U.S. v. Apker, 8:90CR127-1.
| Decision Date | 05 November 2002 |
| Docket Number | No. 8:90CR127-1.,8:90CR127-1. |
| Citation | 229 F.Supp.2d 948 |
| Parties | UNITED STATES of America, Plaintiff, v. Gary D. APKER, Defendant. |
| Court | U.S. District Court — District of Nebraska |
Laurie M. Barrett, Assistant United States Attorney, Michael G. Heavican, United States Attorney, Stephen L. Von Riesen, Assistant United States Attorney, Omaha, NE, for Plaintiff.
Martin J. Kushner, Kushner Law Office, David R. Stickman Federal Public Defender's Office, Omaha, NE, for Defendant.
This matter is before the court for findings on remand from the Eighth Circuit Court of Appeals, Filing No. 1744. See United States v. Apker, 241 F.3d 1060, 1063 (8th Cir.2001). The Eighth Circuit Court of Appeals reversed the earlier judgment of the district court and remanded the action for further proceedings. Id. This court was directed to conduct an evidentiary hearing and to determine whether Apker's dismissed drug trafficking charges1 were more serious than the 18 U.S.C. § 924(c) charge, based on a comparison of the actual penalties that would have been assessed. Id. The Court of Appeals noted that this court would find it necessary to address several potential sentencing issues, including, but not limited to, whether or not the $230,346 in cash found in Apker's safe should be converted to a drug quantity for sentencing purposes, whether or not an adjustment for Apker's role in the conspiracy offense should be assessed, whether or not Apker has the requisite prior drug felony convictions to trigger a mandatory life sentence (or perhaps the career offender guideline), and whether or not Apker could qualify for an acceptance of responsibility adjustment, among others. Id. at 1063 n. 3. An evidentiary hearing was held on August 1, 2001.
Based on the evidence adduced at the hearing and other relevant information, the court finds as follows. Gary Apker and other members of the Hell's Angels Motorcycle Club of Omaha were indicted in a 33-count superseding indictment as part of a large drug trafficking conspiracy that operated from March 1988 to October 1990. Evidentiary Hearing Exhibit (hereinafter, "Hrg.Ex.") 17 at 57 (indictment). The indictment was the result of an investigation by law enforcement officers that included surveillance, pen registers, confidential informants, wiretaps, and eventually the planting of "bugs" in Apker's house. Evidentiary Hearing Transcript (hereinafter, "Hrg.Trans.") at 24-30.
Search warrants were executed simultaneously at the homes of all the defendants on Oct. 17, 1990. See United States v. Lucht, 18 F.3d 541, 548 (8th Cir.1994). The record establishes that "through electronic surveillance of Apker's house, officers knew that Apker had completed a drug transaction within hours of the search; he had a hiding place for his drugs which he considered undetectable; and he liked the elevated location of his home because he could survey his surroundings." Id. Further, the record shows that "weapons had been found in Apker's home on two previous searches; he had a prior conviction for being a felon in possession of a firearm and a prior arrest for assault with a firearm; and he had a motion detector outside of his house." Id.
During the search of Apker's house, a Ruger .22 caliber semiautomatic pistol with a silencer, approximately ten pounds (4536 grams) of methamphetamine, twenty pounds of a cutting agent, and approximately $232,000 in cash were seized from a hidden safe in the basement of the residence. Hrg. Trans. at 28; 83. "The firearm and homemade silencer were found in a large compartment beneath the cement floor under a bathroom vanity in the basement level garage, wrapped in a cloth bag and surrounded by most of the money and drugs." United States v. Friend, 50 F.3d 548, 552 (8th Cir.1995), vacated and remanded 517 U.S. 1152, 116 S.Ct. 1538, 134 L.Ed.2d 643 (1996) (Bailey issue) ("Friend I").
In addition, the search of co-conspirator Egan's home revealed sixty grams of methamphetamine, a cutting agent, a scale, and a loaded handgun. Lucht, 18 F.3d at 552. Another pound of methamphetamine (436.5 grams) was found in the trunk of co-conspirator Fred Friend's car. Friend, 50 F.3d at 550; Hrg. Ex. 14. Police also found 3.5 grams of methamphetamine on Friend's person. Friend, 50 F.3d at 550.
Evidence of intercepted conversations shows that Apker had a "drug distribution business." Id. The evidence in Apker's co-conspirators' trials revealed "one conspiracy, centered around Apker as its supplier, with one criminal objective: to distribute methamphetamine in the Omaha area." Id. at 552. Moreover, there is evidence of a "wide-ranging discussion by Friend and Apker of their long-standing methamphetamine manufacture and distribution activities." Friend I, 50 F.3d at 553. It has also been established "[f]rom listening to the intercepted conversations between Egan and Apker, [a] jury could have rationally determined that Apker fronted drugs to Egan for distribution and that Egan advised Apker about laundering money." Lucht, 18 F.3d at 552. Apker has been variously referred to in connection with the conspiracy as a "major supplier," Friend I, 50 F.3d at 553, and "lead conspirator," United States v. Friend, 101 F.3d 557, 558 (8th Cir.1996) ("Friend II"). Evidence also shows that Apker directed the activities of others. Hrg. Exs. C003, C024, C028, C015 (transcripts of recorded conversations). It is not disputed that the conspiracy involved more than five people. Hrg. Trans. at 133.
