United States v. Wicahpe Milk ( 2023 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 21-3722
___________________________
United States of America
Plaintiff - Appellee
v.
Wicahpe George Milk
Defendant - Appellant
____________
Appeal from United States District Court
for the District of South Dakota - Western
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Submitted: October 20, 2022
Filed: May 3, 2023
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Before KELLY, WOLLMAN, and KOBES, Circuit Judges.
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KELLY, Circuit Judge.
Wicahpe Milk was convicted by a jury of conspiracy to distribute 500 grams
or more of a substance containing methamphetamine, possession of a firearm as a
convicted felon, and obstruction of justice. On appeal, Milk challenges several
district court decisions that span from indictment through sentencing. After careful
review of the record and of all issues raised on appeal, we affirm.
I.
“We present the facts in a light most favorable to the verdicts, drawing all
reasonable inferences from the evidence that support the jury’s verdicts.” United
States v. Ramon-Rodriguez, 492 F.3d 930, 934 (8th Cir. 2007). In January 2015,
Milk moved to California after he was released from federal prison on an unrelated
offense. Shortly thereafter, Milk turned to distributing methamphetamine. Milk
used his cousin, Frank Milk (Frank), as one of his first distributors. In late-summer
2015, Frank traveled from South Dakota to California to visit Milk. While there,
Milk advanced, or “fronted,” distribution-level quantities of methamphetamine for
Frank to sell in South Dakota, and Frank agreed to bring his profits back to Milk.
Frank, on his return to South Dakota, enlisted the help of “trusted” associates to sell
the drugs. Frank later made two more trips to California, each time receiving
distribution-level quantities of methamphetamine from Milk.
Milk, too, made at least two trips to South Dakota to sell methamphetamine
he transported from California. The Lakota Prairie Ranch Resort in Kyle, South
Dakota, served as the initial “base of operations” for Milk’s drug activity, and Milk
rented rooms at this motel to engage in drug transactions. Milk soon became known
as the drug source, or “plug,” to his distributors and associates. Frank and several
others, including Harold Brewer and Julissa Poor Bear, served as Milk’s distributors.
Milk frequently fronted them large quantities of methamphetamine that they quickly
sold throughout South Dakota.
Milk later relocated from California to South Dakota, and he continued to
acquire his methamphetamine from California. Milk rented a house called Turtle
Creek in Rapid City, South Dakota, where he lived with Poor Bear, Brewer, and
others. Together, Milk and his distributors regularly engaged in drug deals inside
the home. Isaac Francis, owner of the Turtle Creek home, occasionally obtained
user-level quantities of methamphetamine from Milk and Poor Bear, and the two
sometimes paid him for rent with methamphetamine. Neighbors complained of the
noise and foot traffic in and out of the home, and after two or three months, Francis
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asked Milk and the others to move out. Milk and Poor Bear relocated to the Pine
Ridge Reservation in Wanblee, South Dakota, where the two continued selling
drugs.
On August 17, 2016, Milk was arrested by local law enforcement during a
traffic stop in Box Elder, South Dakota. Officers discovered 156.12 grams of
methamphetamine, a handgun, and drug paraphernalia in the vehicle. 1 On April 18,
2017, a federal grand jury returned a superseding indictment charging Milk with
conspiracy to distribute 500 grams or more of a mixture or substance containing
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846, and
possession of a firearm as a convicted felon, in violation of 18 U.S.C. §§ 922(g)(l).
Milk’s case was later joined with two of his alleged co-conspirators, Brewer and
Poor Bear. Brewer and Poor Bear soon entered guilty pleas. Milk pleaded not guilty.
Milk remained incarcerated in the Pennington County Jail in Rapid City,
South Dakota, pending his trial. Brewer, incarcerated in the same jail, began
receiving contraband jailhouse notes from Milk about Brewer’s statements to law
enforcement. Milk’s notes to Brewer said things like, “Tell them nothing,” “[I]f you
tell them about any dope you gonna get us jambed up,” “Get that story recanted,”
and “Follow my lead and stick to the code of silence.” In other notes, Milk
demanded that Brewer call his own or Milk’s attorney to explain that Brewer’s
previous statements to law enforcement were “lie[s].” On April 16, 2019, the
government obtained a second superseding indictment against Milk, adding a charge
for obstruction of justice in violation of 18 U.S.C. § 1503.
