U.S. v. DePriest

• Citation: 6 F.3d 1201
• Decision Date: 21 September 1993
• Docket Number: 92-3226 and 92-3935,Nos. 92-3126,s. 92-3126
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kevin O. DePRIEST and Steve Morrell, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1201

6 F.3d 1201

UNITED STATES of America, Plaintiff-Appellee, v. Kevin O. DePRIEST and Steve Morrell, Defendants-Appellants.

Nos. 92-3126, 92-3226 and 92-3935.

United States Court of Appeals,

Seventh Circuit.

Argued June 8, 1993.

Decided Sept. 21, 1993.

John J. Thar, Asst. U.S. Atty., Office of U.S. Atty., Indianapolis, IN (argued), for U.S.

David E. Smith, Benton, AR (argued), for Kevin O. DePriest.

David W. Lamont, Evansville, IN (argued), for Steve Morrell.

Before CUDAHY and RIPPLE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

RIPPLE, Circuit Judge.

Kevin DePriest and Steve Morrell were convicted of conspiring to possess with the intent to distribute and of conspiring to distribute a quantity greater than one kilogram of methamphetamine, a Schedule II Non-Narcotic Controlled Substance, in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (1988). Mr. DePriest was sentenced to 151 months' imprisonment to be followed by 5 years of supervised release, and Mr. Morrell was sentenced to 262 months' imprisonment to be followed by 5 years of supervised release. Mr. DePriest appeals his conviction, while Mr. Morrell appeals both his conviction and his sentence. We vacate Mr. Morrell's sentence and remand for resentencing. In all other respects, we affirm the judgment of the district court.

I BACKGROUND

A. Facts

From 1985 through 1990, a large methamphetamine conspiracy thrived in Evansville, Indiana, and later in the outskirts of Little Rock, Arkansas. Approximately sixty to eighty pounds of methamphetamine passed through the conspiracy during its five-year existence. Many of the primary conspirators pled guilty after the scheme was discovered and shut down, and they provided crucial testimony at the trial of Mr. DePriest and Mr. Morrell.

The conspiracy began in 1985, when Darryl Taylor visited California in search of a methamphetamine source. He met Robert Westling who agreed to be the supplier, and they worked out a system by which the methamphetamine would be delivered from California to Taylor's distributors. Apparently Westling was the source of all the methamphetamine that was distributed during the course of the conspiracy. In the beginning, Mr. Morrell was one of Taylor's "main outlets." Tr. at 207-08. Taylor's father-in-law, David Foster, testified that he Mr. Morrell remained a primary member of the conspiracy until late 1986 when he and Taylor had a falling out. Taylor believed that Mr. Morrell owed him $7,000 because of a previous drug transaction; Mr. Morrell contended that he had already paid the debt. Taylor then determined not to participate in any more drug deals with Mr. Morrell. After this disagreement, Taylor asked Willingham if he was ready to start selling larger quantities than he had been receiving previously from Mr. Morrell. Willingham assented to this new role and thus displaced Mr. Morrell as Taylor's main distributor.

often delivered methamphetamine to Mr. Morrell for distribution. Additionally, both Robert Willingham and Christopher Silkey testified that they had bought quantities of the drug from Mr. Morrell.

Although Mr. Morrell no longer had a primary role in the conspiracy after his argument with Taylor, he did not disappear entirely from the scheme. Once Willingham began to deal directly with Taylor, Mr. Morrell became Willingham's customer. Willingham testified that he distributed "a couple of pounds" of methamphetamine to Mr. Morrell from the time their roles in the conspiracy switched in 1986 until 1990 when Willingham was arrested. Tr. at 269. Furthermore, Taylor testified that, on the day he was arrested, August 31, 1990, Mr. Morrell showed up at his house and stated that he had heard Taylor was receiving a shipment of methamphetamine and requested a "couple of pounds." Tr. at 206. Although Taylor testified that he merely wanted Mr. Morrell to leave and had no intention of giving him a portion of the expected shipment, Taylor agreed to the request. Id.

Mr. DePriest's role in the conspiracy began in 1987. In December 1986, when Taylor became concerned that Indiana law enforcement authorities might be suspicious of his illegal activities, he moved to Benton, Arkansas and purchased a house. Mr. DePriest owned his own plumbing business and Taylor hired him to help remodel the house. Taylor was often present during the remodeling and one day after work, he asked Mr. DePriest if he wanted to do some methamphetamine. Taylor testified that, after Mr. DePriest had snorted a small quantity of the drug, Taylor asked him if he would be interested in selling it; Mr. DePriest said yes.

