U.S. v. Akers

• Decision Date: 02 March 1993
• Docket Number: 92-3051,Nos. 92-2792,s. 92-2792
• Citation: 987 F.2d 507
• Parties: UNITED STATES of America, Appellee, v. Jerry AKERS, Appellant. UNITED STATES of America, Appellee, v. Robby G. ROST, also known as Bobby G. Rost, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 507

987 F.2d 507

UNITED STATES of America, Appellee, v. Jerry AKERS, Appellant.

UNITED STATES of America, Appellee, v. Robby G. ROST, also known as Bobby G. Rost, Appellant.

Nos. 92-2792, 92-3051.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 18, 1992.

Decided March 2, 1993.

M. Elise Branyan, Federal Public Defender, Springfield, MO, argued (Raymond C. Conrad, Jr., Federal Public Defender, MO, on brief), for Jerry Akers.

Roger C. Jones, Springfield, MO, argued, for Robby G. Rost.

David P. Rush, Asst. U.S. Atty., Springfield, MO, argued, for U.S.

Before JOHN R. GIBSON and WOLLMAN, Circuit Judges, and STROM, ^* District Judge.

WOLLMAN, Circuit Judge.

Jerry Akers and Robby Rost appeal from their respective convictions in district court ¹ for conspiracy to distribute methamphetamine, attempt to possess methamphetamine with intent to distribute, and use of a communication facility to facilitate a drug trafficking offense. Appellant Rost also appeals from his additional convictions for assault on a federal officer and use of a firearm in connection with a drug-related offense. We affirm.

I.

On February 12, 1992, Robert Ross received a package from the U.S. Postal Service addressed to "Bob Rost, 5330 North H Highway." Although Ross was surprised that the package had been delivered to him because it listed a different name and address, he opened the package nevertheless. After removing a covering of paper towels, aluminum foil, and tape, Ross discovered that it contained a white powder that smelled, as he later testified, like "washing powder." His suspicions raised, Ross telephoned the Greene County, Missouri Sheriff's Department, officers from which came to his house and took custody of the package. Later that same day, Ross received calls from a man who identified himself as Bob Rost and a woman, both inquiring about the package. Ross informed both callers that he had not opened the package and had returned it to the Post Office.

After ascertaining that the package probably contained methamphetamine, the Greene County Sheriff's Department contacted the federal Drug Enforcement Administration's (DEA) Springfield, Missouri office. The DEA and the Sheriff's Department formulated a plan to attempt delivery of the package to the original addressee at the main Springfield, Missouri post office. Accordingly, law enforcement officials repackaged a portion of the methamphetamine and presented it to postal officers after consulting with them regarding the plan. Postal supervisor C.L. Carter then telephoned a number that he had received from a previous call inquiring about the package. Carter informed the caller that the package had been returned to the post office and that the caller could come to the post office to pick it up himself or have it delivered the following morning. The caller told Carter that he would come to the post office to collect the package. The authorities set up surveillance in the post office parking lot and designated Special Agent John Cornille to deliver the package inside the post office.

Shortly thereafter, Agent Cornille received a radio call from the surveillance team informing him that three individuals had entered the parking lot in two vehicles, a Chevrolet Corvette and a Pontiac Firebird, and were about to enter the post office. Moments later, the three individuals, later identified as Jerry Akers, Robby Rost, and Donald Osburn, entered the post office. Osburn asked if there was an Overnight Express package for him. Agent Cornille asked him, "Are you Bob Rost?" Osburn replied "Yes." When Agent Cornille asked him to sign for the package, however, Osburn did not step forward. Rost did, and signed "Bob Rost" on the receipt, whereupon Cornille handed Rost the package containing the methamphetamine. The three individuals then exited the building.

Upon exiting the post office and moving towards their vehicles, Akers, Rost, and Osburn were met by the surveillance detail, who identified themselves to the three men and requested them to stop. Thereupon, all three men attempted to flee. Rost and Osburn leaped into Rost's Corvette, and Rost tossed the package to Akers. Akers caught the package and ran a few steps with it before discarding it and attempting to escape. Officers apprehended Akers at the scene.

In response to questioning immediately after his arrest, Akers claimed that he did not know who the occupants of the Corvette were or where they were going. Akers contended that he had only just met them when they had asked him to direct them to the post office. An inventory of Akers' vehicle, the Firebird, conducted at the scene, recovered the following items: (1) a receipt for the sale of the Firebird made out to "Bob Rost"; (2) an inspection sticker and application for Missouri title in the name of "Bobby G. Rost"; (3) photographs of Rost; (4) Federal Express envelopes; and (5) syringes.