Later, law enforcement received information that Milk and several other
inmates were attempting to intimidate a witness—also an inmate at the jail—who
was scheduled to testify in the criminal trial of one of Milk’s distributors. The
government responded by establishing a “taint team,” composed of an investigating
1
Milk was a back-seat passenger in the car, a red Pontiac Grand Prix, which
was borrowed from another man.
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agent and attorney separate from the team investigating and prosecuting Milk, to
search Milk’s jail cell for evidence of witness tampering. The taint team initially
screened the materials seized from Milk’s cell for any potentially privileged
documents before turning the remaining documents over to the prosecution team.
Before trial, Milk filed several pretrial motions, which the district court2
denied in whole or in part, and the case proceeded to trial. After the jury returned
guilty verdicts on all counts, Milk moved to dismiss the case for lack of jurisdiction.
The district court 3 denied the motion. Milk received a sentence of 360 months of
imprisonment on the drug conspiracy count and 120 months of imprisonment on the
firearm and obstruction of justice counts, with all sentences to run concurrently,
followed by 5 years of supervised release.
II.
On appeal, Milk challenges several of the district court’s pre- and post-trial
rulings, argues the evidence was insufficient to support his convictions, and
challenges the calculation of his advisory Guidelines range at sentencing. We
address Milk’s various arguments in turn and present additional facts as relevant to
the arguments.
A.
We begin with Milk’s assertion that the district court lacked subject matter
jurisdiction over his case. “The issue of whether federal subject matter jurisdiction
2
The Honorable Jeffrey L. Viken, then Chief Judge for the District of South
Dakota, adopting the report and recommendation of the Honorable Judge Daneta
Wollmann, United States Magistrate Judge for the District of South Dakota.
3
The Honorable Karen E. Schreier, United States District Judge for the
District of South Dakota.
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exists is subject to de novo review.” United States v. Thunder Hawk, 127 F.3d 705,
706 (8th Cir. 1997).
Milk, who is Native American and an enrolled member of the Oglala Sioux
Tribe, contends that the district court lacked jurisdiction because (1) he was
convicted of crimes that are not enumerated under the Major Crimes Act,
18 U.S.C. § 1153, 4 and (2) under the General Crimes Act, 18 U.S.C. § 1152, the
alleged unlawful acts in this case occurred on the Pine Ridge Reservation and only
involved American Indian people. 5 But Milk’s arguments are foreclosed by
precedent. As we have recognized, federal laws of general application—that is,
“those in which [the] situs of the offense is not an element of the crime,”—apply on
Indian reservations, even to offenses committed by an Indian person against the
person or property of another Indian person. United States v. Wadena, 152 F.3d
831, 841 (8th Cir. 1998); see United States v. Drapeau, 414 F.3d 869, 877 (8th Cir.
2005) (“We have held that [the General Crimes Act] and its exceptions ‘do not
extend or restrict the application of general federal criminal statutes to Indian
reservations.’” (quoting United States v. Blue, 722 F.2d 383, 384 (8th Cir. 1983)).
And while Milk further contends that the district court lacked jurisdiction under the
4
The Major Crimes Act provides that the United States has “exclusive
jurisdiction” over any Native American person who commits “murder,
manslaughter, kidnapping, maiming, a felony under chapter 109A, incest, a felony
assault under section 113, an assault against an individual who has not attained the
age of 16 years, felony child abuse or neglect, arson, burglary, robbery, and a felony
under section 661 of this title within the Indian country.” 18 U.S.C. § 1153(a).
5
The General Crimes Act provides, in relevant part, that “the general laws of
the United States as to the punishment of offenses committed in any place within the
sole and exclusive jurisdiction of the United States . . . shall extend to the Indian
country,” but “shall not extend to offenses committed by one Indian against the
person or property of another Indian, . . . or to any case where, by treaty stipulations,
the exclusive jurisdiction over such offenses is or may be secured to the Indian
tribes.” 18 U.S.C. § 1152.
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Fort Laramie Treaty,6 this argument, too, is foreclosed by precedent. See United
States v. Jacobs, 638 F.3d 567, 568 (8th Cir. 2011) (recognizing that we have
previously “rejected similar challenges to federal subject matter jurisdiction based
upon allegations the United States failed to comply with purported jurisdictional
prerequisites in the Fort Laramie Treaty.”).
B.