In October 1987, Taylor gave Mr. DePriest one pound of the drug. He allowed Mr. DePriest to sell it at his own pace and allowed him to pay off the price gradually. Taylor eventually gave Mr. DePriest two more distributions of two pounds and three pounds respectively. Additionally, Foster testified that he had made one delivery to Mr. DePriest in Arkansas. Bruce Hicks, another associate of Taylor's, also testified that Taylor had told him that Mr. DePriest was ready to sell some methamphetamine for him, but that Taylor was allowing him to sell it at his own pace.

The last overt act in the conspiracy was a fifteen-pound shipment of methamphetamine from California that was to be delivered to Mr. DePriest. When the courier arrived in Arkansas, however, Mr. DePriest was in the hospital for treatment on account of injuries suffered in a car accident. Consequently, the methamphetamine could not be delivered to him. Instead, the shipment was placed in storage and another member of the conspiracy retrieved it and took it to Evansville.

Mr. DePriest and Mr. Morrell were indicted for their roles in the conspiracy and were tried together before a jury. At trial, both men contended that they had not been participants in the conspiracy. Mr. Morrell's defense incorporated evidence that several members of the conspiracy may have held grudges against him because he had had romantic liaisons with their girlfriends or wives. Mr. DePriest acknowledged that he had taken methamphetamine with Taylor, but denied that he had ever sold the drug or had in any way been involved in the conspiracy.

On May 19, 1992, a jury found both defendants guilty of conspiracy to possess with the intent to distribute and to distribute methamphetamine in a quantity greater than one kilogram in violation of 21 U.S.C. Secs. 841(a)(1) and 846. Mr. DePriest and Mr. Morrell raise numerous issues on appeal. Mr. DePriest contests his conviction. Mr. Morrell contests both his conviction and his

sentence and also appeals the denial of a motion for a new trial on the basis that he had discovered new evidence. For the reasons that follow, we affirm.

II ANALYSIS

A. Sufficiency of the Evidence

A defendant challenging the sufficiency of the evidence upon which he was convicted must shoulder a heavy burden. United States v. Holland, 992 F.2d 687, 689 (7th Cir.1993). We must uphold a conviction if, " 'after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Byerley, 999 F.2d 231, 233 (7th Cir.1993) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)); see alsoHolland, 992 F.2d at 689 (stating same). We also note that it is neither this court's function to reweigh the evidence presented at trial nor to reassess witness credibility. Byerley, 999 F.2d at 233. " 'Only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilty beyond a reasonable doubt, may an appellate court overturn the verdict.' " Id. (quoting United States v. Whaley, 830 F.2d 1469 (7th Cir.1987), cert. denied, 486 U.S. 1009, 108 S.Ct. 1738, 100 L.Ed.2d 202 (1988)).

1. Mr. Morrell's participation in the conspiracy

The indictment charged Mr. Morrell with participation in a single large conspiracy that operated from 1985 through August 31, 1990. Mr. Morrell contends that, while he may have been a member of several small conspiracies, he was not part of the single charged conspiracy. He claims that the government presented no direct evidence that he remained a part of the conspiracy once he and Taylor had their falling out, and thus the government did not establish that he participated in the entire charged conspiracy.

Viewing the evidence at trial in the most favorable light to the government, we conclude that sufficient testimony was presented to permit a jury to find that Mr. Morrell participated in the charged conspiracy. Taylor testified that Mr. Morrell had been one of his main distributors from 1985 through 1986, receiving shipments of methamphetamine and then selling them or further distributing them. Additionally, both Silkey and Willingham testified that they bought methamphetamine from Mr. Morrell. Thus, the trial testimony supports the finding that Mr. Morrell was a key member of the conspiracy until late 1986. Furthermore, he remained a member of the conspiracy for its entire duration because he never affirmatively withdrew from it.

We have stated that there are stringent requirements for asserting withdrawal from a conspiracy. United States v. Schweihs, 971 F.2d 1302, 1323 (7th Cir.1992); United States v. Bafia, 949 F.2d 1465, 1477 (7th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1989, 118 L.Ed.2d 586 (1992). A defendant can withdraw only by affirmatively disavowing the conspiracy's purpose. Bafia, 949 F.2d at 1477. The "defendant's membership in the conspiracy is presumed to continue until he withdraws from the conspiracy by affirmative action." United States v. Bennett, 984 F.2d 597, 609 (4th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 2428, 124 L.Ed.2d 649 (1993); see alsoUnited States v. Pofahl, 990 F.2d 1456 (5th Cir.1993) (stating same). Thus, a conspirator affirmatively must make his withdrawal known either...