United States v. Lavonne Roach ( 1998 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-1762
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United States of America, *
*
Appellee, *
*
v. *
*
LaVonne Roach, *
*
Appellant. *
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*
No. 98-1767 * Appeals from the United States
___________ * District Court for the
* District of South Dakota.
United States of America, *
*
Appellee, *
*
v. *
*
Rodney Jackson, *
*
Appellant. *
___________ *
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No. 98-1768 *
___________ *
*
United States of America, *
*
Appellee, *
v. *
*
Kevin Eagle Tail, *
*
Appellant. *
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Submitted: October 19, 1998
Filed: December 22, 1998
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Before HANSEN, LAY, and MURPHY, Circuit Judges.
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MURPHY, Circuit Judge.
LaVonne Roach, Rodney Jackson, and Kevin Eagle Tail appeal their convictions
and sentences for conspiracy to distribute methamphetamine in violation of 21 U.S.C.
§ 846. They seek a new trial or resentencing because of claimed errors including
admission of hearsay evidence, juror misconduct, improper jury instructions, and several
sentencing issues. We affirm.
I.
A one count indictment charged appellants with a conspiracy to distribute
methamphetamine in South Dakota. The government presented evidence at trial
indicating that the conspiracy began no later than the summer of 1994 and continued
until January 1996. Its organization changed over time. In the beginning Mario Osario
controlled a distribution network which moved methamphetamine from California to
Rapid City, South Dakota by way of Salt Lake City. Although Osario occasionally
travelled to Rapid City and participated in transactions there, his associate Sergio
Gutierrez was primarily responsible for the flow of drugs and money between the
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states. At least monthly and sometimes weekly, Gutierrez delivered methamphetamine
to LaVonne Roach, Osario’s contact in Rapid City. Payment for the drugs was made
by Roach to Gutierrez within a few days. Gutierrez made between 10 and 20 trips
during this period, generally carrying between 3 and 10 pounds of methamphetamine
per trip. On the return trips he carried money back to Osario.
Roach distributed the methamphetamine to a number of local users and dealers,
including Rodney Jackson, Kevin Eagle Tail, Phyllis Fairbanks,1 Patrick Peschong, Jeff
Mousel, and others. Osario was often present when Mousel purchased
methamphetamine from Roach. Clay Williamson and Toby Ness became involved in
distributing the methamphetamine through Mousel. The dealers Roach supplied would
turn to one another when she was unavailable or without drugs. The government
presented evidence of transactions between Fairbanks and Eagle Tail, Mousel and
Jackson, and Peschong and Eagle Tail.
The supply chain changed with the death of Osario on April 30, 1995. Law
enforcement officers had arrested him on his way into Rapid City and seized 2.74
pounds of 99% pure methamphetamine. Osario agreed to cooperate by making a
controlled delivery to Jeff Mousel. Instead of completing the transaction, however, he
obtained a gun from Mousel and committed suicide shortly after their meeting. After
Osario’s death, Gutierrez developed another methamphetamine source and agreed to
continue supplying Roach, but he also sold to other dealers in the Rapid City area,
including Jackson and Eagle Tail. Gutierrez was arrested in January 1996.
After a three day trial, the jury found all three defendants guilty of conspiracy.
The defendants filed a motion for new trial based on juror misconduct. The district
court denied that motion and a subsequent motion to reconsider. At sentencing the court
found that the conspiracy involved over 42 kilograms of methamphetamine,
1
Phyllis Fairbanks later married Sergio Gutierrez, but we refer to her throughout
this opinion as Fairbanks.
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producing a base offense level of 38 under U.S. Sentencing Guidelines Manual §
2D1.1(c)[U.S.S.G.]. The court gave Roach a four level enhancement based on her
leadership role in the conspiracy and Eagle Tail a two level enhancement for possession
of a firearm. After taking into account their individual criminal histories, the district
court sentenced Roach to 30 years imprisonment and both Jackson and Eagle Tail to 25
years.
