United States v. Tony J. Byler

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No. 96-1762
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Tony J. Byler, *
*
Appellant. *
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Submitted: September 10, 1996
Filed: October 21, 1996
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Before MAGILL, FLOYD R. GIBSON, and MORRIS SHEPPARD ARNOLD, Circuit
Judges.
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MAGILL, Circuit Judge.
The defendant, Tony J. Byler, appeals from his conviction of
conspiracy to distribute methamphetamine (count I), attempt to possess with
intent to distribute methamphetamine (count II), and use of a firearm
during drug trafficking crimes (count III), in violation of 21 U.S.C. §§
841(a)(1), 843(b), 846, and 18 U.S.C. §§ 2, 924(c). The defendant argues
that the district court1: (1) committed reversible error in admitting
postarrest hearsay; (2) incorrectly calculated drug quantity; and (3)
committed reversible trial error. We disagree and accordingly affirm.
1
The Honorable Russell G. Clark, United States District
Judge for the Western District of Missouri.
I.
A.
The government's case against the defendant was based largely on the
testimony of codefendant Kenneth F. Wishon. At trial, Wishon testified
that he delivered two pounds of methamphetamine to the defendant sometime
in April 1995. Wishon also testified that the defendant paid him $20,000
at that meeting.
According to Wishon, the $20,000 was for methamphetamine that Wishon
had previously delivered to the defendant's twin brother, Kevin Byler, and
to one of Kevin's associates. The payment therefore was not for the two
pounds of methamphetamine delivered at the April meeting. The defendant
instead took the April delivery on a credit basis, agreeing to pay later
when Wishon made his next delivery.
About two months later, on June 8, 1995, Wishon was pulled over by
police and arrested on his way to delivering two packages of
methamphetamine to the defendant. In Wishon's car were three packages of
d-methamphetamine of varying purity levels. Each package weighed a little
2
less than a pound.
After Wishon agreed to cooperate, the police allowed him to continue
with his delivery. The police attached a listening device to Wishon and
followed closely behind as he proceeded to the defendant's house.
When Wishon arrived at the defendant's house, he asked if the
defendant had the payment for the April delivery. The defendant
2
The respective weight and purity levels of the three
packages were as follows: 374.4 grams at 40%, 404.9 grams at 33%,
and 384.3 at 28%.
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responded affirmatively. Then, Gary Crouch, who was also at the
defendant's house when Wishon arrived, asked Wishon if he wanted a soda
pop. Wishon declined the offer. Crouch, however, insisted that Wishon
take a six-pack of soda, and Wishon eventually accepted the six-pack.
The defendant then suggested that the meeting be reconvened at a
nearby Hardee's restaurant, but the defendant never showed up to meet him.
Wishon therefore returned to the defendant's house. Once there, he again
asked to be paid for the April delivery. The defendant responded that the
money was in the six-pack, which Wishon had earlier placed in his car after
accepting it from Crouch. Wishon returned to his car where he found
$20,000 concealed in the six-pack. Before he could deliver the
methamphetamine, the police raided the defendant's house.
The police found the defendant holding a loaded revolver in his right
hand. Upon arresting him, the police also seized a second loaded handgun
from the defendant's left rear pants pocket.
B.
At trial, officer Michael Cooper testified at some length regarding
postarrest statements made by Wishon. The defendant objected several times
to this testimony but was overruled each time. The district court then
reconsidered its decision and struck the testimony. The court also
instructed the jury to disregard the testimony and then polled the jury to
insure that each juror would be able to disregard the testimony. Each
juror responded affirmatively.
The defendant also moved for a mistrial on the ground that this
testimony was inadmissible hearsay. Conceding that it had erred and
expressing some misgivings about the efficacy of its curative instruction,
the district court nonetheless denied the
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motion for a mistrial. With the jury absent, the court reasoned "[t]he
evidence at this point is overwhelming relative to Defendant Byler, that
he was a member of the conspiracy," II Trial Tr. at 317, and therefore
decided to proceed with the trial.
Later in the trial, the defendant objected to the district court's
decision to reject jury instructions proffered by the defendant. Based on
the instructions that were given by the district court, the jury returned
a guilty verdict.
