U.S. v. Morton, 04-2548.

• Citation: 412 F.3d 901
• Decision Date: 17 June 2005
• Docket Number: No. 04-2549.,No. 04-2548.,04-2548.,04-2549.
• Parties: UNITED STATES of America, Appellee, v. Ralph Eugene MORTON, Appellant. United States of America, Appellee, v. Kenneth Lee Johnson, a.k.a. Kenneth Johnson, Jr., Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

412 F.3d 901

UNITED STATES of America, Appellee, v. Ralph Eugene MORTON, Appellant.

United States of America, Appellee, v. Kenneth Lee Johnson, a.k.a. Kenneth Johnson, Jr., Appellant.

No. 04-2548.

No. 04-2549.

United States Court of Appeals, Eighth Circuit.

Submitted: February 14, 2005.

Filed: June 17, 2005.

COPYRIGHT MATERIAL OMITTED

Counsel who presented argument on behalf of appellant Morton was John C. Brink of Minneapolis, MN; arguing for appellant Johnson was Keith M. Ellison of Minneapolis, MN.

Counsel who presented argument on behalf of the appellee was John F. Docherty, AUSA, of Minneapolis, MN.

Before MORRIS SHEPPARD ARNOLD, BOWMAN, and GRUENDER, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Ralph Morton appeals his conviction on one count of conspiracy to distribute five grams or more of cocaine base (crack cocaine), see 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846. He argues that the district court's jury instructions constructively amended the indictment under which he was charged, that there was insufficient evidence to support his conviction, that the prosecution engaged in misconduct, and that the district court erroneously restricted his counsel's cross-examination of a witness and his counsel's closing argument. We affirm.

Kenneth Johnson pleaded guilty to one count of conspiracy to distribute crack cocaine, see id., but appeals his sentence. He contends that the government breached the plea agreement by not moving pursuant to U.S.S.G. § 3E1.1(b) for a one-level reduction in his offense level. We vacate his sentence and remand for resentencing.

I.

A.

A grand jury charged Mr. Morton with conspiring with his wife (Marilyn Morton) and David Hyatt to distribute crack cocaine, although the government subsequently dismissed the charge against Ms. Morton after she pleaded guilty to another count in the same indictment. Messrs. Morton and Hyatt were tried together. At trial, the government argued that only Messrs. Morton and Hyatt conspired together. The jury convicted Mr. Morton but acquitted Mr. Hyatt.

Mr. Morton argues that, under the so-called rule of consistency, the acquittal of his only alleged co-conspirator requires reversal of his conspiracy conviction. See Turinetti v. United States, 2 F.2d 15, 17 (8th Cir.1924); cf. Cortis v. Kenney, 995 F.2d 838, 840 (8th Cir.1993). We believe, however, that this rule did not survive United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984), which held that "inconsistent verdicts on the same indictment as to the same defendant are unobjectionable," United States v. Fuller, 374 F.3d 617, 623 (8th Cir.2004), cert. denied, ___ U.S. ___, 125 S.Ct. 926, 160 L.Ed.2d 810 (2005). See United States v. Zuniga-Salinas, 952 F.2d 876, 877-78 (5th Cir.1992) (en banc); United States v. Bucuvalas, 909 F.2d 593, 597 (1st Cir. 1990); United States v. Mancari, 875 F.2d 103, 104 (7th Cir.1989).

Although Powell involved inconsistent verdicts on multiple counts as they pertained to a single defendant, the reasons that the Court gave to justify its decision apply equally to a conviction of one defendant that is inconsistent with a verdict of acquittal of another defendant on the same count. See Zuniga-Salinas, 952 F.2d at 877-78; Mancari, 875 F.2d at 104. Those reasons are the government's inability due to the double jeopardy clause to challenge acquittals that are inconsistent with convictions, the jury's inherent power to be lenient, the undesirable speculation that would result if jury verdicts were assessed for inconsistencies, and the protection otherwise afforded defendants against jury irrationality by courts' review of the sufficiency of the evidence. Powell, 469 U.S. at 65-67, 105 S.Ct. 471. We therefore reject Mr. Morton's argument as meritless.

B.

Mr. Morton also contends that the evidence was not sufficient to sustain his conviction. Only if no "interpretation of the evidence ... would allow a reasonable-minded jury to conclude guilt beyond a reasonable doubt" will we reverse a jury's verdict on the grounds of insufficient evidence. United States v. Galvan, 961 F.2d 738, 740-41 (8th Cir.1992). Mr. Morton argues that this standard of review does not apply to his case because the standard assumes a properly instructed jury and the district court improperly instructed the jury on the elements of conspiracy (an alleged error that we address below). But Mr. Morton conflates the convicting jury with the "reasonable-minded" jury. The standard of review we apply does not invoke the viewpoint of the jury that convicted Mr. Morton; instead, we ask whether an objective "reasonable-minded" jury could have convicted him on the evidence offered at trial. Whether the convicting jury was properly instructed therefore does not affect our review of the sufficiency of the evidence. See United States v. Bomski, 125 F.3d 1115, 1118 (7th Cir.1997), cert. denied, 522 U.S. 1098, 118 S.Ct. 898, 139 L.Ed.2d 883 (1998).