Appellants appeal their convictions, the denial of their post-trial motion for a new
trial, and their sentences. They claim that they are entitled to a new trial because of
hearsay evidence, the court’s refusal to issue a subpoena for certain bank records or to
give a multiple conspiracy instruction, and juror misconduct. Appellants also claim the
court erred in its drug quantity findings and in attributing drugs to them that Osario had
intended to deliver to Mousel, and Rodney Jackson contends that it was wrong to
consider two misdemeanor convictions in determining his criminal history.
II.
A.
Government witnesses testified at trial about many out of court statements
relating to drug distribution.2 There were statements attributed to Roach, Jackson, Eagle
Tail, Mousel, Fairbanks, Peschong, Osario, Gutierrez, Wanda Edwards, Beaver
Pacheco, Steve Cordova, Pat Tracy, and others. Appellants claim that this testimony
was hearsay and that the government failed to establish that the declarants had
participated in a conspiracy with each defendant and that every statement was in
furtherance of a single conspiracy. They also claim the district court did not make
sufficient findings in ruling on these issues. We review the trial court’s evidentiary
decisions for abuse of discretion and will only reverse if an error substantially
2
The government offered this evidence through the testimony of Ness, Agent
Robert Overturf, Deputy Lynn McLane, Peschong, Gutierrez, Terry Cuny, Fairbanks,
and Williamson.
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prejudiced the outcome. See United States v. Goodson, 155 F.3d 963, 969 (8th Cir.
1998); Pittman v. Frazer, 129 F.3d 983, 989 (8th Cir. 1997).
The district court addressed the admissibility of coconspirator statements at
several points during the proceedings, starting with an objection during the testimony
of the first government witness. When the prosecutor asked Toby Ness about statements
by Jeff Mousel, defense counsel objected. The court overruled the objection, saying:
The objection has been made to the statement as hearsay. . . . [A]
statement is not hearsay if made by a co-conspirator of a party
during the course and in furtherance of the conspiracy [citation
omitted]. To satisfy the requirements of [the exception], the
government must demonstrate that, 1. A conspiracy existed, 2. That
the defendants were part of the conspiracy; and 3. That the
declaration was made in the course of and in furtherance of the
conspiracy. These elements must be proven . . . by a preponderance
of the evidence. . . . [S]tatements by a co-conspirator identifying a
fellow conspirator, are considered to be in furtherance of a
conspiracy. . . . Moreover, statements which reveal the existence
and progress of the conspiracy are also in furtherance of a
conspiracy. The evidence so far does establish a conspiracy on the
part of Mousel and Mr. Ness. Statements which were made
identifying others would be in furtherance of the conspiracy . . . .
The objection that testimony is hearsay is denied.
Soon thereafter, Roach’s counsel requested and received a standing hearsay objection
to cover every witness.3
The court again addressed the coconspirator exception during the testimony of
Sergio Gutierrez after he referred to statements by Mario Osario. Jackson’s attorney
3
At the beginning of trial, the court indicated that objections by one defendant
would be considered an objection by all unless a party chose to opt out or add
something to the objection.
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objected, and the district court ruled that the evidence was admissible under
801(d)(2)(E).4
At the close of the government’s case, the defendants moved for a mistrial or
judgment of acquittal and Jackson’s attorney argued that the government had not
established the foundation for coconspirator statements because it had not shown that
the evidence revealed a single conspiracy instead of multiple conspiracies. The court
replied that there was “absolutely overwhelming” evidence of a conspiracy to distribute
methamphetamine in Rapid City and specifically found that Ness, Peschong, Gutierrez,
Fairbanks, Williamson, Mousel, and all three defendants were involved in this
conspiracy.
Later, during the charge conference, the court stated, “[U]nder United States v.
Bell, I have concluded all of what would otherwise be hearsay statements [sic] and
admitted them under 801(d)(2)(E) as statements made in furtherance of the conspiracy,
made by a co-conspirator, whether an indicted or nonindicted co-conspirator.” The
court went on to find that the conspiracy included Mousel, Williamson, Peschong, Ness,
Gutierrez, and Osario. None of the parties requested further findings or made a record
of the specific points of objection they now address on appeal.
