U.S. v. Curry
| Decision Date | 21 May 1992 |
| Docket Number | Nos. 91-2550,91-2578,91-2556,91-2579 and 91-2586,s. 91-2550 |
| Citation | 977 F.2d 1042 |
| Parties | 36 Fed. R. Evid. Serv. 706 UNITED STATES of America, Plaintiff-Appellee, v. Timothy S. CURRY, Samuel T. Harding, Don J. Leinenbach, Robert Holland and Roger S. Curry, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Melanie Conour (argued), C. Joseph Russell, Asst. U.S. Attys., Office of U.S. Atty., Indianapolis, Ind., for U.S.
Roger S. Curry, pro se.
Spiros P. Cocoves (argued), Toledo, Ohio, for Robert C. Holland.
Glenn A. Grampp (argued), Evansville, Ind., for Don J. Leinenbach.
Michael J. McDaniel (argued), New Albany, Ind., for Samuel T. Harding.
Robert Canada, Evansville, Ind., Daniel C. Hale, Miller, Hale & Harrison, Boulder, Colo., James W. Lawson (argued), Oteri, Weinberg & Lawson, Boston, Mass., for Timothy S. Curry.
Before CUMMINGS and FLAUM, Circuit Judges, and WOOD, Jr., Senior Circuit Judge.
A jury found defendants Timothy Curry ("Tim"), Roger Curry ("Roger"), Don Jeffrey Leinenbach, and Samuel T. Harding guilty of conspiracy to manufacture and possess with intent to distribute in excess of fifty kilograms of marijuana in violation of 21 U.S.C. § 846. Tim, Roger, and Harding were also found guilty of manufacturing in excess of fifty kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1). The jury found defendant Robert Holland guilty of making false declarations before a federal grand jury in violation of 18 U.S.C. § 1623. The defendants raise a number of issues regarding the propriety of their convictions and sentences. We affirm.
Co-conspirators Mary Lynch and Brenton Long provided the details surrounding the defendants' conspiracy to manufacture and possess with intent to distribute marijuana. Long testified at trial for the government under a grant of immunity. Defendant Lynch pleaded guilty pursuant to a plea agreement limiting her prison term to no more than three years, and was obligated to testify under the agreement.
In late 1982, Lynch and Long helped Tim and his wife, defendant Joyce Curry (who has not appealed from her conviction), and others hang marijuana to dry in the basement of Tim's Niwot, Colorado, residence. After the marijuana was dry, Lynch "manicured" (prepared) some of it for sale, earning $10.00 per hour from Tim. Tim told her that the marijuana came from Indiana.
In the spring of 1983, Tim hired Lynch and Long to help clone marijuana plants in his residence. After Tim taught them how to clone the plants, they (primarily Long) produced approximately 2,500 new marijuana plants from thirty to fifty mother plants. Long agreed to work for Tim in transporting, planting, and harvesting the marijuana. Tim, Long, defendant Holland and another individual brought the new marijuana plants first to Nebraska, where they planted 500 of the plants, and then to Jasper, Indiana. In Jasper, Long met Tim's brother, Roger, and Long, Tim, Roger, and Holland subsequently planted the remaining 2,000 plants on defendant Leinenbach's farm in Otwell, Indiana. Long met and had conversations with Leinenbach in the spring of 1983, but Leinenbach did not participate directly in any of the planting activity. The spring planting was completed by June 21, 1983.
A person named "Rich Kelly" was mentioned on numerous occasions during trial. Testimony at trial indicated that Kelly is a fictional character created by the defendants to take blame for their marijuana growing, although at least some of the defendants apparently still contend that he is an actual person. A "Rich Kelly" purchased a farm in Velpen, Indiana, from the Jasper State Bank in September 1983. According to the Bank's president Joseph Miller, Roger vouched for Kelly, stating that he had known Kelly since boyhood. Miller testified that the real estate transaction with Kelly was "highly unusual" because no financial statement, credit report, or employment verification of Kelly was ever done. A checking account was opened in Kelly's name which listed Roger as the person who would know Kelly's location. In addition, Lynch testified that she, Tim, Roger, and Holland discussed the use of a fictitious person named Kelly during the summer of 1985. Lynch also testified that the continued use of a "Richard Kelly" as a scapegoat was discussed by Holland, Joyce, and herself in 1987, and by Tim and herself in 1989. In the spring of 1983, Tim had asked Long to play the role of Rich Kelly, in whose name certain property in Indiana was to be purchased, but Long refused.
