United States v. Joshua Parks ( 2004 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 03-1286
    ___________
    United States of America                *
    *
    Appellee,                   *
    * Appeal from the United States
    v.                                * District Court for the
    * District of Nebraska.
    Joshua Parks,                           *
    *
    Appellant.                  *
    ___________
    Submitted: October 21, 2003
    Filed: April 14, 2004
    ___________
    Before RILEY, BEAM, and SMITH, Circuit Judges.
    ___________
    SMITH, Circuit Judge.
    Joshua Parks was convicted by a jury of one count of conspiracy to distribute
    and possession with the intent to distribute over fifty grams of methamphetamine in
    violation of 
    21 U.S.C. §§ 841
    (a)(1) and 846, and three counts of aiding and abetting
    a false statement in connection with a firearm purchase in violation of 
    18 U.S.C. § 922
    (a)(6). Parks disputes whether the jury had sufficient evidence to find a
    conspiracy involving more than fifty grams, and whether there was sufficient
    evidence presented to support the gun charges. Parks also challenges the district
    court's1 denial of his motion for downward departure, pursuant to Sentencing
    Guidelines § 5H1.1, § 5K2.0, and § 4A1.3. Finally, Parks questions the district court's
    evidentiary ruling permitting the government's use of demonstrative aids during trial.
    For the reasons set forth below, we affirm the judgment and sentence imposed by the
    district court.
    I. Drug Conviction
    Parks first argues that the evidence was insufficient to support his conviction
    for conspiracy with intent to distribute and possession of methamphetamine with
    intent to distribute. He contends the evidence does not sufficiently establish that he
    intended to distribute the methamphetamine. We disagree.
    In order to convict Parks of conspiracy to distribute, the government was
    required to prove that (1) a conspiracy with an illegal purpose existed, (2) Parks knew
    about the conspiracy, and (3) he knowingly became a part of the conspiracy. United
    States v. Washington, 
    318 F.3d 845
    , 852 (8th Cir. 2003). In reviewing whether
    sufficient evidence was presented to support the charge, we consider the evidence "in
    the light most favorable to the government, resolving evidentiary conflicts in favor
    of the government, and accepting all reasonable inferences drawn from the evidence
    that support the jury's verdict." United States v. Espino, 
    317 F.3d 788
    , 792 (8th Cir.
    2003).
    Government witness Laura Tindall testified that she first met Parks in 2000,
    while employed at a Kwik Shop located in Lincoln, Nebraska. At that time, Tindall
    was using and selling methamphetamine. Tindall testified that Parks came to the
    Kwik Shop and told her that he had something for her to try, which she later
    determined to be a half gram of methamphetamine. She further testified that Parks
    1
    The Honorable Richard G. Kopf, Chief Judge, United States District Court
    for the District of Nebraska.
    -2-
    returned to the Kwik Shop a second time, and that they "started kinda doing business
    together." She told the jury that Parks would provide her with samples of
    methamphetamine for her own personal use, hoping that she would approve of the
    drug's quality and sell it to other customers. She testified that Parks provided her with
    methamphetamine samples fifteen to thirty times, and that each sample was
    approximately one-half gram of methamphetamine.
    Tindall stated that Parks would frequently contact her to inquire whether she
    needed any methamphetamine for resale, and that in the late fall of 2000 she began
    to buy methamphetamine directly from Parks. Parks would come to her home, provide
    her with a sample of methamphetamine to be purchased, and then would give her a
    price for the methamphetamine. Tindall testified that she purchased "teeners" of
    methamphetamine (1.75 grams) from Parks on approximately fifteen occasions. In
    addition to the "teeners" purchased from Parks, she purchased additional amounts of
    methamphetamine for resale in quantities ranging from one-eighth ounce to one-
    quarter ounce.
    Beginning in the winter of 2000, and continuing through May 2001, Tindall
    stated that she was purchasing a large enough quantity of methamphetamine from
    Parks that he "fronted" her a resale supply. Tindall explained these drug fronts as a
    procedure whereby Parks would provide her with methamphetamine, establish a
    price, and then she would pay him after she sold the inventory. She stated that Parks
    fronted her drugs for resale approximately fifteen times.
    Tindall also testified that she and Parks would "break down" the drugs. She
    testified that the "breaking down" process entails separating the drugs–even the small
    "teener" quantities–into smaller portions for resale. She further testified that on five
    to six separate occasions Parks brought methamphetamine to her home and they
    divided the drug into gram to half-gram quantities.
