United States v. Sam Larsen

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-1495
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
Sam Larsen, also known as Sammy, *
*
Appellant. *
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Submitted: September 13, 2005
Filed: November 3, 2005
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Before ARNOLD, HANSEN, and MURPHY, Circuit Judges.
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ARNOLD, Circuit Judge.
Sam Larsen appeals his conviction for conspiracy to distribute a controlled
substance, see 21 U.S.C. §§ 841(a)(1), 846. Mr. Larsen assigns a number of errors
in his appeal, none of which has merit. We therefore affirm the judgment of the
district court.1
Mr. Larsen was convicted of conspiracy to distribute methamphetamine based
on testimony from police officers who set up a transaction with him and testimony
1
The Honorable John B. Jones, United States District Judge for the District of
South Dakota.
from other participants in his drug activities. The transaction that was set up involved
Mr. Larsen trading a motorcycle for cash and four ounces of methamphetamine.
Evidence of other drug activities by Mr. Larsen came from Darcy Sieve, Mr. Larsen's
main supplier of methamphetamine; from Val Donaldson, another customer of
Ms. Sieve's; and from Vy Syhavong, Ms. Sieve's main source of methamphetamine,
who sold to Mr. Larsen at least once.
When Minnesota police officers arrested Ms. Sieve for distributing
methamphetamine, she told them that Mr. Larsen was interested in trading a
motorcycle for methamphetamine and put Detective Troy Appel in touch with
Mr. Larsen. Detective Appel then set up a meeting with Mr. Larsen and transferred
$5,500 and four ounces of methamphetamine to him for a motorcycle. After handing
the money and drugs over to Mr. Larsen, officers allowed him to walk to his vehicle
and then arrested him. The money and drugs were discovered in Mr. Larsen's pickup
truck. Mr. Larsen was convicted in Minnesota state court as a result of this
transaction.
At trial, the government introduced evidence of other drug transactions by
Mr. Larsen. Ms. Sieve testified to having provided on credit, or "fronted,"
methamphetamine to Mr. Larsen about fifteen times, with the understanding that he
would sell the drugs in Sioux Falls, South Dakota, and use monies earned from those
sales to repay her. Another witness, Mr. Syhavong, testified that he fronted seven
ounces of methamphetamine to Mr. Larsen on one occasion. And according to
Ms. Donaldson's testimony, Ms. Sieve once met with her and Mr. Larsen and sold an
ounce of methamphetamine to each of them.
Mr. Larsen argues that his conviction should be overturned for insufficiency
of the evidence because Ms. Sieve's testimony was incredible as a matter of law since
she was not physically present when Mr. Larsen sold drugs to any of his customers.
"We review de novo the sufficiency of the evidence, viewing the evidence in the light
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most favorable to the verdict and upholding it if, based on all the evidence and all
reasonable inferences, any reasonable juror could find the defendant guilty beyond
a reasonable doubt." United States v. Simon, 376 F.3d 806, 808 (8th Cir. 2004).
Testimony can indeed be incredible as a matter of law, see United States v. Baker,
367 F.3d 790, 798 (8th Cir. 2004), but this is not the case here. Ms. Sieve testified
that when she rode along with Mr. Larsen in Sioux Falls, she doled out
methamphetamine for him to sell and he returned shortly afterward each time with
money to pay her. We believe that it is manifest that reasonable jurors could draw the
inference that Mr. Larsen was selling the methamphetamine to his customers, as the
circumstances suggest. Additionally, Ms. Sieve testified that on approximately
fifteen occasions she fronted Mr. Larsen an ounce of methamphetamine with the
understanding that he would sell it to his customers and pay her from the proceeds.
The sales involved amounts that were inconsistent with mere personal use.
Mr. Larsen's insufficiency of the evidence claim must therefore fail.
