U.S. v. Alexander, s. 92-1261
| Decision Date | 09 December 1992 |
| Docket Number | 92-1270,Nos. 92-1261,92-1264,92-1269,s. 92-1261 |
| Citation | 982 F.2d 262 |
| Parties | UNITED STATES of America, Appellee, v. Rodney ALEXANDER, Appellant. UNITED STATES of America, Appellee, v. Emmanuel G. LEEPER, Appellant. UNITED STATES of America, Appellee, v. George Eugene ROBERTS, Appellant. UNITED STATES of America, Appellee, v. Michael ROBERTS, Appellant. UNITED STATES of America, Appellee, v. Charles Boston JONES, Appellant. , and 92-1272. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Lee Lawless, St. Louis, MO, argued, for appellant Alexander.
Lawrence A. Baerveldt, St. Louis, MO, argued (Daniel V. O'Brien, on the brief), for appellant Leeper.
Joseph Abraham, Jr., El Paso, TX, argued, for appellant Roberts.
Jeff S. Allder, El Paso, TX, argued, for appellant Jones.
Edward J. Rogers, St. Louis, MO, argued (Stephen B. Higgins and Edward J. Rogers, on the brief) for appellee.
Before McMILLIAN, Circuit Judge, BRIGHT, Senior Circuit Judge, and WOLLMAN, Circuit Judge.
Rodney Alexander, Emmanuel G. Leeper, George Eugene Roberts, Michael Roberts and Charles Boston Jones appeal their convictions for conspiring to possess marijuana with the intent to distribute it and to distribute marijuana. Michael Roberts and Charles Jones also appeal their conviction for distributing marijuana.
Collectively, appellants argue their convictions should be reversed and remanded for retrial and/or resentencing because: (1) the district court erred in relying on speculation and hearsay in its determination of the quantity of marijuana involved in the offense; and (2) the district court erred in failing to require the jury to determine the quantity of marijuana involved in the offense.
Individually, defendant Rodney Alexander argues his conviction should be reversed and remanded for retrial and/or resentencing because: (1) the prosecutor improperly requested before the jury that he submit to a urine and/or blood test; (2) the district court erred in failing to make separate findings for each participant as to the quantity of marijuana to which each conspirator agreed and the quantity that was reasonably foreseeable by that participant; and (3) the district court found as a matter of law that it lacked the power to depart below the applicable guideline range and therefore erroneously refused to consider a departure. The trial court sentenced this defendant to 151 months (12 years, 7 months), plus five years supervised release.
Defendant Emmanuel G. Leeper argues his conviction should be reversed and remanded for retrial and/or resentencing because: (1) the district court found as a matter of law that it lacked the power to depart below the applicable guideline range and therefore erroneously refused to consider a departure. Leeper received the same sentence as Alexander.
Defendant George Eugene Roberts argues his conviction should be reversed and remanded for retrial and/or resentencing because: (1) the district court incorrectly set George Roberts' base offense level based on the amount of marijuana attributable to him during his involvement in the conspiracy. He received the same sentence as Alexander and Leeper.
Defendant Michael Roberts argues his conviction should be reversed and remanded for retrial and/or resentencing because: (1) the district court incorrectly set Michael Roberts' base offense level based on the amount of marijuana attributable to him during his involvement in the conspiracy; and (2) the district court erroneously determined Michael Roberts' role in the offense as that of an organizer or leader. He received two concurrent 245 month (20 years, 5 months) sentences with two concurrent terms of five years supervised release.
Defendant Charles Boston Jones argues his conviction should be reversed and remanded for retrial and/or resentencing because: (1) he was prejudiced by the jury's inability to compartmentalize the evidence; (2) the district court erred in denying a mistrial after the prosecutor's comment that the confidential informant would submit to a drug test if the defendants would do so; and (3) the district court improperly applied the Sentencing Guidelines as to the quantity of marijuana attributable to Jones. He received two concurrent 151 month (12 years, 7 months) sentences with two concurrent terms of five years supervised release.
We affirm the convictions, but remand the sentences for reconsideration.
On November 7, 1990, James Volner was arrested when he attempted to purchase roughly $200,000 worth of marijuana. In exchange for a recommendation of a ten-year cap on his sentence, he agreed to cooperate with DEA officials in identifying and securing the arrest of others involved in marijuana trafficking. Volner testified as follows. He was introduced to Michael Roberts in June of 1984 in El Paso, Texas. Roberts sold him sixty pounds of marijuana, and Volner hired someone to drive the marijuana to St. Louis. In July of 1984, Volner returned to buy 150 pounds, but actually purchased only eighty pounds because the remainder of the marijuana was wet. Roughly once a month from July to December, Volner would return to El Paso to buy quantities of marijuana. In December of 1984, Volner bought 350 pounds, but felt that the quality was poor and withheld payment. Volner found another supplier and purchased 200 pounds from him.