Our examination of the record reveals that the evidence introduced at trial was clearly sufficient to convict Mr. Morton of conspiring with Mr. Hyatt to distribute crack cocaine. An informant, intending to purchase two ounces of crack, went to Mr. Morton's home. There the informant and Mr. Morton agreed that Mr. Morton would take the informant's money for the purchase and would leave to obtain the crack cocaine; while Mr. Morton was gone, the informant would stay at the Mortons' home with Ms. Morton. Before Mr. Morton left, he called someone on the telephone and told his interlocutor "that he needed them two ballparks," presumably referring to the two ounces of crack cocaine that the informant wished to purchase. Mr. Morton then drove away in his Hyundai and returned in a Cadillac with Mr. Hyatt, who owned the Cadillac. Once back, Mr. Morton gave the informant a soda bottle, which had a secret compartment in which crack was hidden. After the informant admired the ingenuity of the soda bottle, Mr. Hyatt offered to sell it to the informant, who bought it. During the entire transaction, the informant carried a radio transmitter, which allowed his conversations with the Mortons and Mr. Hyatt to be recorded to the extent that they were audible. Also, a video camera captured the events that occurred outside of the Mortons' home within the camera's line of vision. After the sale to the informant was complete, Mr. Hyatt drove Mr. Morton to his parked Hyundai. Then Mr. Hyatt took his Cadillac to a garage, parked it, and drove away in Mr. Morton's Hyundai, which had followed the Cadillac to the garage. From all of this evidence, a reasonable jury could infer that Messrs. Hyatt and Morton "acted in concert to achieve a common goal ... or acted with a tacit understanding" and therefore conspired. United States v. Agofsky, 20 F.3d 866, 870 (8th Cir.1994) (internal citation omitted), cert. denied, 513 U.S. 909, 115 S.Ct. 280, 130 L.Ed.2d 196 (1994).

C.

Mr. Morton next contends that the district court's jury instructions added "unnamed persons" to the list of conspirators set out in the indictment and thereby constructively amended the indictment, which is reversible error per se. See United States v. Stuckey, 220 F.3d 976, 981 (8th Cir.2000). The indictment charged Mr. Morton with conspiring with Mr. Hyatt and Ms. Morton; the indictment did not include anyone else, named or unnamed, in the conspiracy. The district court, however, instructed the jury that Mr. Morton must have "reached an agreement or understanding with at least one other person" and that "[i]t makes no difference whether that person . . . is named in the... indictment, excluding the government agent."

To constitute a constructive amendment of an indictment, jury instructions must have "modif[ied] the essential elements of the offense charged so that a substantial likelihood exists that the defendant was convicted of an offense other than that charged in the indictment." United States v. Johnson, 934 F.2d 936, 941 (8th Cir.1991). The existence of parties with whom the defendant reached an agreement or understanding is an essential actus reus element of conspiracy, see United States v. Fitz, 317 F.3d 878, 881 (8th Cir.2003); United States v. Hoelscher, 764 F.2d 491, 494 (8th Cir.1985), and the district court's jury instruction modified this element by permitting the jury to find that Mr. Morton had conspired with an unnamed person (or unnamed persons) when the indictment charged that he had conspired only with two named persons. The likelihood that the jury convicted Mr. Morton of conspiring with anyone other than Mr. Hyatt or Ms. Morton, however, is not substantial. The government maintained at trial that Mr. Morton conspired only with Mr. Hyatt. Cf. United States v. Bryant, 349 F.3d 1093, 1097 (8th Cir.2003); United States v. Novak, 217 F.3d 566, 575 (8th Cir.2000), cert. denied, 531 U.S. 1043, 121 S.Ct. 640, 148 L.Ed.2d 546 (2000). Indeed, during closing argument the government asserted that, when Mr. Morton requested "them two ballparks" during a phone call with an unidentified interlocutor, the interlocutor was Mr. Hyatt. Besides this phone conversation, the record contains no evidence of an interaction between Mr. Morton and any person not named in the indictment that could be construed as evidence of a conspiracy. Further, the district court instructed the jury that Mr. Morton was "not on trial for any act or conduct not alleged in the ... indictment." Cf. United States v. Pinque, 234 F.3d 374, 377 (8th Cir.2000), cert. denied, 532 U.S. 1044, 121 S.Ct. 2012, 149 L.Ed.2d 1013 (2001). This instruction, combined with the government's arguments at trial regarding the conspiracy's scope, prevented the reference in another instruction to unnamed persons from constructively amending the indictment.

D.

In Mr. Morton's last assignments of error, he contests the district court's denial of his motion to dismiss the indictment for prosecutorial misconduct and the limits that the district...