United States v. Cory Kamerud ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-2232
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United States of America, *
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Appellee, *
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v. *
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Cory Baker Kamerud, *
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Appellant. *
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Appeals from the United States
No. 02-2427 District Court for the
___________ Northern District of Iowa.
United States of America, *
*
Appellee, *
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v. *
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Brett Christian Kamerud, *
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Appellant. *
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Submitted: February 12, 2003
Filed: April 23, 2003
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Before BOWMAN, MORRIS SHEPPARD ARNOLD, and BYE, Circuit Judges.
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BYE, Circuit Judge.
A jury found Cory and Brett Kamerud guilty of conspiring to distribute and
possessing with intent to distribute 500 grams or more of a mixture or substance
containing a detectable amount of methamphetamine in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(B), and 846. The jury also found one of the objects of the
conspiracy was to possess the methamphetamine with the intent to distribute it to one
or more persons under twenty-one years of age in violation of 21 U.S.C. § 859. The
district court1 sentenced each to 240 months imprisonment, to be followed by ten
years of supervised release. Both Cory and Brett appeal, challenging the sufficiency
of the evidence and raising several other pre-trial, trial, and sentencing issues. We
affirm the judgments of conviction and sentences in all respects.
I
We review the evidence in the light most favorable to the verdict and accept
all reasonable inferences as established. United States v. Jimenez-Villasenor, 270
F.3d 554, 558 (8th Cir. 2001). In June and August 2000, the Kameruds and two other
individuals, Russell Brick and Stacey Bitz, trafficked methamphetamine from Sioux
City, Iowa, to Aberdeen, South Dakota. On about twelve occasions, the group got
methamphetamine in Sioux City from a supplier named Kurt Undine, then traveled
back to Aberdeen to redistribute some of the methamphetamine and consume some
of it. Although the Kameruds did not personally make the trip each time, they always
contributed some of the money for each of the purchases Brick ultimately made from
1
The Honorable Ronald E. Longstaff, United States District Judge for the
Northern District of Iowa, presiding at trial. The Honorable Mark W. Bennett, United
States District Judge for the Northern District of Iowa, presiding at sentencing.
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Undine. In all, the group purchased between 680 and 850 grams of
methamphetamine, or between 2 and 2½ ounces on each trip. When the
methamphetamine reached Aberdeen, the Kameruds would weigh out portions of
their purchases for resale before consuming some of the drugs themselves.
II
Citing United States v. Jensen, 141 F.3d 830 (8th Cir. 1998), and United States
v. West, 15 F.3d 119 (8th Cir. 1994), the Kameruds contend the evidence was
insufficient to show they conspired to distribute methamphetamine. They argue the
evidence merely showed they were drug users who had a buyer/seller relationship
with Russell Brick, and their resale of drugs was not pursuant to any agreement with
Brick but merely a means to finance their own personal use. We disagree.
The government was not required to show an express agreement between the
Kameruds and their seller regarding the subsequent redistribution of the drug —
proof of a tacit understanding was sufficient. E.g., United States v. Crossland, 301
F.3d 907, 913 (8th Cir. 2002). Unlike Jensen, where the alleged conspirator/seller did
not know of or agree with his buyer's plan to resell a personal use amount of
amphetamine to a third person, 141 F.3d at 833, Brick personally saw the Kameruds
weighing out grams for resale before consuming any of the drugs themselves. Unlike
West, where the evidence established only that an alleged conspirator/seller made
sales of small quantities intended for the personal use of two buyers who did not
know one another, 15 F.3d at 120-21, Brick knew the Kameruds were redistributing
the drugs, and frequently observed customers coming and going from the Kameruds'
residence.
The Kameruds also claim the evidence was insufficient to prove the conspiracy
involved 500 grams or more of methamphetamine, arguing the amount they
consumed personally should not be included in the total. The Kameruds were
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charged with conspiracy to distribute methamphetamine, however, not possession
with intent to distribute, so the amount consumed for personal use should be included
in the total. Compare Jimenez-Villasenor, 270 F.3d at 562 (holding that drugs
acquired for personal use should be included in determining drug quantity when
charge is for conspiracy) with United States v. Fraser, 243 F.3d 473, 475-76 (8th Cir.