Next, we turn to Milk’s appeal of the denial of his motions to suppress
evidence seized during the traffic stop and from his jail cell. “In evaluating the
denial of a motion to suppress, we review the district court’s legal conclusions de
novo and factual findings for clear error.” United States v. Nyah, 35 F.4th 1100,
1105 (8th Cir. 2022). “We will affirm unless the denial of the motion is unsupported
by substantial evidence, is based on an erroneous interpretation of the law, or it is
clear, based on the entire record, that a mistake was made.” United States v. Walker,
840 F.3d 477, 483 (8th Cir. 2016).
1.
First, Milk contends the August 17, 2016, traffic stop was unlawful. The
Fourth Amendment protects against unreasonable searches and seizures. U.S. Const.
amend. IV. “Under the Fourth Amendment, a traffic stop is reasonable if it is
supported by either probable cause or an articulable and reasonable suspicion that a
traffic violation has occurred.” Walker, 840 F.3d at 483 (quoting United States v.
Washington, 455 F.3d 824, 826 (8th Cir. 2006)). “Any traffic violation, however
minor, provides probable cause for a traffic stop.” United States v. Adler, 590 F.3d
6The Treaty, in relevant part, states, “If bad men among the Indians shall
commit a wrong or depredation upon the person or property of any one, . . . the
Indians herein named solemnly agree that they will, upon proof made to their agent,
and notice by him, deliver up the wrongdoer to the United States, to be tried and
punished according to its laws.” Treaty of Fort Laramie, art. I, April 29, 1868, 15
Stat. 635.
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581, 583 (8th Cir. 2009) (quoting United States v. Wright, 512 F.3d 466, 471 (8th
Cir. 2008)).
Deputy Keith Carlson conducted the traffic stop, and he stated that in the early
morning hours of August 17, while on “saturation patrol,”7 he observed a red Pontiac
driving erratically. Carlson testified that he saw the car sit at a stop sign for
“approximately 30 seconds,” drive “into the gravel area” of the road’s shoulder
before “jerking back into the roadway,” and then “braking randomly[,] slowing
down[,] and speeding up.” The district court credited this testimony. Milk
nonetheless argues that Carlson was “fibbing.” But “[a] credibility determination
made by a district court after a hearing on the merits of a motion to suppress is
virtually unassailable on appeal.” United States v. Morris, 915 F.3d 552, 555 (8th
Cir. 2019) (quotations omitted). And Deputy Carlson’s dashcam video from his
patrol vehicle captured the Pontiac crossing the center line of the roadway. We find
no clear error in the district court’s factual findings and agree that Deputy Carlson
had probable cause to stop the Pontiac.
Next, Milk challenges the warrantless search of the Pontiac. “Under the
automobile exception to the Fourth Amendment’s warrant requirement, a police
officer who has lawfully made a roadside stop of a vehicle may search the passenger
compartment and trunk of that vehicle if probable cause exists to believe that
contraband or evidence of criminal activity is located inside the vehicle.” Walker,
840 F.3d at 483. As Deputy Carlson approached the Pontiac, he smelled the odor of
marijuana coming from the car, and the driver appeared inebriated or under the
influence of a controlled substance. Milk challenges neither of these factual
findings. “We have repeatedly held that the odor of marijuana provides probable
cause for a warrantless search of a vehicle under the automobile exception.” United
States v. Williams, 955 F.3d 734, 737 (8th Cir. 2020); see Walker, 840 F.3d at 483
(“The odor of unburned marijuana can be highly probative in establishing probable
7
Deputy Carlson’s duties while on “saturation patrol” involved patrolling the
area to “[e]nforce traffic laws” while “focusing on alcohol or drug-impaired drivers.”
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cause for a search.”). Because both the stop and the search of the Pontiac were
supported by probable cause, the district court did not err in denying Milk’s
suppression motion.8
2.
Before trial, Milk filed a motion to suppress evidence seized from his jail cell
on Sixth Amendment grounds, arguing that the materials seized included attorney-
client privileged information and his work product. See In re Search Warrant Issued
June 13, 2019, 942 F.3d 159, 174 (4th Cir. 2019) (noting that the attorney-client
privilege and the work-product doctrine “jointly support the Sixth Amendment’s
guarantee of effective assistance of counsel”). After a hearing, the magistrate judge
recommended that most of the documents seized be suppressed because they were
protected by the work-product doctrine. Milk objected, arguing that dismissal of the
indictment, not merely suppression of the evidence, was the appropriate remedy.