Meanwhile, Rost and Osburn attempted to flee the scene in the Corvette. Agent Cornille, who had just exited the building, ordered them to stop. Instead of leaving the parking lot by the nearest exit, Rost attempted to run over Cornille. Cornille gave chase in his car, successfully apprehending Rost and Osburn a few blocks away. An inventory of Rost's wallet revealed the following items: (1) $4,500 in cash; (2) a red notebook containing police radio frequencies and a listing of first names and numbers, some with the word "bad" scrawled above them; (3) a piece of paper with the words "P2P" on it, containing weight measurements, chemical descriptions, and glassware descriptions consistent with methamphetamine production; and (4) a pawn shop receipt listing a gun and its serial number.

Shortly after his arrest, Osburn told officers that he would like to talk with them and implicated himself, Rost, and Akers without any agreement concerning what would happen to him. Officers obtained a search warrant for Rost's residence on the basis of Osburn's information.

The officers' search of Rost's residence uncovered the following items: (1) zip-lock baggies with the corners cut off, of the sort frequently used by methamphetamine dealers; (2) a set of triple-beam scales, of the sort often retained for weighing drug quantities; (3) an empty bottle of Inositol, a common cutting agent for methamphetamine; (4) a gun with the same serial number as the one on the pawn shop receipt found in Rost's wallet; (5) a corner packet of methamphetamine; and (6) a letter signed by "Richard" and addressed to "Bob and Nancy."

Osburn, who is Rost's half-brother, pleaded guilty to a charge of conspiracy to distribute methamphetamine and agreed to testify for the government. At trial, Osburn testified that Rost was heavily into trafficking methamphetamine and that his primary source was a Richard Blankenship from Texas. Osburn testified that Rost would drive to Texas to obtain the methamphetamine, monitoring police channels along the way. Osburn stated that he had assisted Rost in drug trafficking, mostly in collecting money and delivering the occasional package.

Osburn testified that he and Rost first met Akers in August 1991 to purchase methamphetamine from him. Rost gave Akers money, but did not receive any methamphetamine. Osburn testified that Akers then began to work for Rost as a distributor because he was liable for the loss. Although Rost had been receiving methamphetamine from Blankenship, Blankenship would shut down his operations periodically. Akers provided a new methamphetamine source in California, a woman who was a sister to one of Akers' girlfriends. Akers and Rost would mail money to this woman via Federal Express and she would mail a package of methamphetamine back to them. Osburn testified that Akers and Rost had received six or seven packages from their Californian contact, each package containing between a quarter and a half-pound of methamphetamine.

Osburn also testified that Akers had sold primarily out of motel rooms. Osburn testified that on one such occasion he and Rost were selling methamphetamine from Room 18 of the Satellite Motel and Akers was selling from Room 22, when Akers was contacted by police. This portion of Osburn's testimony was corroborated by Officer Gregory Fels of the Springfield Police Department. On that occasion, Officer Fels obtained Akers's permission to search Room 22 and ultimately recovered the following items: (1) a zip-lock bag with a box of rolled plastic bags; (2) a Pepsi can with the top cut off containing Inositol; (3) a small scale with white powder residue; and (4) five spoons with a powdery white residue. Officer Fels also observed a motorcycle belonging to Rost in Akers's room. Subsequent testing of the spoons and scale by a Springfield Police serologist revealed that the residue contained methamphetamine.

The jury convicted Rost on all five counts and Akers on all three counts. The district court sentenced Rost to a total term of 180 months' imprisonment, to be followed by eight years of supervised release. The district court sentenced Akers to total term of 97 months' imprisonment, to be followed by a four years of supervised release.

II.

A. Jerry Akers

On appeal, Akers argues that the district court erred by (1) denying his motion for acquittal based upon the insufficiency of the evidence; (2) denying his motion for severance; (3) refusing to grant his motion in limine to exclude certain evidence; and (4) refusing to give his tendered "mere presence" Instructions A and B. We address these issues in turn.

In reviewing a district court's decision to deny a motion for a judgment of acquittal based on the insufficiency of the evidence to support a guilty verdict, " 'we examine the evidence in the light most favorable to the government, giving it the benefit of all reasonable inferences. We reverse only if we conclude that a reasonable fact-finder must have entertained a reasonable doubt about the government's proof of one of the...