2001) (holding drugs acquired for personal use are not relevant conduct when charge
is for possession with intent to distribute).
Brett further contends Apprendi v. New Jersey, 530 U.S. 466 (2000), requires
us to distinguish between a district court's inclusion of personal use amounts as
relevant conduct for sentencing purposes, and the inclusion of personal use amounts
in the proof submitted to a jury when asking them to find a conspiracy to distribute
a specific amount of a controlled substance. We need not address that argument in
this case, however, because there was no Apprendi error. The Kameruds both
received 240 month sentences, which are within the prescribed statutory maximum
even if the jury had not been asked to find a specific drug quantity. See United States
v. Aguayo-Delgado, 220 F.3d 926, 934 (8th Cir. 2000) (explaining no Apprendi error
occurs when a sentence is within the statutory maximum of 20 years authorized by
21 U.S.C. § 841(b)(1)(C) without reference to drug quantity).
III
The Kameruds raise numerous other pre-trial, trial, and sentencing issues, all
of which we review for plain error because the Kameruds did not raise or preserve the
claims in the district court. Under the plain error standard, we will only reverse
obvious errors which affect a defendant's substantial rights and seriously affect the
fairness, integrity, or public reputation of judicial proceedings. United States v.
Evans, 272 F.3d 1069, 1080 (8th Cir. 2001), cert. denied, 535 U.S. 1029 (2002), and
cert. denied, 535 U.S. 1072 (2002), and cert. denied sub nom. Roberts v. United
States, 535 U.S. 1087 (2002), and cert. denied, __ U.S. __, 123 S.Ct. 221 (2002).
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Together, Cory and Brett contend the government failed to charge multiple
conspiracies even though the evidence proved two separate conspiracies, one
involving the events of the summer of 2000, and a second involving events which
occurred in 2001. Even if we assume the Kameruds' contention is true, there is no
plain error. The Kameruds did not request a jury instruction on multiple conspiracies,
and cannot show any prejudice because, if there were two conspiracies, the Kameruds
were parties to both. See United States v. Zimmerman, 832 F.2d 454, 457 n.2 (8th
Cir. 1987) (rejecting a claim of prejudice where proof of multiple conspiracies varied
from indictment charging single conspiracy, but evidence showed defendant was a
party to each conspiracy).
Separately, Cory makes five claims. First, he contends the original indictment
and superseding indictment2 filed against him were defective because they recited a
statutory penalty provision which required proof of just 50 grams or more of a
mixture or substance containing methamphetamine (21 U.S.C. § 841(b)(1)(B)), even
though he was charged with a conspiracy involving 500 grams or more (the amount
required for a violation of 21 U.S.C. § 841(b)(1)(A)). No plain error occurred. The
government necessarily proved a violation of § 841(b)(1)(B) by proving the greater
amount required under § 841(b)(1)(A), and the 240 month sentence Cory received fell
within the statutory maximum allowed under § 841(b)(1)(B), the penalty provision
actually recited in the indictments. In other words, Cory can show no prejudice
resulting from the government, in essence, "over-proving" a violation of §
841(b)(1)(B).
Second, Cory claims the government was required to renew its intent to seek
an enhanced sentence under 21 U.S.C. § 851 after filing the superseding indictment.
2
The superseding indictment enlarged the period of the conspiracy by one year,
and added as an objective of the conspiracy the distribution or intent to distribute to
a person under the age of twenty-one in violation of 21 U.S.C. § 859.
