controlled buy from
Tripp’s residence. See id. at 742 (finding that officers reliably corroborated the
CI’s information regarding the manufacture and distribution of narcotics at
defendant’s farm by arranging and monitoring a controlled buy at the farm).

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6Franks v. Delaware, 438 U.S. 154 (1978).
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Tripp concedes he is not entitled to a Franks 6 hearing, yet still asserts that the
affidavit contained false and misleading statements. Tripp claims that, at his
preliminary hearing, Officers Mitchell and Morgan falsely testified that Tripp was
present at the house when the controlled buy occurred. Tripp alleges the officers
failed to inform him they had conducted a controlled buy and obtained a search
warrant. Tripp argues the officers should have recorded the controlled buy or should
have arrested Frank or Frank’s girlfriend to verify the CI’s information. Tripp claims
the officers failed to verify the existence of the purse from which Frank obtained the
rock cocaine. Tripp alleges the officers made no attempt to verify the CI’s statement
that he had purchased drugs from Tripp and Frank over a one year period. Finally,
Tripp challenges the fact that the CI never testified in this case, making the CI’s
statements hearsay. We find these allegations to be without merit. The district court
did not err in denying Tripp’s suppression motion.
III.
Tripp claims the district court erred in denying his motions for judgment of
acquittal. Tripp challenges the sufficiency of the evidence to sustain his convictions
on both counts of the superseding indictment. With respect to count one, Tripp
argues the prosecutor failed to prove beyond a reasonable doubt that he was in
constructive possession of the cocaine base. With respect to count two, Tripp argues
the evidence should have been suppressed. We review a challenge to the sufficiency
of the evidence de novo, “consider[ing] the evidence in the light most favorable to the
jury’s verdict and draw[ing] all reasonable inferences in the Government’s favor.”
United States v. Coleman, 584 F.3d 1121, 1125 (8th Cir. 2009) (citing United States
v. Ironi, 525 F.3d 683, 689-90 (8th Cir. 2008); and United States v. McAtee, 481 F.3d
1099, 1104 (8th Cir. 2007)). We do not assess the credibility of witnesses or re-weigh
the evidence, and we will reverse only if no reasonable jury could have found the
defendant guilty beyond a reasonable doubt. Id. (citing United States v. Santana, 524

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F.3d 851, 853 (8th Cir. 2008)); see also United States v. Castro-Gaxiola, 479 F.3d
579, 581 (8th Cir. 2007) (“The verdict is upheld if any interpretation of the evidence
could lead a reasonable jury to find a defendant guilty beyond a reasonable doubt.”)
(citing United States v. Armstrong, 253 F.3d 335, 336 (8th Cir. 2001)). Because the
standard of review is strict, we will not “lightly overturn” a jury’s verdict. Castro-
Gaxiola, 479 F.3d at 581 (citing United States v. Cruz, 285 F.3d 692, 697 (8th Cir.
2002)).
Tripp cannot satisfy this high burden. Because we hold the district court did not
err in denying Tripp’s suppression motion, Tripp’s challenge to the sufficiency of the
evidence with respect to count two must fail. Further, we find the evidence is
sufficient to support Tripp’s conviction regarding count one. Officers seized the
cocaine base from two bags located inside a size 12 Nike Shox shoe, the same size and
style worn by Tripp. The shoe containing drugs was on the floor of a bedroom in
which Tripp stored his music equipment. Tripp made incriminating statements to law
enforcement regarding the cocaine base. From Tripp’s person, police seized a digital
scale with visible white residue. As part of his defense, Tripp theorized the cocaine
base could have belonged to Frank or Frank’s girlfriend. The jury rejected this
argument in light of the substantial evidence establishing constructive possession. We
will not disturb the jury’s verdict. The district court did not err in denying Tripp’s
motions for judgment of acquittal.