An out of court statement by a coconspirator is not hearsay and may be introduced
as an admission by a party opponent. Fed. R. Evid. 801(d)(2)(E). As the district court
indicated, there are several requirements that a proponent must show. They are that a
conspiracy existed, that the declarant and the defendant were both members of the
conspiracy, and that the statement was made during the course of and
4
The transcript reference is to Fed. R. Evid. 801(b)(2)(E). There is no such
section in the rules. Rule 801(d)(2)(E) contains the coconspirator exception. It thus
appears that either there was a typographical error in the transcript or that the court
reporter heard (b) when the judge said (d).
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in furtherance of the conspiracy.5 See United States v. Bell, 573 F.2d 1040, 1043 (8th
Cir. 1978). See also United States v. Jorgensen, 144 F.3d 550, 561-62 (8th Cir. 1998);
United States v. Escobar, 50 F.3d 1414, 1423 (8th Cir. 1994). The district court also
correctly stated that the proponent must prove these requirements by a preponderance
of the evidence. See Bourjaily v. United States, 483 U.S. 171, 175 (1987); Jorgensen,
144 F.3d at 561; United States v. Roulette, 75 F.3d 418, 424 (8th Cir.), cert. denied, 117
S. Ct. 147 (1996).
A court may conditionally admit a challenged statement subject to later proof to
satisfy the coconspirator rule and defer a final ruling on admissibility until after hearing
the relevant evidence. See Bell, 573 F.2d at 1044. See also United States v. Coco, 926
F.2d 759, 761 (8th Cir. 1991); United States v. Williams, 604 F.2d 1102, 1112-13 (8th
Cir. 1979). The content of the proffered coconspirator statements may be considered
in deciding whether a particular conspiracy has been established, see Bourjaily, 483 U.S.
at 181, but such a statement “‘cannot provide the sole evidentiary support for its own
admissibility.’” United States v. Garbett, 867 F.2d 1132, 1134 (8th Cir. 1989) (quoting
Bourjaily, 483 U.S. at 184 (Stevens, J., concurring)).
Explicit rulings on whether the government has ultimately met its burden of
establishing the required foundation for the challenged statements ensure a clear record
for review, but a district court is permitted some flexibility in the manner in which it
makes its rulings. See, e.g., Roulette, 75 F.3d at 424-25. The failure to make ultimate
findings will only be reversible error if it substantially prejudices the rights of the
parties. See Jorgensen, 144 F.3d at 561-62; Roulette, 75 F.3d at 425. The record must
nevertheless reflect careful consideration of the foundational requirements in light of
5
Appellants claim that under the Confrontation Clause there must also be
sufficient indicia of reliability to admit statements of an unavailable coconspirator, but
the Supreme Court has explicitly rejected the need for a separate reliability inquiry.
See Bourjaily v. United States, 483 U.S. 171, 182-183 (1987) (Confrontation Clause
requirements satisfied by coconspirator test).
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the parties’ objections and requests for rulings. See Roulette, 75 F.3d at 424-25 & n.2.
At trial appellants failed to make specific objections of the type they now discuss
on appeal. Instead, they requested and relied upon a broad standing objection covering
all witnesses and statements. A standing objection may be appropriate to cover the same
recurring issue, but it cannot protect a party where there are distinct foundation
questions involved. In such instances, an objecting party must alert the court to the
particular points on which an objection is based.
The district court showed that it understood the required foundation for
conspirator statements. At the time of the first hearsay objection, the court clearly stated
the requirements for admission of coconspirator statements and the burden of proof. It
also made findings then that Ness and Mousel were involved in a conspiracy and that
certain statements were made in futherance of it. It later made findings that the three
defendants and Osario, Gutierrez, Peschong, Fairbanks, and Williamson were involved
in a single conspiracy. It overruled hearsay objections to statements qualifying under
Rule 801(d)(2)(E) and rejected the contention that statements were hearsay because they
were made in connection with multiple conspiracies. No party objected to the court’s
final findings during the charge conference or asked for any amplification. See
Roulette, 75 F.3d at 425 & nn. 2-3. Although it would have been helpful if the district
court had made more detailed findings, our review of the record indicates that it
substantially complied with the requirements of our case law. See Roulette, 75 F.3d at
424.
