Appeals from the United States District Court For the Northern District of Mississippi. D.C. DOCKET NUMBER CR-4:92CR026-D-2. JUDGE Glen H. Davidson
Before King, Higginbotham, DeMOSS, Circuit Judges.
Donald Hooker (Hooker) and Donald Ray Reed (Reed) were charged in a six-count indictment with conspiring to distribute crack cocaine in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(C), and 846 (count 1), aiding and abetting each other in distributing crack cocaine in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(C) (count 2), carrying and using firearms in the conspiracy in violation of 18 U.S.C. §§ 2 and 924(c) (count 3), and using firearms while kicking and assaulting a state narcotics officer who was acting as a federal officer in violation of 18 U.S.C. §§ 111 and 1114 (count 4). Reed alone was charged with being a convicted felon in possession of firearms in violation of 18 U.S.C. §§ 922(g)(1) and 924 (count 5), and knowingly possessing a firearm with removed or altered serial numbers in violation of 18 U.S.C. §§ 922(k) and 924 (count 6). Both Hooker and Reed were convicted on all of the counts on which they were charged, and they now appeal those convictions.
The defendants contend the district court erred (1) in failing to instruct the jury with regard to a knowledge requirement for Count 6, (2) in failing to dismiss their conviction on Count 4 because there was insufficient proof to establish that a state officer was acting as a federal officer, (3) by improperly applying the Federal Sentencing Guidelines with regard to Count 4, and (4) by allowing the government to introduce evidence of their prior drug related activity when that evidence violated Federal Rules of Evidence 403 and 404(b). We reverse Reed's conviction on Count 6 and affirm all other convictions for both Hooker and Reed.
In January 1992, three federal agencies, the Federal Drug Enforcement Administration (DEA), the Federal Bureau of Alcohol, Tobacco, and Firearms (ATF), and the Federal Bureau of Investigations (FBI) began an investigation of Reed, which involved allegations of drug trafficking and firearms violations. The DEA was the lead agency and coordinated the investigation. However, because the DEA had only three officers at its Oxford, Mississippi office, it enlisted the help of the Mississippi Bureau of Narcotics (MBN) and the North Central Mississippi Drug Task Force (Task Force). The agents also obtained the assistance of Kenny Pepper (Pepper), who was an informant who claimed to have previously purchased drugs from Reed and offered to obtain further evidence for the investigation.
On January 29, 1992, nine state and local agents, supervised by DEA agent Arliss Swindoll, met with Pepper and arranged for him to purchase drugs from Reed. The plan was for MBN officer Elbert Craig (Craig) to accompany Pepper and pose as his "Uncle Al." The agents fitted Pepper with a hidden tape recorder and transmitter so that they could later use the taped conversations for evidence.
Around 8:00 p.m. on January 29, Craig and Pepper went to Reed's house in Belzoni, Mississippi. The house was surrounded by a chain link fence containing pit bull dogs and it had security doors at all three entrances. Craig stayed in the car while Pepper approached the house and spoke to Reed. Pepper explained that one of his cousins had referred him to Reed as someone from whom he could purchase drugs. Reed asked Pepper what he wanted. Pepper said a gram, to which Hooker, who was standing nearby, replied "a gram of cain?" Reed said "I really don't deal," and walked outside and down the street where he spoke with someone in a car.
In the meantime, Pepper and Hooker continued talking. When Reed returned to the house, he asked Pepper if Hooker got him the dope. Pepper said no, and Reed then talked privately with Hooker. Shortly thereafter, Hooker asked Pepper how much he wanted. Pepper replied, "a sixteenth to start off." Hooker told Pepper a gram would cost "one hundred forty" and that a sixteenth would cost "one hundred sixty." Hooker and Reed then stepped aside while Pepper observed Hooker remove his baseball cap and put it back on. Hooker then asked Pepper to walk down the street with him. They walked about a half a block when Hooker removed his cap, took a rock of cocaine out of the band of the cap, and handed it to Pepper. Hooker then motioned for Pepper to put the money in the cap, which he did, and Hooker put the cap back on his head. Pepper told Hooker he would be back the next day for another purchase.
On January 30, 1992, the agents, along with a second DEA agent, met to prepare for a second drug buy from Hooker and Reed. The agents also prepared to execute a search warrant of Reed's house, which they were going to serve after the second buy. Craig and Pepper arrived at Reed's house around noon, whereupon Pepper entered the house and asked Reed for drugs. Reed told him to talk to Hooker, who had agreed to sell him the drugs. Hooker told Pepper he was first going to search him for "wires." Pepper refused and returned to the car and he and Craig drove away.
While riding in the car, Craig told Pepper to remove the recorder and transmitter, which he did, and go back in the house. Craig then drove back to the house. While Craig stayed in the car, Pepper approached the house. Unbeknownst to Craig and Pepper, Hooker and Reed had followed them as they drove around the block. Hooker and Reed arrived at the house just after Pepper and Craig. Hooker approached Pepper from behind and told him to go in the house. Once inside the house, Reed and Hooker asked Pepper if he was "the police." Pepper denied that he was, but Reed left the room and came back holding two guns and ordered Pepper in the bathroom. While Reed held a gun to Pepper's head, Hooker searched him, but found nothing. Reed then told Dalton Handy*fn1 to bring in "Uncle Al,"*fn2 which he did.
As Craig prepared to enter the house, he clipped onto his belt a transmitter, which was made to look like a pager, and radioed to the surveillance team that he was going into the house. When Craig stepped inside the house, he saw Reed with a gun in his belt and one arm behind his back. Reed pulled the gun from his belt and another from behind his back and told Craig and Pepper that they were not leaving. Reed put a cocked, loaded gun to Craig's forehead and ordered him into the bathroom. In the bathroom, Reed made Craig get on his knees and he put a gun to the back of his head. Reed kicked Craig twice in the ribs with his boot while telling him "if you're the . . . police, were gonna kill you."
Hooker went and searched the car and returned with Craig's walkie-talkie, tape recorder, and pistol. Hooker ordered Craig to stand up so he could be searched. Hooker patted Craig down and found Craig's other pistol in an ankle holster. Hooker asked Craig where he got the gun. When he replied on the streets, Hooker said "you're a damn liar . . . . This is a police gun." Hooker ordered Craig back on his knees and kicked him twice more saying "let me kill him. Let me kill the . . . police." Reed told Hooker "not here at my house. Lets take him to the woods." While Hooker pointed a pistol at Craig's skull, Hooker and Reed argued whether they should kill Craig in the woods or at the house.
Meanwhile, unbeknownst to Hooker and Reed, the surveillance team had heard the conversation and were racing to the house. While still on his knees, Craig heard someone rattle the doorknob on the side door. He looked over and saw one of the surveillance team agents looking through a small window by the door. Reed, apparently having heard the agents, suddenly changed his demeanor saying "I'm going to call the Sheriff, . . . [and] tell him I've got two men over here at my house with guns." Immediately thereafter, the agents burst into the house and arrested Hooker and Reed.
Later that day, the agents brought a search warrant and searched the house. Their search revealed three sets of scales, which contained cocaine residue, cocaine residue on the kitchen counter and the microwave, inositol and baking soda, which are used to cook powder cocaine into "crack," holsters and ammunition for firearms, a police scanner, a cellular telephone, sandwich bags with the corners cut off, which contained cocaine residue, $1,333 in cash, an identification card with Reed's picture but bearing the name of Luther Howard, a photograph of Reed sitting at a table with large sums of money and a gun in each hand, and a receipt made ...