Mr. Larsen also asserts that his conviction should be overturned because it
violated the double jeopardy clause and the federal government's so-called Petite
policy. We review the denial of a motion to dismiss an indictment on double
jeopardy grounds de novo. See United States v. Johnson, 169 F.3d 1092, 1095 (8th
Cir. 1999), cert. denied, 528 U.S. 857 (1999). Unlike the case that Mr. Larsen relies
on, United States v. Belcher, 762 F. Supp 666, 670-71 (W.D. Va. 1991), which held
that a federal prosecution was a "sham and cover" for an unsuccessful state case
brought against the defendant by a prosecutor who represented both the state and
federal government in the same county, here the prosecutions were carried out by
different sovereigns and different individuals. The facts related to the motorcycle
trade, which formed the basis for Mr. Larsen's Minnesota conviction, were
subsequently tied to a conspiracy involving drug activity in South Dakota, providing
ample reason for federal authorities to step in. The federal government may conduct
such subsequent prosecutions because it is a different sovereign from the state.
United States v. Basile, 109 F.3d 1304, 1306-07 (8th Cir. 1997), cert. denied,
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522 U.S. 866 & 873 (1997). Mr. Larsen's conviction therefore did not violate the
double jeopardy clause.
The Petite policy, an internal policy of the Department of Justice, states that a
federal prosecution should not be based on substantially the same acts as were the
basis for a prior state prosecution unless there is a compelling federal interest.
Thompson v. United States, 448 U.S. 248, 248, 248-49 n.1 (1980) (per curiam) (citing
Petite v. United States, 361 U.S. 529, 531 (1960) (per curiam)). The policy, however,
confers no substantive rights on a criminal defendant, see United States v. Leathers,
354 F.3d 955, 962 & 962 n.5 (8th Cir. 2004), cert. denied, 125 U.S. 285 (2004), and
thus Mr. Larsen could obtain no relief based on it even if the government had acted
contrary to it here.
Mr. Larsen's assertion that a violation of the Petite policy combined with
outrageous government conduct constituted a denial of due process must fail as well.
Mr. Larsen moved to dismiss the indictment on grounds of outrageous government
conduct, but the district court denied the motion after Mr. Larsen presented no
evidence to support it. Since Mr. Larsen had the burden of proof on this matter, the
district court quite obviously acted correctly.
Mr. Larsen also contends that the district court failed to instruct the jury
properly. At trial, the court denied his request that the jury be instructed that it could
draw an adverse inference from the destruction of field notes documenting the
transaction between Detective Appel and Mr. Larsen if the destruction was intentional
and in bad faith. In addition to challenging this ruling, Mr. Larsen maintains for the
first time on appeal that the jury should have been similarly instructed with respect
to the destruction of telephone recordings and other records that Minnesota state
authorities had created. We review only for plain error the failure to give an
instruction that was not requested at trial, United States v. Thompson, 403 F.3d 533,
536 (8th Cir. 2005). But here there was no error, plain or otherwise: Mr. Larsen was
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not entitled to any of the instructions that he now maintains should have been given
because the record does not support an inference that the police acted improperly by
destroying any evidence. See United States v. Iron Eyes, 367 F.3d 781, 787 (8th Cir.
2004); see also Arizona v. Youngblood, 488 U.S. 51, 58 (1988).
Finally, Mr. Larsen argues that the district judge should have recused himself
under 28 U.S.C. § 144 due to comments that that judge had made when Mr. Larsen
appeared before him in 1995. See also 28 U.S.C. § 455. We review recusal decisions
for an abuse of discretion, United States v. Johnson, 47 F.3d 272, 276 (8th Cir. 1995).
Under Liteky v. United States, 510 U.S. 540, 555 (1994), "opinions formed by the
judge on the basis of facts introduced or events occurring in the course of ... prior
proceedings, do not constitute a basis for a bias or partiality motion unless they
display a deep-seated favoritism or antagonism that would make fair judgment
impossible." The district judge's statements in the prior proceeding against
Mr. Larsen dealt with the matter before the court at that time, and there was no
evidence that the district judge would have been unable to adjudicate Mr. Larsen's
current case fairly due to opinions that he formed and expressed ten years before. The
denial of Mr. Larsen's recusal motion was therefore not an abuse of discretion. See
United States v. Sypolt, 346 F.3d 838, 839-40 (8th Cir. 2003), cert. denied, 540 U.S.
1209 (2004). Because we have concluded that the relevant statute did not require the
district judge to recuse himself, Mr. Larsen cannot prevail on his related contention
that he was denied his due process right to an impartial judge, which claim must meet
a more rigorous standard of proof. See id. at 840.
We affirm the judgment of the district court for the reasons given.
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