The convicted parties now claim on appeal that approximately thirty-five hearsay
statements were admitted, but study of the transcript reveals that the great majority were
properly admitted under the coconspirator exception. Twenty-seven of the statements
were made by declarants specifically found by the trial court to be coconspirators and
were made to customers or colleagues for the purpose of furthering the business of the
conspiracy. See Escobar, 50 F.3d at 1423; United States v.
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Jackson, 67 F.3d 1359, 1364 (8th Cir. 1995), cert. denied, 517 U.S. 1192 (1996). The
evidence supports the court’s findings. Although the district court made no specific
findings about three challenged statements of Edwards and Tracy, there is ample
evidence in the record to show that they were members of the conspiracy and that the
statements were made in its furtherance, including the content of the statements
themselves which related to the drug distribution network. See Bourjaily, 483 U.S. at
181. Appellants assert that Terry Cuny repeated statements by unnamed persons, but
it appears his testimony concerned what defendant Jackson had said about dealing to
unnamed customers and was therefore properly admitted under the coconspirator
exception.
Two of the challenged statements were admissible on other grounds. Fairbanks’s
testimony that Beaver Pacheco had asked her to sell drugs involved a verbal act; the
government offered the statement not to prove its truth, but that it had been made. See
Fed. R. Evid. 801(c) advisory committee’s note on 1972 proposed rule (verbal acts
outside hearsay definition); United States v. Robinson, 774 F.2d 261, 273 (8th Cir.
1985). Osario’s post-arrest statement to agent Overturf about delivering
methamphetamine to Mousel was not made in furtherance of the conspiracy, but it could
have been admitted as being against penal interest under Fed. R. Evid. 804(b)(3). This
statement did not directly implicate any of the appellants in any event, and its admission
would have been harmless error at most, given the weight of evidence in the case. See
United States v. White, 11 F.3d 1446, 1451 (8th Cir. 1993).
There appear to be several statements that should not have been admitted without
more foundation. Fairbanks testified that Steve Cordova had told her Gutierrez was
dealing for Osario; this appears to have been hearsay, but it added almost nothing to the
case because Gutierrez himself had admitted that. Fairbanks also testified to two sets
of statements by unnamed individuals, the first regarding purchases from Jackson and
the second regarding a fight involving Osario, Roach, and Jackson. Coconspirator
statements by anonymous declarants may sometimes be admissible, but here there was
no evidence showing that these unnamed persons were actually part of the conspiracy.
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Cf. United States v. Helmel, 769 F.2d 1306, 1313 (8th Cir.1985); United States v.
Wilson, 532 F.2d 641, 645 (8th Cir. 1976). Given the weight of other evidence properly
in the case, admission of these particular statements was no more than harmless error,
however.
B.
Appellant Jackson also claims that the district court committed reversible error
by admitting out of court statements by its witness Hope Red Leaf. After she answered
preliminary questions at trial, she refused to say whether she had received any drugs
from Jackson. She was eventually held in contempt, and the court declared her
unavailable within the meaning of Fed. R. Evid. 804. The government then called
Deputy McClane to testify about statements she had made in her interrogation.
McClane testified that Red Leaf had admitted purchasing methamphetamine from
Jackson in half-gram quantities on at least ten occasions and giving him stolen goods
in exchange for drugs. Red Leaf also said that she had seen Jackson in possession of up
to half an ounce of methamphetamine at a time, that he had told her that he was working
with Osario to bring in large quantities of methamphetamine, and that he had asked his
mother to deposit some of the money he had made.
The government contends that this testimony of McLane was admissible under
804(b)(3) because Red Leaf’s statement was against her penal interest. Although a
statement may fail to qualify as against interest if motivated by the desire to curry favor
with the authorities, see United States v. Riley, 657 F.2d 1377, 1384 (8th Cir. 1981)
(citing Fed. R. Evid. 804(b)(3), Advisory Committee Notes Exception (3)), the
determination of credibility and motivation is generally within the discretion of the trial
court. Red Leaf’s confession that she had traded stolen goods for methamphetamine
could qualify as a statement against interest, but the other statements not implicating her
in illegal activity were not admissible under this exception. See Williamson v. United
States, 512 U.S. 594, 601 (1994). Nevertheless, admission of this evidence was
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harmless, since numerous witnesses testified about Jackson’s involvement with the
conspiracy and his drug sales and Jackson himself had admitted to some.
