U.S. v. Barth
| Decision Date | 14 September 2005 |
| Docket Number | No. 04-1747.,No. 04-1609.,No. 04-1681.,04-1747.,04-1609.,04-1681. |
| Citation | 424 F.3d 752 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Shawn Leo BARTH, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Rosalio Guitron-Vargas, also known as Gregorio Arechigo Velasco, also known as Josue Efrain Nino, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Nancy Elizabeth Ferneau Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Gary J. Hill, argued, El Paso, TX, for appellant Barth.
Rick L. Volk, Asst. U.S. Atty., Bismarck, ND, for appellee.
Before MURPHY, HANSEN, and MELLOY, Circuit Judges.
This action is a consolidated appeal following the convictions of Shawn Leo Barth, Rosalio Guitron Vargas, and Nancy Elizabeth Ferneau. Each individual was found guilty of conspiracy to distribute and to possess with intent to distribute methamphetamine. Barth was also found guilty of possession with intent to distribute methamphetamine, distribution of methamphetamine, possession of marijuana with intent to distribute, possession of a firearm in furtherance of a drug trafficking crime, and being a felon in possession of a firearm or ammunition. In addition, Vargas was found guilty of distribution of methamphetamine, distribution of marijuana, and possession of a firearm by an illegal alien.
The consolidated appeals raise overlapping issues. Barth argues that: 1) the evidence established multiple conspiracies while the indictment alleged a single conspiracy; 2) the evidence was insufficient to support the conspiracy conviction; and 3) Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), requires the facts of his past convictions be submitted to the jury if they are used to enhance his sentence. Vargas argues that: 1) the evidence established multiple conspiracies, but the indictment alleged a single conspiracy; 2) the district court violated his rights under Federal Rule of Criminal Procedure 43 when it conducted a status conference outside of his presence; and 3) the district court erred when it failed to admonish the jury not to discuss the case when it recessed. Ferneau argues that: 1) the evidence was insufficient to support the conspiracy conviction; 2) the district court violated her rights under Federal Rule of Criminal Procedure 43 when it conducted a status conference without her present; 3) the court erred when it failed to admonish the jury not to discuss the case when it took recesses; and 4) the court erred in refusing to give Ferneau a minor participant reduction at sentencing. In addition, this court asked for supplemental briefing from all of the defendants regarding possible Blakely claims. We affirm the judgment of the district court in each appeal.1
This case arises out of an alleged conspiracy to distribute drugs, in particular methamphetamine, in the Bismarck, North Dakota area. Viewing the evidence in a light favorable to the government shows the following. Initially, the drugs were obtained in Iowa, but eventually they were brought into North Dakota from Washington state. The distribution activity principally involved Shawn Barth, Rosalio Vargas, Nancy Ferneau, and persons they employed to transport drugs on their behalf. The defendants purchased methamphetamine and marijuana to sell in Bismarck and the surrounding area. Ferneau often permitted her residence to be used as a distribution point. These events occurred between 1999 and 2003.
Barth's efforts to distribute methamphetamine in Bismarck began when he and Blaine Martinez purchased methamphetamine in Iowa and transported it to Bismarck. On each trip, they purchased one pound of methamphetamine. Upon returning to North Dakota, they divided the drugs into smaller quantities, distributed them, and split the proceeds.
In February 2000, Martinez informed Barth that Vargas had methamphetamine available for purchase. Barth met Vargas at Nancy Ferneau's home in Bismarck, where Martinez also resided at that time. Martinez and Barth purchased methamphetamine from Vargas at this meeting, and approximately four or five other times between February 2000 and April 2000, in one pound quantities.
In May 2000, Vargas hired Rigoberto Fernandez-Castillo ("Fernandez") to transport methamphetamine and marijuana from Washington state to Bismarck for later sale by Barth and Ferneau in exchange for $1,000 per trip. Vargas supplied the vehicles for the transportation of the drugs.