At sentencing, the district court followed the presentence
investigation report and found that the defendant had delivered three
pounds of methamphetamine in April 1995, despite Wishon's testimony at
trial that he had delivered only two pounds in April. Based on this
finding, the district court calculated the defendant's base offense level
to be 34. The district court also found that the defendant's record placed
him in criminal history category III. In accordance with the Sentencing
Guidelines, the district court sentenced the defendant to two concurrent
terms of imprisonment of 188 months for counts I and II of the indictment,
and a consecutive term of 60 months of imprisonment for count III.
II.
The defendant argues that the district court committed reversible
error by allowing officer Cooper to testify at some length to Wishon's
postarrest statements. The defendant contends that this testimony was
inadmissible hearsay because Wishon's postarrest statements could not have
been made in furtherance of the conspiracy. See Fed. R. Evid.
801(d)(2)(E); see also United States v. Carper, 942 F.2d 1298, 1301 (8th
Cir.) (testimony of police officer regarding postarrest statements made by
codefendant was inadmissible hearsay), cert. denied, 502 U.S. 993 (1991).
We will not reverse a conviction on the basis of erroneously
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admitted hearsay testimony if the error was harmless. See Carper, 942 F.2d
at 1301-02; see also United States v. Escobar, 50 F.3d 1414, 1423 n.6 (8th
Cir. 1995). To determine if an evidentiary error was harmless, we must
review the entire record. United States v. Mitchell, 31 F.3d 628, 632 (8th
Cir. 1994). If we find "that no substantial rights of the defendant were
affected, and that the error had no, or only slight, influence on the
verdict[,]" then the error was harmless. Id.
After reviewing the entire record, we conclude that this standard has
been met. We reach this conclusion because the district court took strong
and effective corrective actions to minimize any prejudicial effect caused
by officer Cooper's testimony before proceeding with the trial.
Ordinarily, an instruction to the jury to disregard hearsay testimony
can cure the prejudicial effect caused by the erroneous admission of such
evidence. See United States v. Maza, 93 F.3d 1390, 1397 (8th Cir. 1996);
United States v. Nelson, 984 F.2d 894, 897 (8th Cir.), cert. denied, 508
U.S. 966 (1993). Moreover, we have recognized that a district court has
broad discretion in determining whether allegedly prejudicial testimony has
tainted a trial to such an extent as to require a mistrial. See Maza, 93
F.3d at 1397.
Here, the district court struck officer Cooper's testimony regarding
Wishon's postarrest statements and carefully instructed the jury to
disregard that testimony. Moreover, the district court polled the jurors
to insure both that they understood and could comply with the instruction.
Finally, the district court exercised its discretion in light of the
overwhelming evidence against the defendant and chose to proceed with
trial, denying the defendant's motion for a mistrial. We therefore find
no reversible error because any error in allowing officer Cooper's
testimony regarding Wishon's postarrest statements was harmless.
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III.
The defendant next argues that the district court incorrectly
calculated the drug quantity used in applying the Sentencing Guidelines.
The defendant contends that the district court incorrectly found that the
defendant received three pounds of methamphetamine compound in April,
despite the fact that Wishon, who offered the only testimony as to this
delivery, testified at trial that only two pounds were delivered.
Notwithstanding this inconsistency, we find no reversible error.
To include the April delivery in the drug quantity calculated for
sentencing, the government first needed to prove by a preponderance of the
evidence that the delivery in fact occurred. See United States v. Campos,
87 F.3d 261, 263 (8th Cir. 1996); United States v. Stavig, 80 F.3d 1241,
1245 (8th Cir. 1996). Moreover, the finding of drug quantity is a finding
of fact reviewed only for clear error. Stavig, 80 F.3d at 1245. Based on
the direct testimony of Wishon, it was not clearly erroneous for the
district court to find that the defendant took delivery of methamphetamine
in April.
The government also needed to prove by a preponderance of the
evidence the quantity of methamphetamine delivered to the defendant in
April. See United States v. Simmons, 964 F.2d 763, 771 (8th Cir.) ("[A]t
the sentencing phase, . . . the government must generally satisfy a
preponderance of the evidence standard."), cert. denied, 506 U.S. 1011
(1992). Wishon's testimony established by a preponderance of the evidence
that only two, not three, pounds of methamphetamine were delivered to the
defendant in April. We therefore agree with the defendant that the
district court erred in its finding that three pounds were delivered in
April. This error was harmless, however, because the defendant was
nevertheless correctly sentenced at a base offense level of 34.
