U.S. v. Youngpeter, Nos. 91-5193

Citation986 F.2d 349
Decision Date16 February 1993
Docket NumberNos. 91-5193,92-5124
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Mike YOUNGPETER, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

John S. Morgan, Asst. U.S. Atty. (Tony M. Graham, U.S. Atty., with him on the briefs), Tulsa, OK, for plaintiff-appellee.

C.W. Hack of Flowers, Harman, Hack & Finlayson, P.A., Tulsa, OK, for defendant-appellant.

Before ANDERSON and BRORBY, Circuit Judges, and BRATTON, * Senior District Judge.

BRORBY, Circuit Judge.

Mr. Youngpeter 1 was convicted of a drug conspiracy 2 and appeals asserting insufficiency of the evidence, erroneous denial of his motion to sever his trial from that of the co-defendants and sentencing error. Mr. Youngpeter also appeals the denial of his motion for new trial. We consolidated Mr. Youngpeter's appeals and affirm.

A synopsis of the prosecution's evidence reveals a conspiracy to manufacture, possess and sell methamphetamine. The many people involved were led by Johnny Glover who supplied the capital, equipment, chemicals, manufacturing locations, vehicles, and leadership. Mr. Youngpeter's part was that of a seller of the illegally made drugs.

I Sufficiency of the Evidence

In a drug conspiracy case, the evidence must show the following: (1) two or more persons agreed to violate federal narcotics laws; (2) the defendant knew the essential objectives of the conspiracy; and (3) the defendant knowingly and voluntarily became a part of the conspiracy. United States v. Russell, 963 F.2d 1320, 1322 (10th Cir.) (citing United States v. Savaiano, 843 F.2d 1280, 1294 (10th Cir.1988)), cert. denied, --- U.S. ----, 113 S.Ct. 280, 121 L.Ed.2d 207 (1992). Mr. Youngpeter asserts the evidence was insufficient to prove he distributed methamphetamine. Mr. Youngpeter concedes he knowingly purchased illicit drugs from the conspiracy, but argues that the evidence only shows he was a drug user and fails to show he was a drug distributor. Thus, the issue is simply whether the evidence is sufficient to enable a jury to find beyond a reasonable doubt that Mr. Youngpeter was distributing drugs for the conspiracy. Stated somewhat differently, the question is: Was Mr. Youngpeter a distributor of the illegal drugs or was he a merely a consumer?

Examining the trial record, we find sufficient evidence that would enable a jury to find, beyond a reasonable doubt, that Mr. Youngpeter was a distributor and seller of the illegal drugs. Mr. Johnny Glover, the leader of the drug conspiracy, testified: (1) he sold a total of approximately one and one-half pounds of methamphetamine to Mr. Youngpeter on more than eight separate occasions; and (2) Mr. Youngpeter told him that he was selling the purchased drugs. Kerrie Webster testified she purchased methamphetamine from Mr. Youngpeter on several occasions. Mr. Thomas, a methamphetamine cook for the conspiracy, testified he sold methamphetamine to Mr. Youngpeter in five, ten and twenty pound lots and the conspiracy even "fronted" the drugs to Mr. Youngpeter, which by Mr. Thomas's definition meant that Mr. Youngpeter had to wholesale it to other sellers to obtain the money to pay back the purchase price. Another witness, Ruby Jackson, testified that on the orders of Johnny Glover, she delivered a paper sack to Mr. Youngpeter that was half full of twenty and one hundred dollar bills and Mr. Youngpeter thanked her.

Mr. Youngpeter argues that the evidence obtained from Johnny Glover's testimony, as recited above, was "highly attenuated"; that Kerrie Webster could have been confused; and that Mr. Thomas's testimony was unreliable. These arguments were properly directed to the jury. The jury was not persuaded by these arguments and accepted the testimony of these individuals as above summarized. An appellate court may not decide the credibility of witnesses as that is the exclusive task of the fact trier. The record also reveals conflicting testimony presented by the defense; but, once again, it is for the jury to decide which witnesses to believe and which not. Once the jury has spoken, this court may not reweigh the credibility of the witnesses. Our task is to view the evidence presented in a light most favorable to the government and to give the government the benefit of all favorable inferences that may be drawn from this testimony. United States v. Cox, 929 F.2d 1511, 1514 (10th Cir.1991). This we have done, and in so doing have concluded the evidence was sufficient to conclude beyond a reasonable doubt that Mr. Youngpeter was guilty as charged.

II Denial of the Severance

Four defendants, including Mr. Youngpeter, were jointly charged and tried on a single count--the drug conspiracy charge. Mr. Youngpeter filed a motion for a separate trial, which was denied. Mr. Youngpeter now asserts this was error arguing the three co-defendants "were much more culpable than he."