During the fall of 1983, Long, Roger, Tim, and Holland harvested marijuana at Leinenbach's farm. To avoid detection, the marijuana was harvested at night while Leinenbach harvested the surrounding corn crop. The harvested marijuana was transported to the Velpen farm where it was hung to dry. When the marijuana was dry, Tim, Roger, Long, and Joyce packed it into over 100 boxes. At Tim's request, Long drove 56 of the boxes to Colorado. The boxes were eventually stored at Tim's home. The marijuana was transferred over a period of time to Lynch's home in Boulder, Colorado, where Lynch and others manicured it for sale in late 1983 and early 1984. Approximately 1,000 pounds of finished marijuana were produced for sale. Tim told Long that he (Tim) had made over one million dollars between the 1983 marijuana project and a "spec house" that he had built.
In May 1984, an electric company employee discovered hundreds of small marijuana plants growing in containers near the Velpen farmhouse. In June 1984, Roger asked Dennis Mehringer to estimate the cost of plumbing repairs at the Velpen farmhouse. Merhinger was introduced to a Richard Kelly at the farmhouse. Around September 1984, defendant Steven Bush (who was found not guilty at trial) showed Jeff Griffith where marijuana was growing at Leinenbach's farm. Griffith returned to Leinenbach's farm and stole marijuana at least three times in 1984. Bush told Griffith that the people who were growing the marijuana included Roger and Holland. In the fall of 1984, Tim again asked Lynch to manicure some of the marijuana from Indiana. She and others processed approximately 250 to 300 pounds of saleable marijuana in Colorado. Tim indicated that this was only part of the harvest.
In the spring of 1985, "Richard Kelly" purchased a farm in rural Martin County, Indiana, from Mark and Cindy Hewitt. The closing was attended by "Kelly," Tommy and Thelma Crane, Mark and Cindy Hewitt, and two realtors. Mark Hewitt identified Tim as the person who introduced himself as Kelly at the closing. One of the realtors and Thelma Crane reaffirmed their previous selections of Tim's photograph as Kelly, although neither could make a certain in-court identification. Thelma Crane noted that Kelly's hair was shorter and he did not have glasses. Lynch had earlier testified that Tim's hair was darker than usual and that he had not worn glasses previously. One of the previous residents at the Martin County farm testified that she saw Tim and Roger walking around the farm twice before the sale of the farm, and that Tim's hair had been lighter and he was not wearing glasses. Another previous resident also identified Tim as one of the two persons at the farm. This resident saw Roger at the farm after it was sold, and talked to Tim and defendant Samuel Harding. A neighbor also saw Harding at the Martin County farm.
In the summer of 1985, Tim offered Lynch $15,000 to come to the Martin County farm and "weed" marijuana because Harding had hurt his back. Lynch agreed and came to Jasper, where she met Holland and went to Roger's law office to get keys to the Martin County farm. She saw the marijuana growing room at the Velpen farmhouse while she was in Indiana, and helped Roger clean the house. During her visit, Holland helped Lynch weed around the marijuana plants, Tim gave her money for expenses, and Roger visited her.
Harding's former wife, Joan Hylinski, testified that Harding went to Jasper, Indiana, in May 1985, telling her that he was going to help some friends on a farm. In July of that year, Hylinski traveled to Jasper and stayed with Harding for approximately 10 days at the Martin County farm, helping Harding pull weeds from the marijuana fields there. Hylinski also went to Leinenbach's farm with Harding and Roger where they inspected the marijuana plants. Hylinski, Harding, and Roger transplanted marijuana plants in the growing room of the Velpen farmhouse.
In September 1985, Lynch, Tim, Roger, Harding, Holland, and one other person harvested the marijuana at the Martin County farm. Lynch acted as a lookout for the operation. She also assisted Tim, Harding, and others with the preparation of the barn for harvest, including putting plastic on the floors, stringing twine between the walls, cutting a ventilation hole in the side of the barn, and getting a large propane heater to dry the marijuana. When the marijuana from the Martin County farm was hung to dry, Tim, Roger, Harding, and Holland went to harvest Leinenbach's farm. They returned, however, and said the marijuana had been stolen.
To avoid discovery by police, the harvesters dismantled the growing room at the Velpen farm. The valuable items were returned to Colorado, as were some marijuana plants and some dried marijuana from the Martin County farm. During the cleanup of the Velpen farmhouse, Lynch used the central vacuum system at the house, but the bag was never emptied. Lynch returned to Colorado, where she and others manicured marijuana for approximately one month, producing about 250 pounds of saleable marijuana. Lynch sold some of this marijuana and observed Tim sell a "large portion" of it in late 1985. Tim paid Lynch $10,000 in cash and marijuana for her part in the...
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