The district court overruled the objection, finding that suppression alone was
appropriate, and adopted the magistrate judge’s recommendation.
On appeal, Milk reasserts his argument that the proper remedy was dismissal
of the indictment. But the remedy for any Sixth Amendment violation “should be
tailored to the injury suffered . . . and should not unnecessarily infringe on competing
interests.” United States v. Morrison, 449 U.S. 361, 364 (1981). And here, the
district court prohibited the government from using the privileged documents or their
contents at trial. Further, the district court required the government to establish that
any evidence it sought to use at trial was derived from sources independent of the
evidence seized from Milk’s cell. Milk offers nothing to suggest the government
violated that order by making use of the suppressed documents or information
gleaned from them at trial. Accordingly, we discern no abuse of discretion in the
8
Having found no error in the district court’s probable cause determination,
we need not address Milk’s argument concerning his standing to challenge the stop
and search of the vehicle. And in any event, the district court assumed that Milk had
standing.
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remedy crafted by the district court. See United States v. Woods, 978 F.3d 554, 564
(8th Cir. 2020) (reviewing the district court’s “fashioning of a remedy short of
dismissal” for abuse of discretion).
C.
Milk argues that the delay between his arrest on August 17, 2016, and his
initial appearance before a federal magistrate judge on September 26, 2016, violated
Federal Rule of Criminal Procedure 5(a)(1)(A) and that the indictment must be
dismissed as a result. Because Milk did not raise this claim to the district court, we
review it for plain error. See United States v. Pirani, 406 F.3d 543, 549 (8th Cir.
2005) (en banc); Fed. R. Crim. P. 52(b).
Under Rule 5(a), “[a] person making an arrest within the United States must
take the defendant without unnecessary delay before a magistrate judge.” Fed. R.
Crim. P. 5(a)(1)(A). But the rule “applies only to persons arrested and held under
federal law.” United States v. Cooke, 853 F.3d 464, 470 (8th Cir. 2017) (quoting
United States v. Elliott, 435 F.2d 1013, 1015 (8th Cir. 1970)). In the absence of a
federal arrest, the rule may apply only “when there is evidence indicating that the
arrest and detention by [a] state official were at the request of federal authorities or
for the purpose of assisting them.” Id. (quoting United States v. Jarrett, 423 F.2d
966, 971 (8th Cir. 1970)).
When Milk was arrested on August 17, 2016, he was taken into state custody.
Milk has offered no evidence to suggest he was held in state custody at the direction
of or in concert with federal officers. As a result, Rule 5(a) is not applicable. Milk
was not arrested on federal charges until September 26, 2016, and he made his initial
appearance the same day. There was no Rule 5(a) violation, plain or otherwise.
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D.
Milk also appeals the district court’s denial of his motion for a bill of
particulars on his conspiracy charge. “We review a district court’s ruling regarding
a bill of particulars for abuse of discretion.” United States v. Shepard, 462 F.3d 847,
860 (8th Cir. 2006). To establish reversible error based on a denial of his motion,
Milk “must show that he was actually surprised at trial and suffered prejudice from
the denial.” United States v. Livingstone, 576 F.3d 881, 883 (8th Cir. 2009) (quoting
United States v. Fleming, 8 F.3d 1264, 1265 (8th Cir. 1993)).
Milk argues the indictment lacked sufficient facts to allow him to mount a
defense against the charge of conspiracy. “A bill of particulars serves to inform the
defendant of the nature of the charge against him with sufficient precision to enable
him to prepare for trial, and to avoid or minimize the danger of surprise at trial.”
Shepard, 462 F.3d at 860 (cleaned up); see Livingstone, 576 F.3d at 883 (“If a
defendant believes that an indictment does not provide enough information to
prepare a defense, then he or she may move for a bill of particulars.”); Fed. R. Crim.
P. 7(f). But a bill of particulars “is not to be used for discovery purposes.” United
States v. Hill, 589 F.2d 1344, 1352 (8th Cir. 1979). An indictment is sufficient
“unless it is so defective that it cannot be said, by any reasonable construction, to
charge the offense for which the defendant was convicted.” United States v. Bowie,
618 F.3d 802, 817 (8th Cir. 2010) (quoting Fleming, 8 F.3d at 1265).
The indictment here set forth the elements of the offense, apprised Milk of the
type of drugs involved, and specified the time frame of the alleged drug conspiracy.