C.
Appellant Jackson claims the court erred in permitting Deputy McLane to
corroborate testimony by prosecution witness Sergio Gutierrez. At trial Jackson’s
counsel had asked Gutierrez whether he had mentioned Jackson in an interview after his
1995 arrest. Gutierrez said he had. Counsel then asked whether he had also talked
about Jackson after his January 1996 arrest. Gutierrez responded, “The first arrest I talk
[sic] about him.” The government later asked McLane to testify about Gutierrez’s 1996
interview and what he had then said about Jackson. When the defense raised a hearsay
objection, the prosecutor stated that the evidence was offered to rebut an inference of
recent fabrication.
Federal Rule of Evidence 801(d)(1)(B) permits the use of prior consistent
statements to rebut an express or implied charge of recent fabrication. A witness other
than the declarant is permitted to testify to the prior statement. See United States v.
Lanier, 578 F.2d 1246, 1256 (8th Cir. 1978). The prior statement must have been made
before the alleged improper motive to fabricate. See Tome v. United States, 513 U.S.
150, 158 (1995). Evidence that Gutierrez’s statements in his January 1996 interview
was consistent with his trial testimony was relevant for rehabilitation since the desire to
reduce his sentence on his drug charge could have given him a motive to lie at trial. The
district court did not abuse its discretion in admitting McLane’s testimony.
D.
Jackson’s request for a new trial is also based on the denial of his attempt to
subpoena his mother’s bank records to show that she had not deposited money on his
behalf. He sought the subpoena late in the trial after Deputy McLane had related Red
Leaf’s statement that Jackson asked his mother to hold some unspecified portion of his
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drug proceeds. His mother was expected to testify that she had not held money for him
during the relevant period, and Jackson sought the bank records to bolster her testimony.
A district court may, in its discretion, determine that the burden of producing
subpoenaed records greatly outweighs any relevance they may have to the case. See
United States v. Kalter, 5 F.3d 1166, 1169 (8th Cir. 1993); Fed. R. Crim. P. 17(c). In
this case, denial of the subpoena was well within the court’s discretion. It was late in
the trial, the evidence would have been cumulative, and it could not have been
conclusive on the issue.
E.
Appellants claim that they are entitled to a new trial based on the court’s refusal
to give a multiple conspiracy instruction. The defendants contend that Gutierrez
initiated an independent conspiracy when he obtained a supply source separate from
Osario and began selling to new buyers. They also say that the dealers competed
among themselves and thus participated in more than one conspiracy.
If the evidence supports a single conspiracy, the failure to give a multiple
conspiracy instruction is not reversible error. See United States v. Cabbell, 35 F.3d
1255, 1262 (8th Cir. 1994). A multiple conspiracy instruction is not required just
because there are a number of sources and independent dealers if there was a shared
objective to “sell large quantities of drugs.” Cabbell, 35 F.3d at 1262. See also United
States v. Lucht, 18 F.3d 541, 552 (8th Cir. 1994). A single conspiracy may exist even
if the participants and their activities change over time, and even if many participants
are unaware of, or uninvolved in, some of the transactions. See Cabbell, 35 F.3d at
1262; United States v. Adipietro, 983 F.2d 1468, 1475 (8th Cir. 1993). Dealers who
compete with one another may be members of the same conspiracy. See United States
v. Banks, 10 F.3d 1044, 1054 (4th Cir. 1993); United States v. Edwards, 945 F.2d 1387,
1393 (7th Cir. 1991).
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As in United States v. McCarthy, 97 F.3d 1562, 1571 (8th Cir. 1996), cert.
denied, 117 S. Ct. 1011, 1284 (1997), the participants in this conspiracy knew the drugs
they distributed came through a “larger distribution framework already in place,” knew
some of the other members of the conspiracy, and all furthered the shared objective of
distributing drugs received from a common source. They provided one another ongoing
aid in promoting the conspiracy. Cf. United States v. North, 900 F.2d 131, 134 (8th Cir.
