U.S. v. Hodge

• Decision Date: 09 February 2010
• Docket Number: No. 09-1602.,09-1602.
• Citation: 594 F.3d 614
• Parties: UNITED STATES of America, Appellee, v. Bradley HODGE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

594 F.3d 614

UNITED STATES of America, Appellee, v. Bradley HODGE, Appellant.

No. 09-1602.

United States Court of Appeals, Eighth Circuit.

Submitted: December 18, 2009.

Filed: February 9, 2010.

Eric W. Butts, St. Louis, MO, for appellant.

Jeannette Suzanne Graviss, AUSA, St. Louis, MO, for appellee.

Before WOLLMAN, RILEY, and MELLOY, Circuit Judges.

WOLLMAN, Circuit Judge.

Bradley Hodge was convicted of three criminal counts related to a conspiracy to manufacture methamphetamine. The district court¹ sentenced him to three terms of 240 months' imprisonment, to run concurrently. Hodge appeals, arguing that the district court erred in denying his motion for judgment of acquittal and in determining his relevant conduct for the purposes of sentencing. We affirm.

I.

In mid-2008, detectives from St. Louis County, Missouri investigated pharmacy log books of pseudoephedrine purchases in the St. Louis area. The log books and the ensuing investigation revealed that Hodge and a number of associates were purchasing large quantities of pseudoephedrine for the purpose of manufacturing methamphetamine. Hodge was arrested on August 1, 2008, and charged with (1) conspiracy to possess pseudoephedrine, knowing and having reason to believe it would be used to manufacture methamphetamine; (2) possession of pseudoephedrine, knowing and having reason to believe it would be used to manufacture methamphetamine; and (3) conspiracy to manufacture and distribute more than fifty grams of methamphetamine.

At trial, the government presented the testimony of Detective Joseph Smith, Sergeant Jason Grellner, and Detective James Vargas. Smith testified about the investigation of Hodge and his associates, the purchases of pseudoephedrine by this group of individuals, and the discovery of a methamphetamine production site. Grellner testified about the process of manufacturing methamphetamine, typical usage of methamphetamine, the effect of methamphetamine on the body, and the pharmacy log books that showed the pseudoephedrine purchases by Hodge and his associates. Vargas testified about the discovery of methamphetamine production sites based upon information provided by Hodge's associates. During Smith's and Grellner's testimony, the government introduced certified copies of pharmacy log books that showed Hodge and his associates had purchased 489.36 grams of pseudoephedrine between May 2006 and March 2007. Hodge was in the custody of the Missouri Department of Corrections from April 20, 2007, to March 27, 2008. During this time, his associates purchased 685.8 grams of pseudoephedrine. After Hodge was released from jail, he purchased 47.52 grams of pseudoephedrine, and his co-conspirator, Christina Dittmaier, purchased 31.68 grams.

Dittmaier, Kim Mercer, and Scott Skaggs, all co-conspirators, testified that Hodge cooked methamphetamine for himself and others at multiple locations using pseudoephedrine pills provided by various individuals between 2006 and 2008.

The government also introduced letters that Hodge had written to Dittmaier while in jail. The letters, using drug argot, included discussions of manufacturing and using methamphetamine. Hodge explained his strategy for minimizing his criminal liability, which relied primarily on misleading the police, not cooperating, and going to trial. Hodge encouraged Dittmaier not to assist the government, writing, "I'm saying this as a good [S]amaritan. Don't testify against me. If you do ... and I am covering all my bases and trying to help you out, your credibility will be shot.... All right, baby girl, keep your head up and your mouth closed. I mean that." Tr. at 256-57.

Pursuant to Federal Rule of Evidence 404(b), the government introduced records of Hodge's previous convictions for methamphetamine related offenses. These records showed that in 2003 and 2004 Hodge had been convicted of possession of methamphetamine, possession of pseudoephedrine with intent to manufacture methamphetamine, and unlawful transportation of anhydrous ammonia, a methamphetamine manufacturing agent.

Following a three-day trial, the jury convicted Hodge on all three counts. The presentence investigation report (PSR) calculated a base offense level of 36, given that the amount of pseudoephedrine involved exceeded one kilogram. The PSR recommended a two-level enhancement, pursuant to U.S.S.G. § 3C1.1, note 4(a), because Hodge had intimidated or unlawfully influenced a co-defendant, bringing the total offense level to 38. With a criminal history category of V, Hodge's sentence range under the guidelines was from 360 months to life imprisonment.