This was sufficient to inform Milk of the basis for the charge. See United States v.
Huggans, 650 F.3d 1210, 1218 (8th Cir. 2011) (holding that an indictment for
conspiracy to distribute a controlled substance provides “‘specific facts constituting
the offense’ if it apprises the defendant of the time frame of the alleged drug
conspiracy and the type of drugs involved” (citation omitted)). Further, Milk
concedes the government provided voluminous discovery prior to trial, including
proffer statements and witness interviews. Milk has failed to show any actual
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surprise at trial or prejudice. See United States v. Maull, 806 F.2d 1340, 1346 (8th
Cir. 1986) (finding no prejudice or surprise where, in response to the defendant’s
motion for a bill of particulars, the government provided the names of unindicted
conspirators and the statements of relevant individuals). The district court did not
abuse its discretion in denying Milk’s motion for a bill of particulars.
E.
Milk argues that the district court abused its discretion when it refused to sever
the conspiracy, firearm, and obstruction counts for trial under Federal Rule of
Criminal Procedure 14. Rule 14 allows for severance if “the joinder of offenses . . .
appears to prejudice a defendant.” Fed. R. Crim. P. 14(a). “We review denial of
severance under Rule 14 for an abuse of discretion and will reverse only upon a
showing of severe prejudice, that is, if the defendant would have had ‘an appreciable
chance for an acquittal’ in a severed trial.” United States v. Reichel, 911 F.3d 910,
915 (8th Cir. 2018) (quoting United States v. Geddes, 844 F.3d 983, 988 (8th Cir.
2017)). “No prejudice results from the refusal to sever when evidence of one charge
would be admissible in a separate trial on the other.” United States v. Mink, 9 F.4th
590, 604 (8th Cir. 2021) (quoting United States v. McCarther, 596 F.3d 438, 442
(8th Cir. 2010)).
Evidence that Milk unlawfully possessed a firearm would have been
admissible in a separate trial on the conspiracy charge because Milk was alleged to
have possessed the firearm during the drug conspiracy. The government’s evidence
showed that Milk possessed distribution-quantity drugs and a firearm
simultaneously, making his possession of the firearm relevant to the charged drug
conspiracy. See United States v. Jones, 880 F.2d 55, 61–62 (8th Cir. 1989). And in
a separate trial for obstruction, evidence of Milk’s conspiracy and firearm charges
would have been probative and admissible to show his intent or motive for seeking
to influence a witness’s testimony on those underlying charges. See United States
v. Rock, 282 F.3d 548, 552 (8th Cir. 2002) (finding no showing of prejudice where
the defendant’s “felon-in-possession charge would have been admissible in a
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separate trial of the witness tampering charge, because [his] witness tampering was
an attempt to avoid prosecution of the firearms charge”). Under these circumstances,
Milk has not shown that he would have had an appreciable chance for an acquittal
on any count had the trials been severed. See Reichel, 911 F.3d at 915.
Milk nonetheless contends he was prejudiced because he “had to make the
decision to testify as to all or none of the counts.” But “[a] defendant arguing for
severance on this basis must make a ‘persuasive and detailed showing regarding the
testimony he would give on the one count he wishes severed and the reason he cannot
testify on the other counts.’” McCarther, 596 F.3d at 443 (quoting United States v.
Possick, 849 F.2d 332, 338 (8th Cir. 1988)). Milk’s bare assertion fails to make the
requisite showing. See United States v. Little Dog, 398 F.3d 1032, 1037 (8th Cir.
2005) (holding that a defendant’s contention that “he was prejudiced because he did
not want to testify to the obstruction charge but did want to testify to the sexual
charges” was “not enough to require severance”). The district court did not abuse
its discretion in denying Milk’s motions to sever.
F.
Milk next argues that 18 U.S.C. § 1503, the federal obstruction-of-justice
statute under which he was convicted, criminalizes protected speech in violation of
the First Amendment and is unconstitutionally vague in violation of the Fifth
Amendment’s due process clause. “We review a challenge to the constitutionality
of a federal statute de novo.” United States v. Betcher, 534 F.3d 820, 823 (8th Cir.
2008).