In January or February of 1985, Michael Roberts and Rodney Alexander visited Volner's home in Missouri to collect the money for the December shipment. Volner paid Roberts $45,000 and later that spring returned the remainder of the poor quality marijuana.
Roberts continued to supply Volner with marijuana, now taking responsibility for delivery in St. Louis. Some time after June of 1985, on two occasions Roberts and Alexander delivered 200 pounds to Volner. Volner refused the first shipment because it was wet.
In March of 1986, Volner purchased 125 pounds, and in October of 1986 he visited El Paso and purchased twenty pounds, which he drove back to St. Louis.
In 1987, Volner received shipments of roughly 200 to 400 pounds from Michael Roberts, delivered by his father, George Roberts, or Ken Sutton. Volner had no record of the quantity or frequency of these shipments.
In April of 1988, George Roberts delivered 400 pounds from Michael Roberts to Volner. On April 28, 1988, George Roberts was arrested in Louisiana for possession of marijuana. After the arrest, the quantities involved in the transactions increased to between 700 and 900 pounds. The marijuana was transported to the Dallas area, where it was transferred and taken to St. Louis. In the Dallas area, the marijuana would be stored at times on a farm and at times at Emmanuel Leeper's residence.
Using a 1989 date book, Volner testified that he received 700 pounds in February of 1989, 600 pounds in July of 1989, 220 pounds in October of 1989, and 250 pounds in December of 1989. Charles Jones, Alexander's step-father, made the July, October and December deliveries.
Jones made two deliveries for Michael Roberts to Volner in 1990 of an unidentified amount in April and 220 pounds in October.
On November 7, 1990, Volner was arrested when he attempted to buy marijuana from federal drug agents. He agreed to cooperate, and on November 8, 1990 taped a telephone conversation with Michael Roberts in which Volner told Roberts that he lost the money for the October shipment. Roberts stated that Jones was "on the road." On November 30 and December 2, 5, 6 and 11, Volner made taped calls to Roberts. In those calls, Roberts referred to the quantities supplied and prices of his source and to Jones' return to El Paso and inability to load his truck on December 6.
On December 12, 1990, a DEA agent accepted a delivery of 480 pounds from Jones at a truck stop in Missouri.
On December 13, Volner taped a call to Michael Roberts in which Roberts stated he would send Alexander to Dallas to collect payment for the shipment. On December 17, he taped another call in which they discussed the payment, and Roberts gave Volner Leeper's work telephone number.
A federal agent called Leeper and arranged to meet. In the evening of December 17, Leeper was arrested after agents spotted in the bed of his truck four boxes, which were found to contain approximately 150 pounds of marijuana.
Michael Roberts spoke with Volner's wife on December 18, and on December 27, 1990, Roberts and Alexander flew to St. Louis and attempted to contact Volner. On December 29, 1990, Roberts and Alexander were arrested in Arnold, Missouri. Jones was arrested on December 30, 1990.
In mid-December of 1990, Tom Kannaday, in exchange for a grant of immunity, agreed to provide information regarding his involvement in the marijuana business. He testified that he received and stored in his residence 200 pounds of marijuana from Michael Roberts in 1987. Later that year, he stored an additional 400 pounds that was delivered by George Roberts. He saw three more loads of at least 400 pounds each delivered in George Roberts' truck and three loads of 200 pounds each delivered in Ken Sutton's car. He further testified that "Max" made at least five deliveries to Virginia of at least 400 pounds each.
Kannaday further testified that he received marijuana from "Jay" (including a 150 pound delivery in New Mexico) and Leeper. On five occasions, he collected a total of at least 1,380 pounds and saw 1,000 pounds at Leeper's residence. Kannaday also transported currency payments to Michael Roberts on several occasions for a total of $1,535,000. He testified that at the time Roberts was selling marijuana for between $600 and $625 per pound.
On January 25, 1991, Alexander, George Roberts, Michael Roberts and Jones were indicted for conspiracy to possess marijuana with the intent to distribute it and to distribute marijuana. Michael Roberts and Jones were also charged with distribution of marijuana.
On March 27,...
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