U.S. v. Turner
| Decision Date | 13 August 1996 |
| Docket Number | No. 95-2831,95-2831 |
| Citation | 93 F.3d 276 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Roger TURNER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
John W. Vaudreuil, Timothy O'Shea (argued), Office of U.S. Atty., Madison, WI, for U.S.
Stephen J. Eisenberg, Madison, WI (argued), for Roger Turner.
Before EASTERBROOK, RIPPLE and EVANS, Circuit Judges.
Presented with a two-count indictment, a jury convicted Roger Turner of conspiracy to possess methamphetamine with the intent to distribute and to distribute methamphetamine, in violation of 21 U.S.C. § 846, and of possessing methamphetamine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1). He now appeals his conviction and sentence. Mr. Turner challenges the sufficiency of the evidence supporting his conspiracy conviction. He then challenges several trial decisions of the district court: (1) the district court's denial of his motion to sever Counts I and II of the indictment; and (2) the district court's refusal to give his
proffered buyer-seller instruction on the conspiracy count. Finally, he challenges several aspects of the sentencing proceeding: (1) the constitutionality of the sentencing scheme for methamphetamine; (2) the district court's determination that "all of the controlled substances in this case" were intended for distribution and properly considered relevant conduct; and (3) the application of a two-level sentencing enhancement for possessing a firearm in connection with the substantive possession offense. For the reasons set forth in the following opinion, we affirm the judgment of the district court.
Count I of the indictment charges Mr. Turner with participating in a conspiracy that is alleged to have lasted from October 1991 to January 1992. After living in the State of Washington during the 1980s, Mr. Turner returned to Beloit, Wisconsin in May 1991. Taking up residence there, he renewed his twenty-year-old friendship with Dennis and Nancy Brice. He introduced the Brices to methamphetamine, and the three of them began smoking the drug together on an almost daily basis. Dennis Brice later testified that, toward the end of the period leading up to his arrest, he (Brice) was smoking methamphetamine three or four times per day.
In December 1991, Dennis and Nancy Brice began accepting packages for Mr. Turner at their residence. Twice during that month, United Parcel Service delivered packages to the Brice residence. Each package had a return address in the State of Washington. Mr. Turner was present at the Brice residence for the arrival of both deliveries. Mr. Brice signed for the packages on both occasions. Each package contained, among other items, a false-bottom can that concealed syringes, pills and methamphetamine. On each occasion, Mr. Turner shared a small quantity of the methamphetamine with the Brices, and then departed with the contents of the packages.
Acting on a tip from Washington law enforcement officials that a third package was en route to the Brice residence, Detective Orville Kreitzmann effected a controlled delivery of the package. After Dennis Brice signed for the package, the police arrested the Brices and Mr. Turner, who again was present for the delivery. A search of the package revealed that it contained methamphetamine, marijuana and $10,000 in cash. Mr. Brice consented to a search of his residence, and the police recovered a glass pipe, a small quantity of marijuana, several firearms and six packages containing a total of 19.16 grams of methamphetamine.
Count II of the indictment charges Mr. Turner with the substantive offense of possessing methamphetamine with the intent to distribute. The conduct giving rise to this charge is alleged to have occurred on April 13, 1993--more than a year after the Count I conspiracy is alleged to have ended.
In early 1993, Sheriff's Deputy Darla Hoerler was working undercover in Rock County, Wisconsin. An informant introduced her to a group of individuals, including Jamie Shaw and Donald Stenberg, who supposedly could obtain methamphetamine in Beloit. On April 11, 1993, Deputy Hoerler contacted Shaw and Stenberg. She indicated that she had a quantity of Percodan, a prescription pain medication, and asked them to set up an exchange of the prescription drug for methamphetamine. 1 Shaw and Stenberg agreed. The next day, Deputy Hoerler drove them to Mr. Turner's neighborhood, but the mission had to be aborted because no one was home at 1312 Elm Street--Mr. Turner's residence. On their second attempt, the threesome returned to The police then executed a search warrant for Mr. Turner's residence. The remaining Percodan tablets were discovered outside Mr. Turner's garage. Inside the house, the police recovered a total of 43.54 grams of methamphetamine and enough equipment, chemicals and precursors to manufacture between 1.5 and 2.8 kilograms of methamphetamine. The police also found four false-bottom cans, small plastic baggies identical to the one seized from Mr. Shaw on the night of his arrest, and a micro-seal device for sealing the baggies. A nine millimeter handgun and ammunition clip were seized from Mr. Turner's master bedroom. The firearm had been hidden in a mattress, and the ammunition clip was found in a dresser a few feet away. Approximately 29 grams of methamphetamine, in three separate packages, were seized from the bedroom. Also present in the bedroom were a false-bottom can, several pounds of a methamphetamine precursor, an electronic pH meter, and a large glass mixing jar with a mixing knife. The mixing jar and knife tested positive for methamphetamine residue.