18 U.S.C. § 1503(a) provides that whoever “corruptly or by threats or force,
or by any threatening letter or communication, influences, obstructs, or impedes, or
endeavors to influence, obstruct, or impede, the due administration of justice,” shall
be subject to criminal penalties. Milk argues that his prosecution under § 1503
abridged his First Amendment right to free speech and association as applied to the
conduct charged. We disagree. The indictment charged Milk with “endeavor[ing]
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to corruptly influence, obstruct and impede the due administration of justice in
United States v. Milk . . . and United States v. Poor Bear . . . by writing and causing
to be delivered letters to a witness to discourage and alter his testimony at such
proceedings.” Milk has failed to make any colorable showing that the First
Amendment shields such speech. See United States v. Parker, 871 F.3d 590, 605
(8th Cir. 2017) (finding that the defendant’s conduct did not fall within the confines
of the First Amendment where the facts at trial showed that he “conspired to threaten
government witnesses”); United States v. Jeter, 775 F.2d 670, 678 (6th Cir. 1985)
(holding that the defendant’s unlawful disclosure of secret grand jury testimony was
“merely another type of ordinary criminal communication in a conspiracy that has
been traditionally found undeserving of any First Amendment protection”).
Milk also argues that the phrase “due administration of justice” in § 1503 is
void for vagueness because it fails to apprise the public or defendants of the nature
of the prohibited conduct. “A statute is unconstitutional for vagueness if it fails to
provide adequate notice of the proscribed conduct or lends itself to arbitrary
enforcement.” United States v. Tebeau, 713 F.3d 955, 961 (8th Cir. 2013) (cleaned
up) (quoting United States v. Birbragher, 603 F.3d 478, 485 (8th Cir. 2010)). “When
reviewing for vagueness, we first determine if a statute is vague as applied to the
defendant’s conduct, and only if it is will we consider whether a statute is facially
unconstitutional.” United States v. KT Burgee, 988 F.3d 1054, 1060 (8th Cir. 2021).
For an as-applied challenge, “we look to whether the statute gave adequate
warning, under a specific set of facts, that [Milk’s] behavior was a criminal offense.”
United States v. Palmer, 917 F.3d 1035, 1038–39 (8th Cir. 2019) (quoting United
States v. Washam, 312 F.3d 926, 931 (8th Cir. 2002)). Milk’s only argument is that
the phrase “due administration of justice” can mean “anything that a prosecutor or
judge says it is.” But the evidence showed that Milk engaged in conduct that was
intended to discourage a witness from testifying, or to convince him to change his
testimony, at proceedings in Milk’s and Poor Bear’s federal criminal cases. These
allegations, included in the indictment, gave Milk adequate warning of the nature of
the conduct as well as the proceedings the conduct was intended to obstruct. The
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statute also contains a mens rea requirement that limits its scope to those who act
“corruptly.” 18 U.S.C. § 1503(a); see Posters ‘N’ Things, Ltd. v. United States, 511
U.S. 513, 526 (1994) (noting that scienter requirements in criminal statutes may
“assist[] in avoiding any vagueness problem”). Under the facts of this case, Milk
has failed to show that § 1503(a) was unconstitutionally vague as applied to him.
G.
We now address whether the evidence was sufficient to sustain Milk’s
convictions. Our review is de novo, “viewing evidence in the light most favorable
to the government, resolving conflicts in the government’s favor, and accepting all
reasonable inferences that support the verdict.” United States v. Maurstad, 35 F.4th
1139, 1144 (8th Cir. 2022) (quoting United States v. Casteel, 717 F.3d 635, 644 (8th
Cir. 2013)). “We will reverse only if no reasonable jury could have found [Milk]
guilty beyond a reasonable doubt.” Id.
1.
To convict Milk of conspiracy to distribute a controlled substance under 21
U.S.C. § 846, the government must prove (1) “a conspiracy to distribute
methamphetamine existed”; (2) Milk “knew about the conspiracy”; and (3) Milk
“knowingly became a part of the conspiracy.” United States v. Lewis, 976 F.3d 787,
794 (8th Cir. 2020). “The conspiracy’s existence may be proved by direct or
circumstantial evidence.” United States v. Cain, 487 F.3d 1108, 1111 (8th Cir. 2007)
(quoting United States v. Sanchez-Garcia, 461 F.3d 939, 945 (8th Cir. 2006)).