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Cory also claims he was unaware of the original § 851 notice because it was provided
to his attorney, not to him personally. Neither claim has merit. By its own terms, the
statute permits notice to be served upon defense counsel. See 21 U.S.C. § 851 (a)(1)
("No person who stands convicted of an offense under this part shall be sentenced to
increased punishment by reason of one or more prior convictions, unless before trial,
or before entry of a plea of guilty, the United States attorney files an information with
the court (and serves a copy of such information on the person or counsel for the
person) stating in writing the previous convictions to be relied upon.") (emphasis
added). Furthermore, the government is not required to refile a notice of enhanced
sentence under 21 U.S.C. § 851 after the return of a superseding indictment. United
States v. Wright, 932 F.2d 868, 882 (10th Cir. 1991).
Third, Cory claims a violation of the Speedy Trial Act, 18 U.S.C. § 3161(c)(2),3
because his trial commenced the same day he was arraigned on the superseding
indictment and he did not have 30 days to prepare for trial. The Speedy Trial Act
does not require that the 30-day trial preparation period be restarted upon the filing
of a superseding indictment. United States v. Rojas-Contreras, 474 U.S. 231, 234
(1985). The district court has discretion to grant a continuance upon the filing of a
superseding indictment but "is not bound to exercise its broad discretion to grant a
continuance unless the defendant would be prejudiced by a lack of time to prepare a
defense to the charges in the superseding indictment." United States v. Punelli, 892
F.2d 1364, 1369 (8th Cir. 1990). Since Cory did not request a continuance, and has
failed to demonstrate how his counsel was unprepared at trial, the district court did
not plainly err in proceeding to trial immediately following the arraignment on the
superseding indictment. See United States v. Maynie, 257 F.3d 908, 915 (8th Cir.
3
18 U.S.C. § 3161(c)(2) provides that "[u]nless the defendant consents in
writing to the contrary, the trial shall not commence less than thirty days from the
date on which the defendant first appears through counsel or expressly waives
counsel and elects to proceed pro se."
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2001) (holding district court did not abuse its discretion in proceeding to trial
immediately following the arraignment on superseding indictment where neither
defendant or his counsel complained the last minute arraignment prejudiced the
defense in any manner), cert. denied sub nom. Logan v. United States, 534 U.S. 1151(2002), and cert. denied, 535 U.S. 944 (2002).
Fourth, Cory argues the government violated the Jencks Act, 18 U.S.C. §
4
3500, by not disclosing the grand jury transcript of a trial witness, Officer Boone.
After trial, a magistrate judge5 conducted an in camera review of the transcript of
Officer Boone's grand jury testimony, and determined the transcript was not covered
by the Jencks Act because the officer's grand jury testimony did not relate to the
subject matter of his trial testimony. Although Cory never appealed that ruling, out
of an abundance of caution we reviewed the grand jury transcript and agree it
contains no statements by Officer Boone which relate to the subject matter of his trial
testimony. Cory further contends, however, that the grand jury transcript should be
"fair game" under the Jencks Act so long as anyone whose testimony Office Boone
summarized to the grand jury testified at trial. We disagree. "[T]he Constitution does
not prohibit the use of hearsay testimony in grand jury proceedings," United States
v. Hintzman, 806 F.2d 840, 843 (8th Cir. 1986), and the Jencks Act only required
disclosure of the grand jury transcript if it contained statements by Officer Boone that
related to the subject matter of his own trial testimony, not some other witness's trial
testimony.
4
18 U.S.C. § 3500(b) provides in relevant part that "[a]fter a witness called by
the United States has testified on direct examination, the court shall, on motion of the
defendant, order the United States to produce any statement (as hereinafter defined)
of the witness in the possession of the United States which relates to the subject
matter as to which the witness has testified."
5
The Honorable Paul A. Zoss, United States Magistrate Judge for the Northern
District of Iowa.
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Finally, Cory contends a jury instruction was inconsistent with the verdict
form. Jury Instruction #8 indicated the first element of the crime of conspiracy was
that "two or more persons reached an agreement or come [sic] to an understanding to
distribute and possess with intent to distribute, and distribute and possess with intent
to distribute methamphetamine to one or more persons under twenty-one years of
age." (Emphasis added). The verdict form instructed the jury to answer the following
question:
The defendant is guilty of conspiracy to
___ Distribute methamphetamine
___ Possess with intent to distribute methamphetamine
___ Distribute methamphetamine to one or more persons under
twenty-one years of age
___ Possess with intent to distribute methamphetamine to one or more
persons under twenty-one years of age.