1990). Roach facilitated sales to Mousel and encouraged Fairbanks to purchase from
Eagle Tail. Mousel purchased primarily from Roach, but also purchased resale
quantities from Eagle Tail and Jackson. Peschong supplied drugs to, and received drugs
from, both Eagle Tail and Roach. At one point Jackson attempted to re-establish a
business relationship between Mousel and Osario after a falling out.
On the evidence in the record, the jury could have found an ongoing, facilitative
relationship between parties who were aware of the scope of one another’s activities.
As the district court noted during the charge conference, a single overall conspiracy can
be made up of a number of separate transactions and of a number of groups involved in
separate crimes or acts. The court did not err by refusing to give a multiple conspiracy
instruction.
III.
The appellants also appeal the denial of their post-trial motion for a new trial
because of juror misconduct. After deliberating for about four hours, the jury sent the
court a note saying it was unable to agree on a verdict. After consulting counsel, the
court gave an Allen charge and told the jury to continue deliberating. The jurors
returned with their verdicts after another hour of deliberation. They were polled
individually and all affirmed that their verdict for each defendant was guilty.
Some time later, juror Cleo Gayton submitted an affidavit stating that she had
been unwilling to convict the defendants but that the other jurors had pressured her into
changing her vote. She claimed that one juror told her the judge would incarcerate her
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if she failed to do her civic duty and vote to convict. She also claimed there were racial
overtones in the jury room. Gayton was one of two Native American jurors, and for a
time she was the only holdout against convicting the three Native American defendants.
She said other jurors made references to her race and one said “[i]t was ten white people
versus one Indian.” She is a diabetic, and other jurors told her that she could get
something to eat with them after a verdict was returned. The trial court denied the
motion for new trial.
We review the denial of a motion for new trial based on alleged juror misconduct
for abuse of discretion. See Wolff v. Brown, 128 F.3d 682, 686 (8th Cir. 1997).
Federal Rule of Evidence 606(b) codifies the common law rule against use of juror
testimony to impeach a verdict. The rule only allows jurors to testify about “extraneous
prejudicial information” or “outside influence improperly brought to bear upon any
juror.” Fed. R. Evid. 606(b); see also Tanner v. United States, 483 U.S. 107, 121 (1987)
(evidence inadmissible that jurors slept and consumed drugs and alcohol in course of
trial and deliberations); United States v. Thomas, 946 F.2d 73, 75-76 (8th Cir. 1991).
Because Gayton’s allegations all concern either the jury’s deliberations or casual
conversation in the jury room, the district court did not abuse its discretion in denying
the motion for a new trial.
IV.
Appellants also raise sentencing issues. They contend that they are entitled to
resentencing because of erroneous findings on drug quantities, and Jackson claims that
two misdemeanor convictions should not have been counted in his criminal history. We
review a sentencing court’s fact findings for clear error and may affirm on any ground
supported by the record. See United States v. Williams, 109 F.3d 502, 509 (8th Cir.
1997).
The district court determined that the conspiracy involved a total of 42.15
kilograms of methamphetamine, producing a base offense level of 38 under U.S.S.G.
§ 2D1.1(c). It calculated this amount by including the amount of methamphetamine
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seized from Osario when he was stopped near the Rapid City airport and the quantities
it found established by Gutierrez’s testimony about the frequency and volume of his
deliveries to South Dakota.
Appellants argue that the court erred in attributing to each of them all the drugs
transported by Osario and Gutierrez. They also claim that the evidence presented at trial
was not specific enough to allow determination of precise drug quantities because
Gutierrez gave numerical ranges for both the number of deliveries and the quantities in
each delivery. Finally, they claim that the court erred in stating that the substance
Osario carried on his last trip was “ice” methamphetamine.