    -3-
    Tindall further testified that in early 2001 Parks brought four bags of
    methamphetamine–wrapped in cellophane–to her home. She estimated these bags in
    aggregate contained approximately four ounces of methamphetamine. Parks provided
    Tindall with a half-gram "sample" and inquired if she could "get rid" of the remaining
    methamphetamine for him. Tindall testified that because this particular
    methamphetamine was not of sufficient quality for her customers–she needed
    injection grade, not smoking grade–she was unable to accommodate his request.
    Another government witness, Leonard Woodrum, testified that he purchased
    methamphetamine from Parks on two occasions. Woodrum purchased a quarter ounce
    of methamphetamine from Parks in September of 2000. Approximately two weeks
    later, Woodrum purchased another quarter ounce of methamphetamine from Parks.
    Also, in October of 2000, Parks fronted one ounce of methamphetamine to Woodrum
    for resale.2
    Benjamin Schwab also testified that, for approximately four to five months
    (sometime after July 2000), he and Parks used and distributed methamphetamine.
    During this time period, Schwab testified that he and Parks would use
    methamphetamine approximately every other day. Schwab stated that on one
    occasion–while traveling in Parks's vehicle–he observed at least one ounce of
    methamphetamine secreted in a CD case. Also, Schwab testified that he observed
    Parks "breaking down" an ounce of methamphetamine into "eight balls" (one-eighth
    ounce quantities). Schwab acknowledged that he knew Parks was in the business of
    selling methamphetamine and that in October of 2000 he accompanied Parks to York,
    Nebraska, for the express purpose of acquiring a supply of methamphetamine.
    2
    Woodrum testified that he was unsuccessful in his attempt to resell this
    quantity at the price that Parks designated, and the methamphetamine was ultimately
    returned to Parks.
    -4-
    Schwab testified that on this trip Parks received two ounces of methamphetamine
    from Parks's supplier.
    Finally, LaTriesha Rogers testified that her roommate, Miranda Easton,
    contacted Parks to acquire methamphetamine. In response to Easton's request, Parks
    delivered an "eight ball" of methamphetamine to their residence.
    In our review, "the relevant question is whether, after viewing the evidence in
    the light most favorable to the prosecution, any rational trier of fact could have found
    the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia,
    
    443 U.S. 307
    , 319 (1979). Here, numerous witnesses testified that Parks sold and
    distributed methamphetamine. The testimony also established that Parks provided
    promotional amounts of the drug to encourage resale; that he often "fronted" drugs
    for resale; and that he engaged in the "breaking down" process of the drug to facilitate
    distribution for resale. The witnesses also detailed Parks's involvement in a
    conspiracy involving a quantity of methamphetamine in excess of fifty grams.
    Considering the evidence in the light most favorable to the verdict, we find that the
    evidence was more than sufficient to support Parks's conviction on the challenged
    count.
    II. Gun Convictions
    Parks also challenges the sufficiency of the evidence to support the jury's
    determination that–on three occasions–he aided and abetted a false statement in
    connection with a firearm purchase. We are not persuaded by his argument.
    Tindall testified that in May of 2001, Parks approached her requesting that she
    purchase a weapon for him using her handgun-purchase certificate. He indicated that
    he would change ownership into his name at the police department after the purchase.
    Tindall responded that she did not have the money to buy a handgun. Tindall stated
    that Parks then agreed to supply the money for the handgun purchase. On May 20,
    -5-
    2001, she and Parks entered Scheels Sporting Goods in Lincoln, Nebraska. Parks
    selected a weapon and Tindall purchased the handgun and ammunition. At the time
    of purchase, Tindall attested in writing that she was the actual purchaser of the
    firearm. She testified at trial that–despite her declaration otherwise–Parks was the
    actual purchaser of the firearm.3
    The following day, after Parks explained that he needed another gun, Tindall
    and Parks went to the Arms & Ammo gun dealer and purchased two handguns with
    funds supplied by Parks. She testified that after the purchase–and again, contrary to
    her attestation that she was the actual purchaser–Parks took possession of both newly-
    acquired firearms.
    On May 29, 2001, Tindall again purchased handguns on Parks's behalf. Parks
    provided the money for the purchase of three additional handguns from the same
    Arms & Ammo store. Again, Tindall indicated that she was the actual purchaser.
    In all, Parks and Tindall purchased six handguns in nine days. At the time of
    these purchases, Parks was nineteen years of age, had not acquired a permit to
    purchase a handgun pursuant to Nebraska law, and was ineligible to purchase or
    possess a handgun. Parks, however, provided the funds for Tindall's purchase of the
    handguns and took possession of the guns after Tindall completed each purchase.
    Given Tindall's testimony, the jury's verdict rests on evidence that is more than
    sufficient to support the gun-related convictions.
    3
    On appeal, Parks brings particular attention to the fact that at the time of the
    gun purchases Tindall's–otherwise valid–Nebraska driver's license was expired.
