U.S. v. Stiger

• Decision Date: 30 June 2005
• Docket Number: No. 03-5043.,03-5043.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Wayne STIGER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

413 F.3d 1185

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Wayne STIGER, Defendant-Appellant.

No. 03-5043.

United States Court of Appeals, Tenth Circuit.

June 30, 2005.

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Susan G. James, Law Office of Susan G. James & Associates, Montgomery, AL, appearing for Appellant.

Kevin C. Danielson, Assistant United States Attorney (David E. O'Meilia, United States Attorney, with him on the brief), Office of the United States Attorney, Tulsa, OK, appearing for Appellee.

Before TACHA, Chief Circuit Judge, EBEL and HARTZ, Circuit Judges.

TACHA, Chief Circuit Judge.

This is an opinion on a petition for rehearing, which raised several issues for our reconsideration. We granted the petition only with respect to alleged sentencing errors under United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which was decided after our initial opinion. We therefore withdraw our earlier opinion, United States v. Stiger, 371 F.3d 732 (10th Cir.2004) ("Stiger I"), and substitute this opinion.

A jury found Defendant-Appellant Kenneth Wayne Stiger guilty of numerous counts of conspiring to possess and distribute narcotics. On appeal, he alleges seven grounds for us to find reversible error: (1) use of defective verdict forms; (2) a violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), as well as Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Booker; (3) insufficiency of the evidence; (4) improper denial of his mistrial motion; (5) refusal to try him separately from his codefendants; (6) admission of summary testimony and exhibits; and (7) a violation of the Speedy Trial Act, 18 U.S.C. § 3161 et seq. We take jurisdiction pursuant to 28 U.S.C. § 1291, AFFIRM in part, REVERSE in part, and REMAND.

I. BACKGROUND

This appeal represents the culmination of the government's investigation and prosecution of an extensive drug conspiracy. As the government proved at trial, the central player in the conspiracy was Darrell Bellamy of Phoenix, Arizona. From Phoenix, Mr. Bellamy coordinated shipments of powder cocaine, crack cocaine, and marijuana to various cities, including Tulsa, Oklahoma; Wichita, Kansas; and Detroit, Michigan.

At trial, several witnesses testified to Mr. Stiger's involvement in the conspiracy. Specifically, these witnesses testified to seeing Mr. Stiger prepare marijuana for shipping, arrange for and assist in the transportation of marijuana and cocaine, and transfer and instruct others to transfer large amounts of money to Mr. Bellamy.

In addition to these general activities, Jennifer Natale testified that Mr. Stiger assisted three others in torturing her. Specifically, she testified that, in response to a dispute over the proceeds from a drug sale, Mr. Bellamy, two men identified only as Marvin and Dash, and another identified only as "Crazy Will," forced her to remove her clothes below the waist and burned her repeatedly with a hot iron and with boiling grease. They also threatened to pour grease on her lap and face and to take her to the desert and shoot her. While the others tortured Ms. Natale, Mr. Stiger "held a gun at [her] head and he pushed it in [her] nose and he told [her] he was going to make it hurt."¹

A federal grand jury indicted Mr. Stiger for conspiring to possess and distribute cocaine, crack cocaine, and marijuana in violation of 21 U.S.C. § 846; conspiring to launder money in violation of 18 U.S.C. § 1956(h); and one count of forfeiture pursuant to 18 U.S.C. §§ 982 and 1956(h). After a twenty-three-day trial involving over fifty witnesses, a jury convicted Mr. Stiger on all counts. The District Court sentenced Mr. Stiger to life in prison to be followed by ten years' supervised release and imposed $25,200 in fines and assessments. Mr. Stiger filed timely notice of appeal, raising seven issues. We address each below.

II. DISCUSSION

A. Verdict Forms

1. Standard of Review

Mr. Stiger first argues that the verdict forms used at trial were defective. We review verdict forms under the same "abuse of discretion standard we apply to jury instructions." United States v. Jackson, 213 F.3d 1269, 1285 (10th Cir.), rev'd on other grounds, 531 U.S. 1033, 121 S.Ct. 621, 148 L.Ed.2d 531 (2000). "A district court does not abuse its discretion so long as the charge as a whole adequately states the law." United States v. Starnes, 109 F.3d 648, 651 (10th Cir.1997) (internal quotations omitted). To make this latter determination, we review de novo whether the charge as a whole "accurately informed the jury of the governing law." United States v. Cerrato-Reyes, 176 F.3d 1253, 1262 (10th Cir.1999).

