U.S. v. Bertling

• Citation: 510 F.3d 804
• Decision Date: 26 December 2007
• Docket Number: No. 07-1267.,No. 06-4097.,06-4097.,07-1267.
• Parties: UNITED STATES of America, Appellant, v. Vincent BERTLING; Karl Raymond Bertling, Appellees. United States of America, Appellee, v. Vincent Bertling, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

510 F.3d 804

UNITED STATES of America, Appellant, v. Vincent BERTLING; Karl Raymond Bertling, Appellees.

United States of America, Appellee, v. Vincent Bertling, Appellant.

No. 06-4097.

No. 07-1267.

United States Court of Appeals, Eighth Circuit.

Submitted: October 16, 2007.

Filed: December 26, 2007.

Chad Primmer, argued, Council Bluffs, IA (Robert L. Simka, Sioux City, IA, on the brief), for Vincent Bertling.

Rees Douglas, argued, Sioux City, IA, for Karl Bertling.

Forde Fairchild, AUSA, argued, Sioux City, IA, for U.S.

Before LOKEN, Chief Judge, GRUENDER and BENTON, Circuit Judges.

GRUENDER, Circuit Judge.

A jury found brothers Vincent Bertling and Karl Raymond Bertling guilty of one count of conspiracy to corruptly endeavor to influence, obstruct and impede justice in violation of 18 U.S.C. §§ 1503 and 371. The jury also found Vincent guilty of three counts of being an unlawful user of controlled substances in possession of firearms and Karl guilty of one count of being an unlawful user of controlled substances in possession of ammunition, all in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2). The district court granted Vincent's and Karl's motions for a new trial on the conspiracy verdict and sentenced them on the remaining verdicts. The Government appeals the district court's decision to grant Vincent and Karl a new trial, and Vincent appeals his sentence. We affirm in part and reverse in part.

I. BACKGROUND

On December 2, 2005, Vincent Bertling was arrested on three charges of being an unlawful user of a controlled substance in possession of firearms in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2). On December 7, 2005, Vincent's attorney learned that he had a conflict of interest with two potential witnesses against Vincent, Joanna Gillaspie and David Gillaspie, and he told Vincent that the Gillaspies were expected to be witnesses and of his resulting conflict. That same day, Vincent spoke with his brother, Karl, on a telephone from jail. At the beginning of the conversation, both parties were informed that the conversation would be recorded. Within the first minute of the conversation, Vincent told Karl that Joanna and David would be testifying against him. The following exchange then occurred:

Karl: Oh, man, ohhh. Alright, It's time to get a murder on (or) it's time to get a murder run.

Vincent: Huh?

Karl: I said it's time to get a murder on (or) it's time to get a murder run.

Vincent: Something.

Karl: Um hum. Yeah. I got an enforcer.

Government Trial Exhibit 1001A at 2.¹ Immediately after these statements, Vincent told Karl that Joanna lived at her grandmother's house, further described as a lime-green house on G Street. Vincent also said that he thought Joanna worked at the Wal-Mart in South Sioux, but Karl corrected him and said she worked at Qwest. Vincent then told Karl that he saw other people in jail whom Joanna turned in to the police and commented that "she's ratting out everybody." Next, Vincent told Karl he was not certain whether another individual who hung out with Joanna, Matt, was assisting the Government. When Karl then said he had some "thingies on [his] to do list," Vincent repeated he was not "one-hundred percent sure what Matt's involvement [was], if any." This exchange all occurred within the first four minutes of the conversation. Finally, three minutes later, Vincent again mentioned Joanna and said that "it's Joanna that's trying to get me in trouble." After this, the brothers continued to talk about apparently unrelated matters for another eight minutes before the call terminated.

Based on this conversation, the Government obtained a superceding indictment, charging Vincent and Karl with conspiracy to corruptly endeavor to influence, obstruct and impede justice by murdering or otherwise intimidating witnesses in violation of 18 U.S.C. §§ 1503 and 371. The superceding indictment also included the initial three charges against Vincent for unlawful possession of firearms. A final count charged Karl with being an unlawful user of controlled substances in possession of ammunition in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2).