    While this fact may have assisted the jury in its ultimate determinations relating to
    Tindall's credibility, it is of little relevance in our review of the sufficiency of the
    evidence to support the gun charges.
    -6-
    III. Downward Departure
    Parks next argues that the district court erred in its refusal to grant his motion
    for a downward departure. Parks asserts that the Presentence Investigation Report
    overstated his criminal history and that his case was outside the "heartland" of other
    defendants. The district court was not persuaded and gave Parks a sentence within the
    Guidelines range. According to the district court, Parks's criminal history was not
    overstated, "either in terms of whether it accurately describes the true offense
    behavior, or the likelihood of the predictive value of recidivism," and that Parks's
    troubled youth was not "sufficiently extraordinary . . . to take it outside the
    heartland."
    Parks asks us to reconsider the district court's refusal to depart downward in
    light of the extraordinary circumstances of this case and asserts that we must review
    the departure determination de novo. In response, the government asserts that we lack
    jurisdiction to review the district court's discretionary refusal to depart downward.
    Our holding in United States v. Henderson-Durand, 
    985 F.2d 970
    , 976 (8th Cir.),
    cert. denied, 
    510 U.S. 856
     (1993) is dispositive. In Henderson-Durand we held that
    the discretionary refusal to depart downward is not reviewable under 
    18 U.S.C. § 3353
    . We review a denial of a downward departure only to determine whether the
    district court properly applied the Sentencing Guidelines; we do not review its
    determination that a departure was not warranted. Henderson-Durand, 
    supra.
    It is clear from a reading of the district court's statement denying Parks's
    downward-departure motion that the court recognized its authority to depart, and
    simply chose not to. Thus, the valid sentence imposed by the district court is not
    subject to our review.
    -7-
    IV. Demonstrative Aids
    4
    Finally, Parks argues that the introduction of handguns similar to the ones that
    he obtained–though not the actual ones–prejudiced him at trial. Consequently, he
    argues, the district court abused its discretion in admitting the demonstrative
    evidence. During the course of the trial, the government offered numerous firearms
    into evidence for demonstrative purposes. The government sought to show the jury
    the types of weapons that Parks allegedly purchased through Tindall. The government
    argued that these replica weapons would assist the jury in its evaluation of the
    pending gun charges. The district court permitted the use of the demonstrative aids
    but gave a limiting instruction to the jury. The district court told the jury that these
    weapons were admitted for demonstrative purposes only "so you get a sense of what
    the guns looked like, what type of gun it was." The guns did not go to the jury room
    during deliberations. The district court further instructed the jury that the handguns
    were not the actual guns that were purchased.
    We review the district court's determinations concerning admissibility of
    evidence for abuse of discretion. United States v. Kehoe, 
    310 F.3d 579
    , 590 (8th Cir.
    2002). In balancing the prejudicial effect and probative value, great deference is
    given to the district judge's determination. United States v. Allee, 
    299 F.3d 996
    , 1002
    (8th Cir. 2002). We have previously approved the use of replica evidence, more
    specifically guns, for demonstrative purposes. See United States v. McIntosh, 
    23 F.3d 1454
    , 1456 (8th Cir. 1994); see also, Flores v. State of Minnesota, 
    906 F.2d 1300
    ,
    1304 (8th Cir.), cert. denied, 
    498 U.S. 945
     (1990). Courts in our sister circuits have
    also frequently approved of the admission of replica evidence, more specifically guns,
    4
    Parks makes a passing argument that the district court erred in admitting
    Parks's statement to Special Agent Leadingham. However, the statement was made
    by a party opponent and offered against the party. The statement is admissible under
    Rule 801(d)(2)(A) of the Federal Rules of Evidence. Accordingly, the district court
    did not abuse its discretion in admitting Parks's statement.
    -8-
    for demonstrative purposes. United States v. Aldaco, 
    201 F.3d 979
    , 986 (7th Cir.
    2000); United States v. Russell, 
    971 F.2d 1098
    , 1105 (4th Cir. 1992); United States
    v. Ferreira, 
    821 F.2d 1
    , 6 (1st Cir. 1987); Banning v. United States, 
    130 F.2d 330
    ,
    335–36 (6th Cir. 1942).
    Here, the potential prejudice–jury confusion over whether the guns displayed
    in court were the actual guns at issue–was adequately addressed by the district court's
    prohibition on the use of the weapons during deliberations and the accompanying
    cautionary instructions. Because the use of replica evidence for demonstrative
    purposes is a widely-accepted practice, and because the court took steps to minimize
    potential prejudice to Parks, we find no abuse of discretion in allowing the use of
    replica handguns in this case.
    For the foregoing reasons, we affirm the decision of the district court in all
    respects.
    ______________________________
    -9-