U.S. v. Zimmer

Decision Date25 July 2002
Docket NumberNo. 01-1502.,No. 01-1506.,No. 01-1100.,01-1100.,01-1502.,01-1506.
Citation299 F.3d 710
PartiesUNITED STATES of America, Appellee, v. Michael Jerome ZIMMER, Appellant. United States of America, Appellee, v. James Clarence Stoltz, Appellant. United States of America, Appellee, v. Aaron Dale Carver, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Andrew S. Birrell, argued, Minneapolis, MN (R. Travis Snider, Minneapolis, MN, on the brief), for appellant Zimmer.

Jerrod M. Smith, argued, Minneapolis, MN, for appellant Stoltz.

Deborah Kay Ellis, argued, St. Paul, MN, for appellant Carver.

Rabea Jamal Zayed, Asst. U.S. Attorney, argued, Minneapolis, MN, for appellee.

Before McMILLIAN, BEAM, and HANSEN,1 Circuit Judges.

HANSEN, Circuit Judge.

The appellants in this case are three of seventeen persons indicted for activity arising out of and relating to a methamphetamine manufacturing ring operating primarily out of Princeton, Minnesota. In the case of these particular defendants, the government filed a two-count indictment charging Aaron Carver, Sean Chandler, James Stoltz, Kurt Sandberg, and Andre Baumgartner with conspiracy to manufacture, distribute, and possess with intent to distribute methamphetamine from October 1996 through March 1998. The second count charged Carver with being a felon in possession of a firearm. Chandler and Sandberg pleaded guilty to the first count and agreed to testify in the government's case against the remaining defendants. The government then filed a superseding indictment recharging Carver, Stoltz, and Baumgartner, and adding Michael Zimmer and David May as defendants. Baumgartner and May pleaded guilty to the conspiracy charge and testified in the government's case against the remaining defendants.

After a jury trial, Zimmer and Stoltz were convicted of conspiring to manufacture, distribute, and possess with intent to distribute in excess of 500 grams of methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1). Carver was convicted of conspiracy to manufacture, distribute, and possess with intent to distribute methamphetamine and of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On appeal, Stoltz raises numerous challenges to both his conviction and his sentence. Zimmer and Carver challenge their sentences but not their convictions. We affirm the judgments of the district court.2

I.

Zimmer and Carver met in 1996 when they both were incarcerated at the same facility in the State of Washington. Zimmer learned that Carver was skilled in using the red phosphorous method of manufacturing methamphetamine and recognized that he could use Carver's skill to make some money. Zimmer contacted his long-time friend, James Stoltz, who at that time owned a concrete business in Princeton, Minnesota, and told him about Carver's skill. Zimmer suggested that Stoltz pay for Carver to move to Minnesota upon Carver's release from prison. The three men reached an agreement whereby Stoltz would pay for Carver to move to Minnesota, Stoltz would provide Carver a residence and a vehicle upon his arrival, Carver would manufacture and distribute methamphetamine, and the three men would then share the proceeds generated from their illegal activity. There was testimony at trial that Zimmer was to receive between ten and thirty percent of the proceeds for initiating and organizing the operation.

Carver was released from the Washington facility in August 1996 and traveled to Minnesota. As they had agreed, Stoltz provided Carver with a Pontiac Firebird and allowed Carver to stay in a trailer on Stoltz's property. Carver began to manufacture and distribute methamphetamine from Stoltz's trailer. He was the primary producer, or "cook," during the course of this operation. As the conspiracy progressed, others, many of whom had worked for Stoltz at one point or another, became involved, including May, Sandberg, Chandler, and Baumgartner. On one occasion, Carver and John Stoltz, James's brother, created an instructional videotape that others could watch to learn how to cook methamphetamine. The conspirators continued to manufacture methamphetamine through March 1998.