In September 2006, the Government presented its case against Vincent and Karl in a joint jury trial. To support the conspiracy count, the Government played the recording of the December 7, 2005 phone conversation between Vincent and Karl. Darin Maas and Amber Watson testified that Karl had referred to Maas as his "enforcer." Although Maas testified that Karl said it in a joking or nonchalant manner, Maas did not believe it was a joke inasmuch as he believed it was said to scare two people to whom Karl had entrusted drugs to sell. Amber Watson also testified that Karl told her he was going to take care of the witnesses testifying against Vincent. To prove the unlawful firearm possession counts, the Government called Joanna and David Gillaspie, who testified that they sold methamphetamine to Vincent and saw him use it. Watson testified that Vincent used drugs with her and bought drugs from the Gillaspies and that Vincent showed his handgun to her, telling her that he could take care of himself. Watson then testified that Karl sometimes carried a firearm and once said he had "no problems shooting first and asking questions later," if something went wrong in a drug deal.

After a four-day trial, the jury found Vincent and Karl guilty on all counts. In finding Vincent and Karl guilty of the conspiracy charge, the jury found that ten overt acts in furtherance of the conspiracy occurred during their December 7, 2005 phone conversation, including Karl's statement that "I got it in for her" or "I got an enforcer," Vincent's description of the house where Joanna lived, Vincent and Karl's discussion of where Joanna worked, and Karl's statement that he "got a couple more little thingies on [his] to do list."

After the verdict, Vincent and Karl filed motions for judgment of acquittal and for a new trial. The district court denied the motions for judgment of acquittal holding that "there [was] sufficient evidence to support the defendants' convictions." The court then granted both motions for a new trial on the conspiracy verdicts but denied Vincent's motion for a new trial on his unlawful possession of firearms verdicts. The court held that "the evidence weigh[ed] against a finding beyond a reasonable doubt that Vincent and Karl Raymond entered into a conspiracy to corruptly endeavor to influence witnesses" because the phone conversation was "simply too vague and nebulous." Instead, the district court considered the brothers' claimed non-violent histories and the tone of the conversation and concluded that the brothers were merely joking or venting frustrations, not conspiring to impede justice by murdering or intimidating witnesses. The district court also found that their discussion about where witness Joanna Gillaspie lived and worked was for "an innocent purpose," such as a "matter of identification." The district court did not find any evidence beyond the conversation supported the conspiracy verdict. Thus, it found that a new trial was necessary because the jury's verdict resulted in a miscarriage of justice.

At his sentencing hearing, Vincent argued that he was entitled to a reduction of his base offense level pursuant to the sporting purposes or collection reduction of § 2K2.1(b)(2) of the United States Sentencing Guidelines. In refuting this argument, the Government recounted Watson's trial testimony that Vincent once showed her his handgun and said he could take care of himself. The district court found that Watson's testimony was sufficient to prove that Vincent possessed the handgun for self-protection. The district court acknowledged that Vincent attempted to discredit Watson's testimony by arguing that she was unsure when this occurred and she had little contact with Vincent in the past few years. However, the district court found her testimony to be credible and held that the sporting purposes or collection reduction did not apply because Vincent did not possess the handgun solely for those purposes.

The district court sentenced Vincent to 30 months' imprisonment and three years' supervised release on each of his three unlawful possession of firearm counts to run concurrently. The district court sentenced Karl to 18 months' imprisonment and three years' supervised release on his unlawful possession of ammunition conviction. The Government appeals the district court's decision to grant the motions for a new trial on the conspiracy count, and Vincent appeals his sentence based on the district court's refusal to grant a sporting purposes or collection reduction under U.S.S.G. § 2K2.1(b)(2).

II. DISCUSSION

A. New Trial

We review a district court's decision to grant a new trial for an abuse of discretion. United States v. Johnson, 474 F.3d 1044, 1050 (8th Cir.2007). A district court abuses its discretion if it "fails to consider a factor that should have been given significant weight, considers and gives significant weight to an improper or irrelevant factor, or commits a clear error of judgment in considering and weighing only proper factors." United States v. Dodd, 391 F.3d 930, 934 (8th Cir.2004).

When a district court considers a motion for a new trial, it may grant the motion if a miscarriage of justice would occur were the verdict to stand. United States v. Campos, 306 F.3d 577, 579 (8th Cir.2002). The decision is "within the sound discretion of the trial court. While the district court's discretion is quite broad—it can weigh the evidence, disbelieve witnesses, and grant a new trial even where there is substantial evidence to sustain the verdict—there are limits to it." Id. (internal quotation and citation omitted). "Motions for new trials based on the weight of the evidence are generally disfavored," and the district court must grant a new trial "sparingly and with caution." Id. (internal quotation omitted). A...