The sum of $232,000 in cash was found at Apker's home in the safe with the methamphetamine. Hrg. Trans. at 28. Apker had no job at the time and his earnings were minimal. Hrg. Trans. at 103, 15; Hrg. Exs. 3, 4, 5, 6, 7, 8, and 9 (tax returns). The seized currency was forfeited to the government. Hrg. Ex. 15 (Order of Forfeiture). Motorcycles valued at approximately $30,000 were also forfeited to the government. Hrg. Ex. 22, ¶ 14 (Supplemental Presentence Investigation Report, hereinafter, "PSR"). The evidence shows that the seized money was derived from drug sales. Hrg. Trans. at 30-40, Hrg. Exs. C015, C028 ().
Intercepted conversations showed that Apker had sold a pound of methamphetamine to co-conspirator Fred Friend for $6,250 just before the search of Apker's residence. Hrg. Trans. at 48, 57; Hrg. Exs. 13 and C028. A pound of methamphetamine was seized from the trunk of Fred Friend's car shortly thereafter. Hrg. Trans. at 48; Hrg. Ex. 14; Friend I, 50 F.3d at 550. Evidence indicates that the Fred Friend transaction was a wholesale sale. Hrg. Trans. at 48. A handwritten note hidden with and seized along with the methamphetamine also supports a wholesale price of $6,250 for the methamphetamine. Hrg. Ex. 13. Agent Richard Heideman of the FBI testified that the $232,000 equates to approximately seventeen kilograms of methamphetamine, based on a value of $6,250 per pound at the wholesale level. Hrg. Trans. at 59-62; Hrg. Ex. 21.
The evidence also shows that Apker sold drugs at the retail level as well as the wholesale level. Hrg. Trans. at 61. In the supplemental PSR, the probation officer determined that the seized money would equate to twenty-nine and one-half kilograms of methamphetamine, apportioning 75% to wholesale and 25% to retail.2 See Hrg. Ex. 22, ¶¶ 15 and 16. Agent Heideman testified that the retail price of the methamphetamine in 1990 was approximately $1,000 per ounce or $12,000 per pound. Hrg. Trans. at 59. Evidence of intercepted conversations sets the retail value at $20,000 per pound. Id. at 58-59; Hrg. Ex. 22, ¶ 12.
The evidence also shows that Apker had several felony drug convictions at the time he was indicted in this case.3 Hrg. Trans. at 13, Hrg. Exs. 1 and 2. Apker has also been implicated in several other prosecutions. See State v. Farrell, 242 Neb. 877, 497 N.W.2d 17, 18 (1993) (); State v. Pierson, 238 Neb. 872, 472 N.W.2d 898, 901 (1991) (); State v. Mathews, 205 Neb. 709, 289 N.W.2d 542, 544 (1980) (). Apker also has a history of other criminal conduct. Hrg. Ex. 17 at 189-90 (Presentence Investigation Report dated April 30, 1992) ("Original PSR") (outlining Apker's criminal conduct).4
In addition, the government has shown that, pursuant to 21 U.S.C. § 851(a),5 it filed informations seeking an enhanced penalty by reason of a prior conviction against those co-conspirators, Dale Ray Haley and Roger A. Wright, who did not enter pleas of guilty to the drug or weapons charges. Hrg. Ex. 16, Vol. OO at 7271 and 7306; United States v. Apker, 8:90CR127, Filing Nos. 1038 and 1039 (D.Neb. March 19, 1992). The government asserts that it would have filed such an information against Apker had he not entered a plea of guilty to the weapons charge. Hrg. Trans. at 14-15.
The Eighth Circuit has directed this court to make findings in the realm of the hypothetical. The court is to determine what Apker's actual sentence would have been under the United States Sentencing Commission, Guidelines Manual (Nov. 1989) ("Guidelines") if he had been convicted of the drug trafficking offenses. Under the Guidelines, the most serious offense is the one with the higher offense level. United States v. Halter, 217 F.3d 551, 554 (8th Cir.2000).
Under the Guidelines, the base offense level is determined with reference to a drug quantity determination. See U.S.S.G. § 2D1.1. The quantity of drugs properly attributable to Apker for sentencing purposes would be the amount that is reasonably foreseeable to Apker within the scope of the criminal activity jointly undertaken by Apker and his co-conspirators. Pruitt v. United States, 233 F.3d 570, 572 (8th Cir.2000). The government can properly prove the...
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