U.S. v. Benson
| Decision Date | 12 January 2010 |
| Docket Number | No. 08-1131.,No. 08-1358.,08-1131.,08-1358. |
| Citation | 591 F.3d 491 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Nathaniel BENSON (08-1131) and Cynthia Shank (08-1358), Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Brian R. Laxton, Mertens, Laxton and Clement, PLLC, East Lansing, Michigan, Kenneth P. Tableman, Kenneth P. Tableman, P.C., Grand Rapids, Michigan, for Appellants. John C. Bruha, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee.
ON BRIEF:
Brian R. Laxton, Scott A. Mertens, Mertens, Laxton and Clement, PLLC, East Lansing, Michigan, Kenneth P. Tableman, Kenneth P. Tableman, P.C., Grand Rapids, Michigan, for Appellants. John C. Bruha, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee.
Before: SILER, GIBBONS, and GRIFFIN, Circuit Judges.
Defendants Nathaniel Benson and Cynthia Shank appeal their convictions and sentences based on their connection with a drug conspiracy. For the reasons that follow, we AFFIRM the judgments of the district court.
In early 1997, Shank (nee Valdez) began a relationship with Alex Humphry. Within the course of a few months, she moved in with Humphry and discovered that he was involved in distributing drugs.
In January 1998, police stopped the pair at a bus station in Dearborn, Michigan, while they were en route to Miami, Florida. When questioned by officers, the couple used false names and stated that they had no identification. After Shank provided consent to be searched, an officer discovered approximately $17,780 on her person. Agents seized the money for forfeiture which the couple did not contest.
In September 1998, Shank purchased a home at 1609 Comfort Street in Lansing, Michigan. She and Humphry used the home as a base of operations for their drug enterprise, receiving and processing shipments of marijuana and cocaine at the house and ultimately making sales. Shank assisted Humphry in the enterprise by counting money, receiving drug shipments, and placing the home, as well as vehicles and telephones, in her name.
Benson was identified as one of Humphry's main customers. Various witnesses testified that Humphry delivered cocaine to Benson's apartment, that Benson bought both marijuana and cocaine at the Comfort Street house, that Benson obtained multiple kilograms of cocaine from Humphry, and that Benson sold drugs obtained from Humphry, both in Humphry's presence and elsewhere. Co-defendant Alfred Williams also testified that he sold a half a kilogram of cocaine on behalf of Humphry to Benson, and saw Benson receive a kilogram directly from Humphry in March 2002.
In May 2002, an unidentified assailant shot Humphry outside the Comfort Street house. Shank transported Humphry to the hospital where he died. At the hospital, Shank lied to police officers about the location of the shooting. She became more truthful in subsequent interviews revealing the true location of the murder, and eventually the true size of the drug operation (both in terms of the quantity of drugs and the amount of cash in the Comfort Street home).
While Shank was at the hospital, other members of the operation took a bag with approximately $230,000 out of the Comfort Street house. Eventually, Shank received approximately $130,000 of that money. Upon searching the house, officers uncovered twenty kilograms of powder cocaine, a kilogram of cocaine base (crack cocaine), and forty pounds of marijuana. Officers also discovered approximately $40,000, additional evidence of the drug enterprise, and a number of firearms.
After Humphry's murder, a witness identified Benson as one of the assailants. Police officers arrested Benson in May 2002, and eventually charged him in state court with murder. Upon searching a Cadillac that Benson drove and was registered to Benson's girlfriend, Latosha Beard, officers discovered six empty boxes of baking soda. During a subsequent search of Benson's apartment at 900 Long Boulevard, officers discovered an empty kilogram wrapper similar to those at the Comfort Street house, approximately $1000, a shotgun, a .22 caliber rifle, and ammunition that did not correspond to either weapon. The state eventually dropped the murder charges and it no longer considers Benson a suspect.
A grand jury in the Western District of Michigan indicted thirteen defendants in connection with the Humphry drug conspiracy. Shank was charged with four counts of the indictment for conspiracy and possession with the intent to distribute drugs in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Benson was charged with one count of conspiracy in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. All defendants other than Shank and Nathaniel Benson pled guilty to various charges.