Milk contends that there was insufficient evidence of his participation in a
conspiracy to distribute methamphetamine in part because the government failed to
present “objective evidence,” such as a controlled buy, at trial. But “evidence at trial
that consists primarily of testimony from other members of the conspiracy may
suffice to establish [a] defendant’s guilt.” United States v. Conway, 754 F.3d 580,
587 (8th Cir. 2014). The evidence demonstrated that Milk was the link between
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methamphetamine sourced from California and a network of distributors in South
Dakota and that he recruited others to distribute drugs for him, thereby intentionally
joining the conspiracy. See id. at 588 (“When evidence exists that large amounts of
drugs were distributed over an extended period of time, including fronting
transactions, there is ample evidence to support a conspiracy.”).
Milk questions the credibility of most witnesses who testified, but we defer to
the jury’s assessment of witness credibility and will not reweigh the evidence or the
credibility of the government’s witnesses. See United States v. Moya, 690 F.3d 944,
950 (8th Cir. 2012); United States v. Taylor, 813 F.3d 1139, 1147 (8th Cir. 2016).
Viewing the evidence in the light most favorable to the verdict, it was sufficient to
allow a jury to find beyond a reasonable doubt that there was a conspiracy between
Milk and others to distribute methamphetamine in the amounts charged, that Milk
knew about the conspiracy, and that he intentionally joined it.
2.
To support a conviction for possession of a firearm as a convicted felon, the
government must establish that (1) Milk had been previously convicted of a crime
punishable by a term of imprisonment exceeding one year; (2) Milk knowingly
possessed a firearm; (3) the firearm was in or affecting interstate commerce; and
(4) Milk knew he belonged to the relevant category of persons barred from
possessing a firearm. United States v. McKee, 42 F.4th 910, 913 (8th Cir. 2022).
Milk challenges only the second element, arguing that the government failed
to prove he knowingly possessed the firearm found in the Pontiac when he was
arrested on August 17. This element may be satisfied by proof of actual or
constructive possession. United States v. Green, 835 F.3d 844, 852 (8th Cir. 2016).
“To show constructive possession, the government must prove that the defendant
had dominion over the premises where the firearm was located, or control,
ownership, or dominion over the firearm itself.” United States v. Parsons, 946 F.3d
1011, 1014 (8th Cir. 2020) (cleaned up) (quoting United States v. Maxwell, 363 F.3d
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815, 818 (8th Cir. 2004)). “Mere physical proximity to a firearm is not enough to
show constructive possession, but knowledge of a firearm’s presence, combined
with control is constructive possession.” United States v. Battle, 774 F.3d 504, 511
(8th Cir. 2014) (alterations omitted) (quoting United States v. Mann, 701 F.3d 274304–05) (8th Cir. 2014)).
The government presented evidence that Milk had dominion over the Pontiac,
where the firearm was found. The testimony at trial showed that Milk borrowed the
car from another man, who emptied and cleaned out the vehicle before loaning it to
Milk. Milk’s personal items, including at least one purchase receipt, were found
inside the vehicle. The government also presented evidence that Milk had
knowledge of the firearm. The gun was recovered from inside a red drawstring bag
in the Pontiac, and surveillance footage showed Milk leaving a Walmart carrying
the same distinctive red bag one hour before the Pontiac was stopped. Deputy
Carlson also testified that, although the red drawstring bag was found on the floor of
the front passenger side while Milk sat in the rear passenger side, he saw the
occupants of the vehicle move around after he initiated his traffic stop, suggesting
the occupants may have rearranged themselves or their belongings. Finally, the
government presented evidence that Milk on occasion traded methamphetamine for
guns. Under these facts, a jury could conclude beyond a reasonable doubt that Milk
knowingly possessed the firearm as charged.
3.
Turning to Milk’s charge for obstruction of justice, 18 U.S.C. § 1503 prohibits
persons from “endeavor[ing] to influence, obstruct, or impede[] the due
administration of justice.” 18 U.S.C. § 1503(a). To sustain a conviction under
§ 1503, the government must show that Milk’s “endeavor” had the “natural and
probable effect of interfering with the due administration of justice.” United States
v. Aguilar, 515 U.S. 593, 599 (1995) (quotations and citations omitted); see also
United States v. Beale, 620 F.3d 856, 865 (8th Cir. 2010) (“A conviction under
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1503(a) requires proof of a sufficient nexus between each defendant’s actions and
an intent to impede judicial proceedings.”).