Even if we conclude that the District Court erred, we must also determine whether the error is "harmless error." Fed.R.Crim.P. 52(a). The government bears the burden to show that a nonconstitutional error is harmless by a preponderance of the evidence. United States v. Wittgenstein, 163 F.3d 1164, 1169 (10th Cir.1998). An error "is harmless unless it had a `substantial influence' on the outcome or leaves one in `grave doubt' as to whether it had such effect." United States v. Cestnik, 36 F.3d 904, 910 (10th Cir. 1994).

2. Merits

Mr. Stiger contends that the verdict forms are defective because they did not require the jury to find him guilty of participating in the conspiracy before it decided his guilt as to the objects of the conspiracy. Because the forms used by the District Court only required a finding as to the objects of the conspiracy, Mr. Stiger argues, "[i]n the case at bar we do not even have a conviction on the conspiracy count." He therefore urges that the fundamental nature of this error mandates a new trial.

In response, the government claims that the verdict forms sufficiently informed the jury of the need to find Mr. Stiger guilty of the overarching conspiracy not just its objects. Noting that the jury "was given detailed instructions on the elements of the conspiracy charge and what it had to find in order to determine whether or not each defendant was guilty of conspiracy," the government contends that we should interpret the verdict form in light of the instructions given. Understood in this light, the government argues, the verdict forms accurately informed the jury of the law.

Despite the government's protestations, we agree with Mr. Stiger that the verdict forms never required the jury specifically to find him guilty of the overarching conspiracy.² Like Mr. Stiger, we read the verdict forms to require a finding only as to objects of the conspiracy.

Although we harbor grave doubts about the propriety of the use of these verdict forms, we need not decide whether their use constitutes error or whether the jury instructions cured any possible error because, even if we found error, the use of the verdict forms did not substantially influence the outcome of the trial. See United States v. Magleby, 241 F.3d 1306, 1318 (10th Cir.2001) ("Notwithstanding our doubts regarding the relevance of this testimony, we need not decide whether the district court abused its discretion in admitting it because we find that it was harmless error.").

The government carries its burden to establish harmlessness by pointing to the testimony of at least fourteen witnesses who offered testimony against Mr. Stiger. Several witnesses testified at length to his involvement in packaging and coordinating shipments of drugs for the conspiracy and in sending large amounts of money to Mr. Bellamy. We are especially persuaded by Ms. Natale's extensive and gruesome testimony regarding Mr. Stiger's involvement in her torture. As she made clear in her testimony, this torture was directly related to a dispute about the proceeds from a drug sale for the conspiracy. In light of this testimony, we find that the alleged verdict-form error did not substantially impact the outcome of the trial.³

B. Sentencing

1. Standard of Review

Mr. Stiger next argues that the District Court violated his Sixth Amendment rights by not requiring the jury to make a specific finding as to the amount of drugs for which he was personally responsible. Because Mr. Stiger made this constitutional argument at sentencing, we review the issue de novo. United States v. Lampley, 127 F.3d 1231, 1237 (10th Cir. 1997).

2. Merits

Below, the Government, in accordance with 21 U.S.C. § 851(a), notified Mr. Stiger that it would seek the application of 21 U.S.C. § 841(b)(1)(A). "Section 841(b)(1)(A) requires imposition of a `mandatory term of life imprisonment without release' if (1) a defendant is convicted of violating § 841(a), (2) that conviction involved a certain requisite amount of drugs, and (3) the crime was committed `after two or more prior convictions for a felony drug offense have become final.'" United States v. Harris, 369 F.3d 1157, 1167 (10th Cir. 2004). In this case, the jury found that the conspiracy as a whole violated 21 U.S.C. § 841(a)(1) by trafficking 5 or more kilograms of a substance containing cocaine, 1000 or more kilograms of a substance containing marijuana, and 50 grams of a substance containing crack cocaine. In addition, the amounts and types of drugs that the jury found attributable to the conspiracy as a whole are sufficient to satisfy the second prong of the § 841(b)(1)(A) mandatory life sentence requirement.

At sentencing, Mr. Stiger objected to the jury's finding as to drug type and amount for the entire conspiracy, arguing that Apprendi and now, Booker, require the jury also to make specific findings as to the amount and type of drug attributable to him individually.⁴ The District Court concluded that Apprendi does not require the jury in a conspiracy case to make individual findings as to each member of the conspiracy, determined Mr. Stiger was integral to the conspiracy and could be sentenced as though he were responsible for the full drug types and quantities, found that Mr....