The jury checked the first, second, and fourth objects of the conspiracy, but did
not check the third one (i.e., distribution to someone under twenty-one). Cory
contends the jury did not understand the instructions, and therefore did not give each
charge separate consideration, because Instruction #8 required all objects of the
conspiracy to be found as part of one element of the crime of conspiracy, but the jury
found an agreement as to just three of the four objects of the conspiracy.
To the extent Instruction #8 required all objects of the conspiracy to be proven
as one element of the crime of conspiracy, it was incorrect. Although all elements of
a conspiracy must be proven to find a defendant guilty, all objects of the conspiracy
need not be proven. See United States v. Mohr, 728 F.2d 1132, 1135 (8th Cir. 1984)
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("Where a statute specifies two or more ways in which an offense may be committed,
however, all may be alleged in the conjunctive in one count of the indictment, and
proof of any one of the acts conjunctively charged may establish guilt"). Here, the
government proved the first element of a conspiracy by proving the existence of an
agreement to accomplish one or more objects of the conspiracy. The jury
unanimously agreed on three of the four objects of the conspiracy, even though proof
of just one of the four would have been sufficient to support the conviction.
Cory failed to object to Instruction #8, perhaps because it favored him if the
jury would have been confused into believing the government had to prove all objects
of the conspiracy to satisfy the first element of the crime of conspiracy. Nevertheless,
his failure to object subjects this claim to plain error review, and we find no plain
error. The very fact the jury separately considered each of the objects of the
conspiracy, and unanimously agreed on three of the four, satisfies us that the jury
applied the law correctly and was not confused by the instruction.
Brett also makes several of his own claims. First, he argues the district court
plainly erred by failing to instruct the jury with Eighth Circuit Pattern Jury Instruction
506F, entitled "Conspiracy: Multiple Offenses."6 Brett argues the failure to use this
particular instruction meant the jury did not understand it must unanimously agree
upon one or more objects of the conspiracy to find him guilty. As we stated above,
6
The pattern instruction provides as follows:
The indictment charges a conspiracy to commit [two] [three, etc]
separate offenses. It is not necessary for the Government to prove a
conspiracy to commit [both] [all] of those offenses. It would be
sufficient if the Government proves, beyond a reasonable doubt, a
conspiracy to commit one of those offenses; but in that event, in order
to return a verdict of guilty, you must unanimously agree upon which of
the [two] [three, etc] offenses was the subject of the conspiracy. If you
cannot agree in that matter, you must find the defendant not guilty.
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however, we are confident the jury fully understood they were required to
unanimously find one or more of the objects of the conspiracy present before finding
Brett guilty, because the verdict form shows the jury separately considered all four
of the possible objects of the conspiracy, and did not unanimously agree upon one of
the four. Furthermore, the district court gave a general unanimity instruction which
provided "[y]ou should try to reach an agreement if you can do so without violence
to individual judgment, because a verdict – whether guilty or not guilty – must be
unanimous." Under plain error review, we conclude the general unanimity instruction
was sufficient to protect Brett's constitutional rights. See United States v. Gruenberg,
989 F.2d 971, 975 (8th Cir. 1993) ("A general unanimity instruction usually protects
a defendant's sixth amendment right to a unanimous verdict.") (quoting United States
v. Montanye, 962 F.2d 1332, 1341 (8th Cir. 1992)).
Next, Brett contends the prosecutor committed misconduct by improperly
vouching for the credibility of the government's cooperating witnesses,
misrepresenting to the jury the extent of the charging and sentencing deals offered to
two cooperating witnesses, interfering with Brett's right to present evidence, and
failing to provide a transcript of Officer Boone's grand jury testimony. We reject
each of these claims.