Fernandez subsequently made eight trips between Washington and North Dakota, and was accompanied by Vargas on three of them. On each trip he transported two pounds of methamphetamine and three to five pounds of marijuana. Vargas told Fernandez to bring the drugs to Ferneau's home so that Ferneau could assist in distributing the drugs from there. Each time, Fernandez brought the drugs to Ferneau's home. After Fernandez transported the drugs to Ferneau's home, Ferneau assisted Fernandez in dividing the drugs. Ferneau would then make telephone calls, and shortly thereafter individuals would come to pick up the drugs. Ferneau would provide various buyers with marijuana, methamphetamine, or both. During this process, Fernandez never witnessed the actual exchange of drugs between Ferneau and Barth. However, he did observe Barth enter Ferneau's home and go into the room where the drugs were kept. Fernandez also witnessed exchanges of drugs, weapons, and other items between Vargas and Barth. After all of the drugs were sold, Ferneau would pay Vargas for the drugs. On some occasions Vargas would arrange for Fernandez to bring the money back to Vargas's home in Washington.
Vargas, Barth, and Ferneau continued to obtain and distribute drugs throughout 2000. Fernandez continued to act as courier until his arrest for transporting drugs in September 2000.
On April 5, 2001, Vargas was arrested in Mandan, North Dakota. He was prosecuted for an immigration violation and deported on June 29, 2002. Vargas returned to the United States later that summer. Upon his return, Vargas and Barth immediately resumed distributing methamphetamine.
The following year, Barth moved from Bismarck to Oliver County, North Dakota. There, Barth moved in with a dairy farm worker named William Canada. Barth brought Vargas and another Hispanic male with him to Canada's residence. Barth "fronted Canada" methamphetamine, meaning Canada had to sell the methamphetamine and then repay Barth from the proceeds. In November 2002, Canada was arrested on unrelated charges. Canada gave Barth the keys to his residence to return to the property owner. Instead of returning the keys, Barth moved into the residence in Oliver County.
Barth continued to distribute methamphetamine from Canada's residence. In March 2003, Barth sought the assistance of James Chrisikos to distribute methamphetamine. Barth offered to provide Chrisikos a vehicle and money if he sold drugs for Barth. Barth showed Chrisikos around the Canada residence. He showed him a utility trailer where he kept marijuana, methamphetamine, and a handgun.
On approximately March 24, 2003, Chrisikos, Ryan Brelje, and another man sought to purchase methamphetamine from Barth. Chrisikos went to the residence to make the purchase. When he arrived, he saw a white minivan outside the residence and Barth meeting with two people. During the meeting, Barth and the two people exchanged something. Following the exchange, Barth entered Chrisikos's vehicle and gave Chrisikos a package of methamphetamine. He told Chrisikos that the drugs had just arrived and that he had paid ten to fifteen thousand dollars for the drugs. Barth gave Chrisikos one ounce of methamphetamine and some marijuana for his personal use and told Chrisikos to assist in distributing the rest of the drugs Barth had purchased.
Soon after this purchase, the police detained Ryan Brelje. At that time, Brelje was in possession of approximately ten grams of methamphetamine. Brelje told the police about Chrisikos and his role in the distribution of methamphetamine. Based on this information, the police obtained a search warrant for Chrisikos's residence. At the residence the police found marijuana and methamphetamine. Following the search, the police interviewed Chrisikos.2 Chrisikos told the police about Barth, the Oliver County residence, the drugs, the trailer, and the handgun.
Based on the information from Chrisikos, the police pursued Barth and Vargas. The police executed a search warrant on Canada's residence, where Barth was living. Inside the utility trailer Barth had shown to Chrisikos, officers found a handgun and ammunition, marijuana, and other drug paraphernalia. The trailer belonged to B & B Roofing, a business run by Barth's brother, for which Barth periodically worked. Inside the residence and a pickup truck at the residence, the officers found marijuana, methamphetamine and titles to cars purportedly involved in the distribution of the drugs. The next day, Deputy Sheriff Dion Bitz stopped Vargas in one of the cars for which officers had found title in their search of the residence. When questioned, Vargas claimed that the car belonged to his nephew, Juan Quintero, and that he did not know Barth. Vargas admitted that he was in the United States illegally.
On July 9, 2003, Barth, Vargas, Ferneau, Fernandez, and Thomas Pinks, Jr. were named in a multi-count indictment. The first count alleged that between August 1, 1999 and the date of the indictment, the defendants and "others" conspired to possess methamphetamine with an intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 846, and 18 U.S.C. § 2. Counts two through six alleged that Barth: 1) possessed methamphetamine mixture with intent to distribute; 2) actually distributed methamphetamine; 3) possessed marijuana with an intent to distribute; 4)...
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