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6Tripp does not allege a violation of the Jury Selection and Service Act, 28
U.S.C. §§ 1861-1869. Even if he had, he would be barred from pursuing such a claim
because he failed to object to the venire panel before voir dire began. See United
States v. Jones, 687 F.2d 1265, 1269 (8th Cir. 1982) (citing 28 U.S.C. § 1867(e);
United States v. Geelan, 509 F.2d 737, 740 (8th Cir. 1974)). Tripp is not barred from
raising a constitutional challenge to the jury selection process. See id. (citing 28
U.S.C. § 1867(e)).
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IV.
Tripp claims the district court erred in denying his motion to strike the all-white
jury venire and that this error violated his constitutional right to a fair trial.7 “ ‘The
Constitution does not guarantee a defendant a proportionate number of his racial
group on the jury panel or the jury which tries him; it merely prohibits deliberate
exclusion of an identifiable racial group from the juror selection process.’ ” United
States v. Jones, 687 F.2d 1265, 1269 (8th Cir. 1982) (quoting United States v.
Turcotte, 558 F.2d 893, 895 (8th Cir. 1977)). The Supreme Court has held that “
‘petit juries must be drawn from a source fairly representative of the
community’ ” in that “ ‘jury wheels, pools of names, panels, or venires from which
juries are drawn must not systematically exclude distinctive groups in the community
and thereby fail to be reasonably representative thereof.’ ” Duren v. Missouri, 439
U.S. 357, 363-64 (1979) (quoting Taylor v. Louisiana, 419 U.S. 522, 538 (1975)).
The Duren Court set forth the standard by which a defendant may constitutionally
challenge the jury selection process:
In order to establish a prima facie violation of the fair-cross-section
requirement, the defendant must show (1) that the group alleged to be
excluded is a “distinctive” group in the community; (2) that the
representation of this group in venires from which juries are selected is
not fair and reasonable in relation to the number of such persons in the
community; and (3) that this underrepresentation is due to systematic
exclusion of the group in the jury-selection process.
Id. at 364.

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Tripp concedes he “does not know” if the underrepresentation of African-
Americans in the venire panel was due to a systematic exclusion of the group or “just
by mere coincidence.” Tripp argues the standard is “far too high and that no litigant
is going to be able to show a systematic exclusion of a group or race.” Tripp claims
it is impractical to expect a litigant to research the jury pool and urges this court to
“reassess its current state of the law.”
Tripp’s challenge to the composition of the jury venire is without merit. Even
assuming the first two requirements of the Duren test have been met, Tripp has
presented no evidence to satisfy the third requirement. Absent such evidence, Tripp
cannot make a showing of a constitutional violation. See Jones, 687 F.2d at 1269-70.
Further, this court lacks the authority or discretion to alter binding Supreme Court
precedent. The district court did not err in denying Tripp’s motion to strike the jury
panel.
V.
Finally, Tripp alleges the government violated his Fifth Amendment right to
due process by engaging in vindictive prosecution. Tripp says the prosecutor
informed defense counsel that he would not seek a sentencing enhancement if Tripp
pled guilty. Tripp argues the prosecutor punished him for exercising his right to a jury
trial by seeking a sentencing enhancement.
A defendant cannot be punished for exercising a protected statutory or
constitutional right. United States v. Goodwin, 457 U.S. 368, 372 (1982). “To punish
a person because he has done what the law plainly allows him to do is a due process
violation ‘of the most basic sort.’ ” Id. (citing Bordenkircher v. Hayes, 434 U.S. 357,
363 (1978)). A defendant can establish prosecutorial vindictiveness through objective
evidence that the prosecutor’s actions were intended to punish the defendant for
exercising a legal right. United States v. Campbell, 410 F.3d 456, 461 (8th Cir. 2005)
(citing United States v. Rodgers, 18 F.3d 1425, 1429 (8th Cir. 1994)). Alternatively,