The prosecutor did not improperly vouch for the government's cooperating
witnesses merely by asking them about the plea agreements they had reached with the
government, part of which included the government's agreement to move for
downward departures on their sentences in exchange for truthful testimony. See
United States v. Tulk, 171 F.3d 596, 600 (8th Cir. 1999) (questioning witnesses about
"the existence of a plea agreement, its terms, and a witness' understanding of the
agreement is not improper [and does] not suggest that the government had
independently verified the testimony or that acceptance of the agreement implied that
the proposed testimony was accurate.").
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Neither did the prosecutor commit misconduct by asking Russell Brick and
Stacey Bitz about the potential sentences they faced if they had decided not to
cooperate. First, the questions called only for each witness's understanding of the
potential sentences they faced, not the actual sentences each may have faced. Second,
there is no indication the responses given by either Brick or Bitz were inaccurate.
Finally, if Brett thought there was something to gain from trying to establish these
two witnesses faced even stiffer sentences because of their prior criminal histories,
each of the witnesses was subject to cross-examination in that regard.
The prosecutor did not interfere with Brett's ability to call a witness by
threatening the witness with prosecution if he testified for the defense. The
prosecutor merely informed the district court there was a possibility, based on the
government's investigation, that the witness may be exposed to criminal liability for
his involvement with the Kameruds, and inquired of the court whether the witness
had been afforded a chance to consult with an attorney about his Fifth Amendment
privilege against self-incrimination prior to testifying. The prosecutor suggested the
witness should have the opportunity to consult with an attorney prior to testifying.
The district court agreed, and asked the public defender to consult with the witness.
After consultation, the witness decided not to testify. This sequence of events does
not suggest any prosecutorial misconduct.
Finally, the prosecutor did not commit misconduct by failing to disclose
Officer Boone's grand jury transcript because, as we explained above, the transcript
was not subject to the Jencks Act.
Brett also claims he did not waive, on the record, the right to testify in his own
behalf, and that such a waiver may not be presumed from a silent record. We find no
plain error because "if an accused desires to exercise [his] constitutional right to
testify the accused must act affirmatively and express to the court [his] desire to do
so at the appropriate time or a knowing and voluntary waiver of the right is deemed
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to have occurred." United States v. Blum, 65 F.3d 1436, 1444 (8th Cir. 1995) (citing
United States v. Bernloehr, 833 F.2d 749, 752 (8th Cir.1987)).
Lastly, Brett submits the district court plainly erred by sentencing him to a ten-
year term of supervised release. Brett's contention is based upon a misperception that
he was only subject to a five-year term of supervised release. He claims the ten-year
term was imposed pursuant to 21 U.S.C. § 859, which provides a person "who
violates section 841(a)(1) of this title by distributing a controlled substance to a
person under twenty-one years of age is . . . subject to . . . at least twice any term of
supervised release authorized by section 841(b)." Brett argues the jury rejected
distribution to a minor as one of the objects of the conspiracy, and thus it was
improper to double his term of supervised release pursuant to 21 U.S.C. § 859.
Brett's term of supervised release was permissible without any reference to or
reliance upon 21 U.S.C. § 859. Brett had a prior felony drug conviction which
enhanced his sentence under 21 U.S.C. § 841. In such a case, § 841(b)(1)(C), the
subsection that applies even in the absence of a drug quantity finding by the jury,
"permits the imposition of any amount of supervised release between six years and
life." Aguayo-Delgado, 220 F.3d at 933.
IV
We affirm the judgments of conviction and sentences in all respects.7
7
We decline to discuss the three ineffective assistance of counsel claims raised
by Cory in this direct appeal, because those are more appropriately addressed in a
motion brought under 28 U.S.C. § 2255. See United States v. Soriano-Hernandez,
310 F.3d 1099, 1105 & n.9 (8th Cir. 2002) (explaining that claims of ineffective
assistance should only be considered on direct appeal in exceptional cases where
district court has already fully developed the evidentiary record on the ineffectiveness
claim).
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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