that address and parked nearby. Shaw and Stenberg exited the vehicle with the Percodan. Deputy Hoerler observed the pair proceed through the backyards toward Mr. Turner's house, and another officer was able to observe them walking to the north front door. Shaw and Stenberg returned to the car minutes later without the Percodan and informed Deputy Hoerler that they would have to come back in 20 minutes for the methamphetamine. The police arrested Shaw and Stenberg shortly thereafter and, in the search incident to arrest, found on their persons a glass pipe, a Ziploc baggie containing methamphetamine and 13 to 14 Percodan tablets.
After indictment, Mr. Turner filed a motion to sever the two counts. Mr. Turner took the position that joinder of the two counts was improper under Federal Rule of Criminal Procedure 8 or, in the alternative, that he was entitled to a severance under Rule 14. The district court denied this motion and, on April 12, 1995, a jury found Mr. Turner guilty on both counts of the indictment. During sentencing, Mr. Turner objected to the amount of methamphetamine attributed to him as intended for distribution; he claimed that much of the methamphetamine found at his residence was intended for personal use. Mr. Turner also filed a motion asking the district court to declare the sentencing scheme for methamphetamine unconstitutional. The district court overruled each of these objections. The court also imposed, over Mr. Turner's objection, a two-level enhancement under U.S.S.G. § 2D1.1(b)(1) for possessing a dangerous weapon. Mr. Turner was sentenced to 92 months in prison and a five-year term of supervised release. In this appeal, he seeks review of the various rulings of the district court.
Mr. Turner asserts that the evidence adduced at trial is insufficient to support his conviction on the conspiracy charge alleged in Count I of the indictment. In reviewing a defendant's challenge to the sufficiency of evidence on appeal, we consider the evidence presented at trial in the light most favorable to the government. United States v. Monroe, 73 F.3d 129, 131 (7th Cir.1995). If any rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt, the conviction will be upheld. United States v. South, 28 F.3d 619, 626 (7th Cir.1994) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). We shall reverse a conviction "only when the record is devoid of any evidence, regardless of how it is weighed, from which a jury could find guilt beyond a reasonable doubt." United States v. Gutierrez, 978 F.2d 1463, 1468-69 (7th Cir.1992).
Under 21 U.S.C. § 846, a conspiracy is a confederation of two or more individuals formed for the purpose of committing, by their joint efforts, a criminal act prohibited by the Controlled Substances Act. United States v. Larkins, 83 F.3d 162, 165 (7th Cir.1996); United States v. Montoya, 891 F.2d 1273, 1286 (7th Cir.1989). In order to prove a conspiracy conviction, the government must provide substantial evidence that a conspiracy existed and that the defendant knowingly agreed to join that conspiracy. Larkins, 83 F.3d at 166. The government may establish each element of a conspiracy through circumstantial evidence. Id. With respect to the first element, an agreement, the government need not establish a formal agreement to conspire. United States v. Hickok, 77 F.3d 992, 1005 (7th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 1701, 134 L.Ed.2d 800 (1996). Rather, "the jury properly may find an agreement to conspire based upon circumstantial evidence and reasonable inferences drawn therefrom concerning the relationship of the parties, their overt acts, and the totality of their conduct." Id. (quoting United States v. Mojica, 984 F.2d 1426, 1432 (7th Cir.), cert. denied, 508 U.S. 947, 113 S.Ct. 2433, 124 L.Ed.2d 653 (1993)).
Before turning to an examination of the evidence presented at trial, we address the government's assertion that, because Mr. Turner failed to move for a judgment of acquittal at the close of all the evidence or within the seven-day period following the verdict as provided for in Federal Rule of Criminal Procedure...
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