The sentencing court can consider not only a defendant’s own actions, but also
the related activity of others, including all reasonably foreseeable acts and omissions in
furtherance of jointly undertaken criminal activity. See U.S.S.G. § 1B1.3(a)(1)(B). In
the context of a drug conspiracy, a defendant may be held accountable for all drug
transactions within the scope of the conspiracy. See United States v. Grajales-Montoya,
117 F.3d 356, 365 (8th Cir.), cert. denied, 118 S. Ct. 446, 586 (1997); United States v.
Granados, 962 F.2d 767, 770 (8th Cir. 1992). The trial court is entitled to estimate drug
quantities where the amount actually seized fails to represent the scale of the offense if
the preponderance of the evidence supports the quantities. See U.S.S.G.§ 2D1.1,
comment. (n.12); United States v. Simmons, 964 F.2d 763, 771 (8th Cir. 1992). The
court may make a specific numeric determination of quantity based on imprecise
evidence, see United States v. Ayers, 138 F.3d 360, 363 (8th Cir.), cert. denied, 119 S.
Ct. 219 (1998), so long as the record reflects a basis for the court’s decision. See United
States v. Randolph, 101 F.3d 607, 609 (8th Cir. 1996). The trial court was entitled to
rely upon its familiarity with the evidence in determining drug quantities, whether or not
its findings corresponded with the presentence investigation
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report (PSR) recommendations. See United States v. Mills, 987 F.2d 1311, 1317 (8th
Cir. 1993).6
The district court’s findings of drug quantities were supported by the evidence.
Because Roach, Jackson, Eagle Tail, Mousel, and Osario were members of the same
conspiracy, the court properly attributed the quantity Osario was transporting at his
death to each defendant in the sentencing calculation. Even though the quantity
evidence was not all precise, the court was entitled to rely on it in making its estimation
of the amount of drugs for which each appellant was responsible. Even though it was
not established that Osario’s last package was “ice” methamphetamine, its incorrect
classification would not have affected any of the appellants’ base offense levels.7
Finally, appellant Jackson claims that two of the three state court convictions used
to raise his criminal history to category II were insufficiently documented. A district
court’s factual findings for sentencing must be supported by a preponderance of the
evidence, and we reverse only for clear error. See United States v. Whatley, 133 F.3d
601, 606 (8th Cir.), cert. denied, 118 S. Ct. 2347, 2357 (1998); United States v. Hulshof,
23 F.3d 1470, 1472 (8th Cir. 1994). A sentencing court is not bound by the rules of
evidence and may even consider hearsay in making its determinations. See U.S.S.G. §
6 A1.3(a). Although the local clerk’s office no longer had a record of
6
Although the court’s findings for quantity were the same as those in the PSR,
it declined to adopt other recommendations in the PSR, including an obstruction of
justice enhancement for Jackson and weapon enhancements for Roach and Jackson.
7
The government’s expert witness, Dr. Jack Gaines, testified that the substance
was not ice, but the PSR described it as ice because of its level of purity. Under the
Sentencing Guidelines, only d-methamphetamine of greater than 80% purity qualifies
as ice. See U.S.S.G. § 2D1.1(c), comment. (n.C). The PSR did not discuss whether
the drugs were d-type or l-type methamphetamine. If the quantity found on Osario’s
body was only a methamphetamine mixture instead of ice methamphetamine, the total
drug quantity would have been 30.98 kilograms. This would still be more than the
required threshold of 30 kilograms for level 38. See U.S.S.G. § 2D1.1(c).
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Jackson’s 1988 petty theft conviction, that misdemeanor is contained in the records of
the Rapid City Police Department and the South Dakota Division of Criminal
Investigation. The clerk’s office produced a computer record of his 1990 marijuana
possession conviction but could not locate the supporting file. Absence of records
underlying a conviction is not enough to create a presumption of invalidity. See Parke
v. Raley, 506 U.S. 20, 30 (1992). Jackson does not claim that he was never convicted
of these misdemeanors, and he has given us no reason to believe that the convictions
were unconstitutionally obtained. He has not shown the district court erred in
considering these convictions in computing his criminal history category.
V.
The record contains overwhelming evidence that appellants were involved in a
large scale drug distribution conspiracy that imported over 30 kilograms of
methamphetamine into the Rapid City area. Appellants have not shown reversible error
at their trial or in the course of their sentencing proceedings or that they are entitled to
a new trial or resentencing. The judgments are therefore affirmed.
A true copy.
ATTEST:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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