The district court denied Hodge's objection to the two-level enhancement, which was based on the argument that his letters had been misconstrued. Hodge requested a downward departure, arguing that the guidelines range was too severe given his criminal history and the circumstances of his case; he proposed a sentence of 188 months. In considering the factors set forth in 18 U.S.C. § 3553(a), the district court noted that Hodge's associates had received much more lenient sentences than what Hodge faced under the guidelines. The court concluded that a sentence of "30 years [was] too severe" and sentenced Hodge to the concurrent 240 month sentences mentioned above.

II.

A.

Hodge argues that the district court erred in denying his motion for judgment of acquittal; he asserts that the government's evidence was insufficient to establish his guilt. We review de novo the district court's denial of a motion for a judgment of acquittal. United States v. Tyndall, 521 F.3d 877, 881 (8th Cir.2008), cert. denied, ___ U.S. ___, 129 S.Ct. 997, 173 L.Ed.2d 297 (2009). When considering a challenge to a conspiracy conviction based upon sufficiency of the evidence, "we will affirm if the record, viewed most favorably to the government, contains substantial evidence supporting the jury's verdict, which means evidence sufficient to prove the elements of the crime beyond a reasonable doubt." United States v. Lopez, 443 F.3d 1026, 1030 (8th Cir.2006) (en banc).

According to Hodge, the government's case was insufficient because there was no direct evidence of an agreement to manufacture methamphetamine. In a drug conspiracy case, however, the government is not required to present direct evidence of an explicit agreement; juries may rely upon circumstantial evidence to discern a tacit agreement or understanding between the co-conspirators. United States v. Coleman, 584 F.3d 1121, 1125 (8th Cir.2009). There was overwhelming evidence at trial of a conspiracy to manufacture methamphetamine. Multiple witnesses corroborated what the pharmacy logs suggested: Hodge and his associates purchased large quantities of pseudoephedrine in order to manufacture methamphetamine. Hodge's associates supplied him with the ingredients necessary for manufacturing methamphetamine, and he in turn distributed the finished product to his associates. The iteration of this scheme was sufficient to establish that there was an agreement or understanding between Hodge and his associates to manufacture methamphetamine and that Hodge knew of this agreement or understanding. United States v. Davis, 471 F.3d 938, 947-48 (8th Cir.2006) (finding a conspiracy to manufacture methamphetamine based upon the defendant's "voluntary acts").

Hodge also assails the credibility of the government's witnesses, arguing that (1) they gave inconsistent testimony, (2) they had an incentive to lie in order to reduce their sentences, and (3) they were unreliable because of their prior addiction to methamphetamine. A jury's credibility determinations are well-nigh unreviewable because the jury is in the best position to assess the credibility of witnesses and resolve inconsistent testimony. United States v. Cunningham, 83 F.3d 218, 222 (8th Cir.1996); United States v. Anderson, 78 F.3d 420, 423 (8th Cir.1996) ("As trier of fact, the jury ha[s] the best opportunity to observe the witnesses' facial expressions, attitudes, tone of voice, reactions to questions, and other behavior."). Only when credibility determinations are internally inconsistent, based upon incoherent or implausible testimony, or directly at odds with objective evidence is a more searching review warranted. United States v. Nolen, 536 F.3d 834, 844 (8th Cir.2008); United States v. Jones, 254 F.3d 692, 695 (8th Cir.2001).

The testimony of the witnesses contained minor inconsistencies and omissions. On the whole, however, it was entirely consistent with the government's allegations, the testimony of the other witnesses, and the objective evidence. The witnesses testified that they were cooperating with the government in hopes of receiving lower sentences, and this was certainly relevant to the jury's credibility determination. United States v. Espino, 317 F.3d 788, 794 (8th Cir.2003). The jury had the prerogative to credit or discount the government's witnesses based upon this cooperation, and the jury choose to believe the government's witnesses, notwithstanding the incentives in play. Id. The government's witnesses also testified frankly about their addictions and abuse of methamphetamine. Prior drug abuse may be relevant when the...