Separate trials are not a matter of right where two or more defendants allegedly participated in the same act or transaction or the same series of acts or transactions that constituted a criminal offense. United States v. Davis, 436 F.2d 679, 681 (10th Cir.1971). A severance should be granted by the district court "only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro v. United States, --- U.S. ----, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). In order to obtain a separate trial, the defendant must make a strong showing of prejudice. United States v. Evans, 970 F.2d 663, 675 (10th Cir.1992), petition for cert. filed Oct. 9, 1992, S.Ct. No. 92-6186; United States v. Bailey, 952 F.2d 363, 365 (10th Cir.1991) (citing United States v. Cardall, 885 F.2d 656, 667-68 (10th Cir.1989)). This burden is heavy for the defendant to bear as he must show more than a better chance of acquittal or a hypothesis of prejudice, Bailey, 952 F.2d at 369, he must, in fact, show real prejudice. United States v. Jones, 707 F.2d 1169, 1171 (10th Cir.), cert. denied, 464 U.S. 859, 104 S.Ct. 184, 78 L.Ed.2d 163 (1983). Any potential prejudice suffered by Mr. Youngpeter must be weighed " 'against the important considerations of economy and expedition in judicial administration' ..., considerations [that] are quite strong when the codefendants allegedly conspired with each other." United States v. Mayes, 917 F.2d 457, 460-61 (10th Cir.1990) (quoting United States v. Esch, 832 F.2d 531, 537 (10th Cir.1987), cert. denied, 485 U.S. 908, 108 S.Ct. 1084, 99 L.Ed.2d 242 and 485 U.S. 991, 108 S.Ct. 1299, 99 L.Ed.2d 509 (1988)), cert. denied, 485 U.S. 991, 111 S.Ct. 1087, 112 L.Ed.2d 1192 (1991). As a severance is a matter of discretion and not right, we review the trial court's decision denying a severance under an abuse of discretion standard. Evans, 970 F.2d at 675.

The mere fact that one co-defendant is less culpable than the remaining co-defendants is not alone sufficient grounds to establish a trial court abused its discretion in denying a severance. It would be normal and usual to assume one of two or more co-defendants would be more or less culpable than the others. The joint trial did not "compromise a specific trial right" of Mr. Youngpeter and did not "prevent the jury from making a reliable judgment [as to Mr. Youngpeter's] guilt or innocence." Zafiro, --- U.S. ----, 113 S.Ct. 933, 122 L.Ed.2d 317. Mr. Youngpeter failed to meet his burden of showing real prejudice, and the trial court did not abuse its discretion in denying Mr. Youngpeter's motion for a severance.

III Sentencing Errors
A. Miscalculation of Base Offense Level

Mr. Youngpeter asserts the trial court miscalculated the base offense level when it computed the chargeable quantity of methamphetamine. Mr. Youngpeter argues that he should only be chargeable with the 1.5 pounds Mr. Glover testified he sold to Mr. Youngpeter rather than the 26.5 pounds found by the trial court. This difference would reduce the base offense level from 36 to 28.

The trial court arrived at the quantity of 26.5 pounds by accepting the testimony of Johnny Glover (who testified that he sold Mr. Youngpeter 1.5 pounds); adding six pounds of methamphetamine Mr. Glover attempted to produce in October or November of 1984 (due to ineptness this "cook" only produced one pound); and adding eighteen gallons of methamphetamine oil which would have "powdered out" to eighteen pounds of methamphetamine.

Mr. Youngpeter first asserts that as there was absolutely no evidence he was ever involved in methamphetamine manufacturing, he cannot be held accountable therefor.

United States Sentencing Guideline § 2D1.4 provides that if the defendant is convicted of a conspiracy, as Mr. Youngpeter was, the offense level shall be the same "as if the object of the conspiracy ... had been completed." The evidence clearly establishes Mr. Youngpeter knew that one of the objectives of the conspiracy was to manufacture methamphetamine. The fact that Mr. Youngpeter was only involved in distribution is irrelevant to his sentencing. The trial court could and should consider the entire quantity of drugs manufactured as these are within the scope of the conspiracy so long as this quantity was "reasonably foreseeable" in conjunction with Mr. Youngpeter's agreement to be a distributor of the illegally produced drugs. See U.S.S.G. § 1B1.3, comment. (n.1). As a member of an ongoing conspiracy, the defendant is subject to a sentence calculated on a base offense level established by reference to the quantity of drugs involved in the offense if the defendant "knew or should have known that at least such amount was involved." United States v. Williams, 897 F.2d 1034, 1041 (10th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2064, 114 L.Ed.2d 469 (1991).

Mr. Youngpeter argues that the "cook" that attempted to produce six pounds of methamphetamine produced only one pound due to inept cooking...

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