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For a delivery of methamphetamine compound rather than pure
methamphetamine, we are required to "use the offense level determined by
the entire weight of the mixture or substance, or the offense level
determined by the weight of the . . . methamphetamine (actual), whichever
is greater." U.S.S.G. § 2D1.1(c), note B; see also United States v.
Newton, 31 F.3d 611, 614 (8th Cir. 1994). We must therefore calculate both
the entire weight of the mixture and the weight of the actual
methamphetamine and then take the one that gives the higher offense level.
Here, the entire weight of the mixture was (1) the two pounds of
methamphetamine delivered in April and (2) the two lightest packages of
methamphetamine in Wishon's car at the time of the defendant's arrest.3
Combined, these deliveries come to approximately 1.67 kilograms, which
constitutes a base offense level of 32. See U.S.S.G. § 2D1.1(c)(4).
The defendant argues that we should stop here. However, in
accordance with the Sentencing Guidelines, we must also determine the
quantity of actual methamphetamine delivered to the defendant. To do so,
we must multiply the purity level of the methamphetamine compound by its
gross weight. Cf. U.S.S.G. § 2D1.1(c), note B; see also United States v.
Bogusz, 43 F.3d 82, 87 (3d Cir. 1994) ("[M]ethamphetamine (actual) refers
to the net amount of methamphetamine hydrochloride after all impurities,
waste, byproducts, or cutting agents are removed."), cert. denied, 115 S.
Ct. 1812 (1995).
Although the April delivery was never recovered, the Sentencing
Guidelines provide that unrecovered quantities can be
3
The defendant does not dispute the inclusion of the June
delivery in the calculation of drug quantity for sentencing
purposes. We also note that, given the evidence presented by the
government, it was not clearly erroneous for the district court
to include the June delivery in its calculation.
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estimated from similar known transactions. See U.S.S.G. § 2D1.1, comment.
(n.12) ("Where there is no drug seizure . . . , the court shall approximate
the quantity of the controlled substance. In making this determination,
the court may consider . . . similar transactions in controlled substances
by the defendant . . . ."). This court has held that purity levels can
also be estimated in this way. Newton, 31 F.3d at 614.
Here, based on Wishon's testimony, it was not clearly erroneous for
the district court to follow the presentence investigation report and
conclude that the April and June deliveries involved similar purity levels.
As Wishon testified, each transaction involved a purchase of approximately
two pounds of methamphetamine compound for $20,000, suggesting that the
methamphetamine delivered on each of those occasions was of roughly
comparable purity levels. Accordingly, it was not clearly erroneous for
the district court to find that the April delivery had a purity level of
28%, which was the purity level of the least pure package of
methamphetamine recovered from Wishon's car on June 8, 1995.
Thus, multiplying the two pounds of methamphetamine compound
delivered to the defendant in April by its estimated purity level of 28%
yields 254.0 grams of actual methamphetamine. We then add this amount to
the quantity of actual methamphetamine in the two packages seized from
Wishon's car that contained the least amount of actual methamphetamine.
Doing so gives us a total of 495.2 grams of actual methamphetamine, which
translates into a base offense level of 34. See U.S.S.G. § 2D1.1(c)(3).
Therefore, taking the higher of the two offense levels as dictated by
U.S.S.G. § 2D1.1(c), note B, the defendant's base offense level remains
unchanged at 34, even with a finding that only two, not three, pounds of
methamphetamine compound were delivered in April.
Any error that may have resulted from using three pounds for
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the April delivery was therefore harmless. See Williams v. United States,
503 U.S. 193, 203 (1992); United States v. Cron, 71 F.3d 312, 313-14 (8th
Cir. 1995). As the calculations above demonstrate, whether two or three
pounds were delivered in April does not change the defendant's base offense
level. Moreover, given his criminal history category of III, the defendant
was sentenced to the shortest possible term of imprisonment within the
range set by the Sentencing Guidelines for a base offense level of 34. As
a result, we conclude that a remand for resentencing is unnecessary.
IV.
The defendant contends that there was insufficient evidence to
convict him of the drug trafficking offenses with which he was charged.
The defendant also contends that the district court erred in refusing the
jury instructions that he proffered. After considering the record as a
whole, we find no merit to these claims. See 8th Cir. R. 47B.
V.
The judgment of the district court is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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