Although Zimmer was incarcerated at the Washington State facility for some of the time during which the aforementioned activities were occurring, he and Carver and Stoltz maintained correspondence. Much of their communication was related to furthering the conspiracy. For example, Carver originally employed the red phosphorous method of cooking methamphetamine, which entailed combining ephedrine, phosphorous, iodine, and water over a heat source to catalyze the ingredients and produce methamphetamine. The conspirators later switched their manufacturing process after Stoltz received a letter from Zimmer describing the more productive "Nazi dope" or lithium method of producing methamphetamine. The lithium method also required the use of ephedrine or pseudoephedrine as a precursor drug but substituted lithium and anhydrous ammonia for phosphorous and iodine as reactive agents. At the time Zimmer sent the recipe, the lithium method of creating methamphetamine was little used in the Midwest, existing primarily on the west coast. The lithium method permitted the group to produce more final product than the red phosphorous method given the same amount of precursor drugs, i.e., the lithium method was a more efficient process that allowed the organization to increase production.

On March 3, 1997, a Princeton police officer on routine patrol observed Carver's vehicle near a storage unit in an industrial park. The officer noticed that the vehicle had a broken taillight. The officer trailed Carver and attempted to pull him over after he failed to stop at a stop sign. Carver sped away, and a high speed chase ensued — lasting almost thirty minutes and reaching speeds of over one hundred miles per hour. The chase ended when Carver lost control of his vehicle and drove his car into a ditch. The officers arrested Carver and searched his vehicle. Inside the vehicle, the officers found the shell of a lithium battery, other methamphetamine manufacturing paraphernalia, an electronic scale covered with methamphetamine residue, and one spent and one live round of 9 millimeter ammunition. Carver was charged by the State of Minnesota with possession of methamphetamine but was released on $10,000 cash bail, $5000 of which Stoltz paid. Carver then temporarily fled Minnesota and failed to appear for any further court appearances relating to the state drug charges.

The police continued their investigation and obtained a search warrant for the storage unit where the officer had first observed Carver. They seized numerous items consistent with methamphetamine production, a Mossberg Model 500A 12-gauge shotgun with pistol grip, and a Cobray Model Mac 11-9 millimeter assault pistol. The police also seized Western Union money order receipts, a box containing correspondence between Zimmer and Carver, and the instructional videotapes made by Carver and John Stoltz. One of the letters from Zimmer to Carver read, "Write and let me know the latest adventures of Jim [Stoltz] and Aaron [Carver] enterprises." The officers continued to follow leads, and they obtained the consent of Carver's girlfriend to search her car. Inside her vehicle the police found several photographs of Carver holding various weapons, including a Cobray Model Mac 11-9 millimeter assault pistol.

On March 7, 1997, officers executed a search warrant at the trailer in which Stoltz allowed Carver to live. Most of the furniture and evidence that the officers had expected to find was missing, and the trailer was largely empty. Stoltz had been forewarned of the impending search, and he had contacted Baumgartner and asked him to remove everything from the trailer before the police arrived. Baumgartner complied. He and two others went to the trailer in the middle of the night before the police arrived and removed the furniture, a gun safe, and any evidence of methamphetamine manufacturing. The officers did discover, however, a trap door in the front bedroom which led to a hand-dug hole approximately nine feet by nine feet by seven feet deep lined with plastic. In the hole the officers found plant containers, a grow light, plant food, and lithium battery casings.

Later, during the summer, the Mille Lacs County Sheriff's office received an anonymous telephone call stating that Carver had recently been seen at Stoltz's residence. Because there was still a warrant out for Carver's arrest, officers were dispatched to Stoltz's residence to capture him. When they arrived at the Stoltz residence, Carver fled into the surrounding woods. The officers gave chase, but Carver managed to escape. While searching for Carver in the wooded area around Stoltz's residence, the officers discovered marijuana plants growing in five gallon buckets. The officers returned to the residence and questioned Stoltz. The officers then obtained and executed a search warrant at Stoltz's residence. They seized items consistent with narcotics trafficking and manufacturing methamphetamine, including one gallon of Toluene, three gallons of Toluol, three gallons of muriatic acid, ammonia, seven glass pipes containing trace amounts of methamphetamine, a marijuana cigarette, and twenty-two marijuana plants.

While Carver was on the run, his coconspirators continued to manufacture and distribute methamphetamine until he and the other members of the conspiracy were captured. On April 9, 1999, a confidential informant sighted Carver in Pierce County, Washington. Following a tip, the police found Carver at the residence of his cousin, Jerry Kohl. The authorities surrounded the residence, but Carver refused to emerge from the garage of the house. A SWAT team fired gas into the garage, hoping to force Carver from...

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