In October 2007, Shank and Benson were tried together. The jury found both guilty of all charges against them.
In count 1 of the indictment, the government charged Shank with conspiracy to possess and distribute a quantity of drugs "from in or about 1999 to at least May 9, 2002." Shank moved the court to exclude the evidence of the 1998 currency seizure. The district court denied the motion.
As a result of the district court's ruling, the government presented the testimony of Jonathon Burkeen—a co-defendant who pled guilty—that concerned drug activities by Shank prior to 1999. The government also presented the testimony of several witnesses concerning the 1998 currency seizure.
During trial, the government presented the testimony of numerous other co-defendants, including the fact that each had pled guilty to at least one charge in the indictment. At the end of the trial, the district court provided the following instruction to the jury:
You have heard that several witnesses were involved in the same crime alleged that the defendants are charged with committing. You should consider such a witness's testimony with more caution than the testimony of other witnesses, not convicting the defendants based on the unsupported testimony of such a witness standing alone unless you believe his testimony beyond a reasonable doubt.
The fact that some other witnesses have pleaded guilty to a crime is no evidence that the defendants are guilty. You cannot consider this against the defendants in any way.
Neither defendant objected to the timing or manner of the district court's instructions at trial.
Shank presented a defense claiming that Humphry kept her under constant duress during their relationship. The district court conditionally admitted testimony concerning out-of-court, co-conspirator statements and eventually found the statements admissible after an Enright inquiry. Benson did not make a Rule 29 motion for a judgment of acquittal at any stage during the trial proceedings and did not object to the testimony or statements of co-defendants as being inadmissible hearsay.
After Shank's conviction, the presentence investigation report (PSI) presented to the district court set Shank's advisory Guidelines range as 360 months to life in prison based on an offense level of 42 with a criminal history category of I. The PSI enhanced her base offense level of 38 (for the quantity of drugs) by 2 levels based on the possession of firearms and another 2 levels for obstruction of justice based on her testimony to establish her duress defense. Shank objected to both enhancements. The district court denied the firearms objection, but granted the obstruction of justice objection. The reduced offense level of 40 corresponded with a Guidelines range of 292 to 365 months.
The district court ultimately sentenced Shank to 180 months—120 months each concurrently for Counts 1, 2, and 3 of the indictment and 60 months consecutively for Count 4. This sentence represents a 112-month downward variance from the final calculated Guidelines range.
Benson's PSI set his advisory Guidelines range as 210 to 262 months in prison based on an offense level of 36 and a criminal history category of II. The PSI based Benson's initial offense level, 34, on drug quantities attributable to him by a preponderance of the evidence. Some quantities used in the report exceeded the maximums of the jury verdict. The court found that the amounts of cocaine, cocaine base, and marijuana attributed to Benson in his PSI were "higher" than the amounts the jury assessed, but "fair in light of all of the relevant conduct in this matter."
Benson also received a two-level enhancement for possession of a firearm, based on evidence that Benson possessed two handguns and the foreseeable use of the firearms found in Humphry's residence in the conspiracy. Over Benson's objection, the court found that the sentencing enhancement was proper based upon the guns and ammunition found in his apartment on Long Boulevard. Further, it found that since Benson was a part of the conspiracy, the guns found in Humphry's residence could also be attributed to Benson. Benson was sentenced to a within-Guidelines sentence of 216 months' imprisonment.
Shank appeals the district court's admission of evidence relating to the 1998 currency seizure as plain error. She argues that the district court's actions of admitting evidence of the 1998 currency seizure at trial amounted to a constructive amendment of the indictment because the seizure occurred approximately eleven months before the indictment's "in or about 1999 to at least May 9, 2002" time frame. However, the introduction of the 1998 currency evidence did not result in a constructive amendment.
"[W]here no specific objection is raised regarding a constructive amendment or a variance before the district court, we are limited to `plain error' review on appeal." United States v....
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