Milk argues the evidence is insufficient to support the verdict because the
government failed to establish that anyone was intimidated by his alleged obstructive
conduct or that his actions caused a witness to testify falsely. But to convict under
§ 1503, the government need not demonstrate that justice was in fact obstructed. See
Aguilar, 515 U.S. at 599 (“[T]he defendant’s actions need [not] be successful; an
‘endeavor’ suffices.”). Rather, the government sufficiently established that Milk,
with knowledge of the pending proceedings, sent multiple notes to Brewer
demanding that he “fabricate” a new “story” or recant his previous statements to law
enforcement before Milk’s trial. Milk maintains that there was no evidence he was
the author of these notes, but their contents included references, language, and other
facts specific to Milk and Brewer. Viewing this evidence in the light most favorable
to the verdict, a rational jury could have found Milk guilty of this charge beyond a
reasonable doubt.
H.
Finally, we address the challenges to the calculation of Milk’s Guidelines
range. We review the district court’s interpretation and application of the Guidelines
de novo, and we review findings of fact for clear error. See Lewis, 976 F.3d at 797.
1.
The district court applied a two-level enhancement pursuant to United States
Sentencing Guidelines § 2D1.1(b)(12) (2021), finding that Milk “maintained a
premises for the purpose of manufacturing or distributing a controlled substance,”
specifically, the Turtle Creek residence. For the enhancement to apply, drug
manufacturing or distribution must be among the primary or principal uses for the
premises, but these “need not be the sole purpose for which the premises was
maintained.” United States v. Hernandez Lopez, 24 F.4th 1205, 1208 (8th Cir.
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2022). Among the factors a court considers in determining whether a defendant
“maintained” a premises for drug distribution are (a) whether the defendant owned
or rented the premises, and (b) the extent to which he or she “controlled access to,
or activities at, the premises.” USSG § 2D1.1, comment. (n.17).
Milk’s only argument is that he did not own, reside at, or control access to the
Turtle Creek house. Although Milk did not own the house, the evidence established
that he lived there for a few months and paid rent for the property, which he
sometimes paid with methamphetamine. The evidence also showed that Milk
exercised control over the house, including who lived at Turtle Creek and the nature
of the drug trafficking that took place there. We discern no clear error in the district
court’s findings, which support the application of the two-level enhancement under
§ 2D1.1(b)(12).
2.
Finally, Milk argues that the district court clearly erred in calculating the drug
quantity for purposes of establishing his base offense level. When calculating drug
quantity in a conspiracy case, the district court may consider “drug quantities
attributable directly to the defendant as well as quantities attributable to the
reasonably foreseeable actions of others taken to further the conspiracy.” United
States v. Young, 689 F.3d 941, 945 (8th Cir. 2012); see also United States v.
Washington, 968 F.3d 860, 865 (8th Cir. 2020). Where, as here, there is “no drug
seizure or the amount seized does not reflect the scale of the offense,” the district
court “shall approximate the quantity of the controlled substance.” Young, 689 F.3d
at 945 (quoting United States v. Pugh, 25 F.3d 669, 677 (8th Cir. 1994)). The district
court’s approximation may be “based on imprecise evidence so long as the record
reflects a basis for the court’s decision.” United States v. Yellow Horse, 774 F.3d
493, 497 (8th Cir. 2014) (quoting United States v. Roach, 164 F.3d 403, 413–14 (8th
Cir. 1998)).
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Milk contends the drug quantity attributed to him was based solely on
“arbitrary estimations” and “speculation.” But the district court’s findings of drug
quantities were supported by the evidence. Multiple witnesses testified consistently
about the amount of methamphetamine they received from Milk or that they
personally observed him with. And because Frank, Brewer, Poor Bear, and others
were members of the same conspiracy, the court permissibly attributed the quantities
they distributed over the course of the conspiracy to Milk in the sentencing
calculation. Some of the evidence presented at trial regarding quantity was
admittedly imprecise. But the government substantiated this evidence with expert
testimony from Special Agent Dan Cooper, who approximated the weight of the
methamphetamine based on testimony elicited from other witnesses at trial. The
district court did not clearly err in its quantity determination.
III.
Based on the foregoing, we affirm the judgment of the district court.
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