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a defendant is entitled to a presumption of vindictiveness “where there exists a
reasonable likelihood of vindictiveness, which may arise when prosecutors increase
the number or severity of charges.” Id. (citing Rodgers, 18 F.3d at 1429-30). The
presumption of vindictiveness applies only in rare circumstances. Id. at 462 (citing
United States v. Kriens, 270 F.3d 597, 602 (8th Cir. 2001)). The burden is on the
defendant to show that the prosecution took action to punish the defendant for
exercising a legal right. Id. at 461 (citing United States v. Leathers, 354 F.3d 955, 961
(8th Cir. 2004)).
“[I]n the ‘give-and-take’ of plea bargaining, there is no such element of
punishment or retaliation so long as the accused is free to accept or reject the
prosecution’s offer.” Bordenkircher, 434 U.S. at 363. The Supreme Court has
recognized plea negotiation as a legitimate process:
While confronting a defendant with the risk of more severe punishment
clearly may have a “discouraging effect on the defendant’s assertion of
his trial rights, the imposition of these difficult choices [is] an
inevitable”-and permissible-“attribute of any legitimate system which
tolerates and encourages the negotiation of pleas.” It follows that, by
tolerating and encouraging the negotiation of pleas, this Court has
necessarily accepted as constitutionally legitimate the simple reality that
the prosecutor’s interest at the bargaining table is to persuade the
defendant to forgo his right to plead not guilty.
It is not disputed here that [the defendant] was properly chargeable under
the recidivist statute, since he had in fact been convicted of two previous
felonies. In our system, so long as the prosecutor has probable cause to
believe that the accused committed an offense defined by statute, the
decision whether or not to prosecute, and what charge to file or bring
before a grand jury, generally rests entirely in his discretion. Within the
limits set by the legislature's constitutionally valid definition of
chargeable offenses, “the conscious exercise of some selectivity in
enforcement is not in itself a federal constitutional violation” so long as
“the selection was [not] deliberately based upon an unjustifiable standard
such as race, religion, or other arbitrary classification.” To hold that the

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prosecutor’s desire to induce a guilty plea is an “unjustifiable standard,”
which, like race or religion, may play no part in his charging decision,
would contradict the very premises that underlie the concept of plea
bargaining itself. Moreover, a rigid constitutional rule that would
prohibit a prosecutor from acting forthrightly in his dealings with the
defense could only invite unhealthy subterfuge that would drive the
practice of plea bargaining back into the shadows from which it has so
recently emerged.
Id. at 364-65 (internal citations omitted).
Here, as in Bordenkircher, the prosecution sought to persuade Tripp to accept
a plea agreement by offering lenient treatment. In Bordenkircher, the prosecution
offered to refrain from bringing additional charges under the state career offender
statute in exchange for the defendant’s guilty plea. The additional charges were
wholly warranted by the evidence. Here, the prosecution offered to refrain from
seeking a sentencing enhancement if Tripp entered a guilty plea. Again, the evidence
fully supports the enhancement, and Tripp does not allege the enhancement was not
objectively reasonable. See Campbell, 410 F.3d at 462 (noting there can be no
prosecutorial vindictiveness if the prosecutor’s decision was based on some objective
reason other than to punish the defendant for exercising his legal rights). In both
cases, plea negotiations were unsuccessful, and the defendants faced higher penalties
after trial. In neither case was a presumption of prosecutorial vindictiveness
warranted. See Goodwin, 457 U.S. at 382-83 (“[T]he mere fact that a defendant
refuses to plead guilty and forces the government to prove its case is insufficient to
warrant a presumption that subsequent changes in the charging decision are
unjustified.”). We find the prosecution did not engage in prosecutorial vindictiveness.
The course of conduct engaged in by the prosecution was no more than openly
presenting Tripp with the choice of forgoing trial or facing a sentencing enhancement
to which he was plainly subject. See Bordenkircher, 434 U.S. at 365. This commonly-
used plea bargaining technique did not violate Tripp’s right to due process.

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VI.
Accordingly, we affirm Tripp’s conviction.
______________________________

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