U.S. v. Camacho

• Decision Date: 11 February 2009
• Docket Number: No. 07-2536.,No. 07-2538.,No. 07-2441.,07-2441.,07-2536.,07-2538.
• Citation: 555 F.3d 695
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Emanuel Carlos CAMACHO, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Randy A. Knaub, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Jeffrey Leonard Romero, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

555 F.3d 695

UNITED STATES of America, Plaintiff-Appellee, v. Emanuel Carlos CAMACHO, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Randy A. Knaub, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Jeffrey Leonard Romero, Defendant-Appellant.

No. 07-2441.

No. 07-2536.

No. 07-2538.

United States Court of Appeals, Eighth Circuit.

Submitted: April 14, 2008.

Filed: February 11, 2009.

Michael T. Levy, argued, Omana, NE, Alan Stoler, John Vanderslice, for appellant.

Sara Elizabeth Fullerton, argued, AUSA, Lincoln, NE, for appellee.

Before LOKEN, Chief Judge, JOHN R. GIBSON, and MELLOY, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Emanuel Camacho, Randy Knaub, and Jeffrey Romero were jointly indicted on a single count each of conspiracy to distribute a controlled substance in violation of 21 U.S.C. § 846. Each was convicted; Camacho and Knaub for conspiracy to distribute marijuana and cocaine, and Romero for conspiracy to distribute marijuana. All three argue on appeal that the district court¹ erred by failing to find a violation of a sequestration order with respect to the government's two primary witnesses. Camacho and Knaub assert that the district court abused its discretion in allowing those same witnesses' hearsay statements to be admitted as the testimony of co-conspirators. Camacho also argues that the district court erred in admitting certain expert testimony, in failing to investigate alleged juror misconduct, in refusing to grant his new trial motion, and in calculating his sentencing guideline range. We affirm.

Doug and Lindsey Yoder were the government's primary witnesses at trial, providing details about four trips they made from Greeley, Colorado to Lincoln, Nebraska to transport marijuana and cocaine. Doug had been selling marijuana in Greeley for a year and a half before March 2005, when the conspiracy in this case was formed. Doug's main supplier was Jeffrey Romero, from whom he obtained one to three pounds of marijuana every three to four days. In March 2005, Romero introduced Doug to Emanuel Camacho because Doug and Camacho both owned pit bulls and Romero knew they were interested in breeding their dogs. After they met, Camacho asked Doug if he wanted to sell opium that Camacho would front. Doug was interested and began offering opium to his regular marijuana customers. He became indebted to Camacho as he had more difficulty selling the opium, and Camacho proposed that Doug transport drugs to Camacho's father, Phillip Camacho, in Lincoln as a way of working off his debt. Doug met Phillip Camacho and they agreed that Phillip would pay Doug's expenses for the trips but nothing beyond that. Doug's compensation would be in the form of his debt to Camacho being reduced. Romero also met with them because he was going to supply the marijuana that Doug would be transporting. About three days after this meeting, Camacho called Doug to say that the first package would be ready soon.

On May 19, 2005, Doug obtained a rental car and went to Camacho's house to pick up the package, which was gift-wrapped. Doug, Lindsey, and her son then drove to Lincoln. After arriving at a Burger King in Lincoln to which Camacho had provided directions, Doug called Phillip who told him to find a motel. Doug found a motel and Phillip later met him there. From the motel, Doug followed Phillip to a salvage business where they met Randy Knaub. Phillip and Doug retrieved the gift-wrapped package from the rental car and went inside. Knaub and Phillip opened the package in front of Doug. It contained marijuana, which they weighed. Although Doug did not see the weight on the scale or hear a number, he estimated that the marijuana weighed five pounds. Phillip expressed some concern about the quality but not the quantity of the marijuana, and Doug was then free to leave. Before Doug returned to Greeley, Phillip told him he should plan on making another trip within thirty days. Doug received $700 from Phillip for his rent in connection with this first trip, and Camacho deducted $200 from what Doug owed him and gave Doug $200 in expense money.

The Yoders' second trip to Lincoln was on June 4, and it followed the same pattern as the first trip beginning with Doug picking up a gift-wrapped package in Greeley from Camacho. When Phillip opened the package, he was unhappy with the quality of the marijuana it contained and he accused Doug of having switched packages. Doug urged Phillip to call his son to verify that the package was the original one that Camacho had marked with X's over the seams to reveal if it had been opened. After making the call, Phillip apologized to Doug and asked him to bring higher quality marijuana the next time. He then sold Doug an ounce of cocaine and told Doug that his partner Knaub, whom Doug had met on his first trip, wanted to talk to Doug about also supplying him with drugs. Doug told Phillip that he was not interested in dealing with Knaub. Before Doug left, Phillip gave him $850 to cover his rent and his expenses for the trip.

Doug made arrangements for a third trip with Romero, Camacho, and Phillip. Romero was to deliver ten pounds of marijuana, and Romero and Camacho told Doug he would also be taking a second package. Doug was to be involved in transferring money for the first time. On July 14, Doug and Lindsey left for Lincoln after picking up two gift-wrapped packages from Camacho. The following day they went to Knaub's business with Phillip. Knaub opened the packages which contained a total of ten pounds of marijuana and a half kilo of cocaine. Knaub weighed the cocaine, gave half to Phillip, and took the other half along with the marijuana to another room. Knaub handed Doug an envelope with money in it, which was what Romero had told Doug to expect. Doug counted the money and found it was $100 short of the $3000 he had expected. Knaub was unable to get any more money, and in response to Doug's concern that he would be blamed for the shortage, Phillip made a phone call and assured Doug that everything would be alright. The Yoders returned to Greeley the following day and Doug delivered the money envelope to Romero.

About a week after his return, Doug had a conversation with Romero in which Romero urged him to stop his trips to Lincoln and said that he was no longer going to deal with Camacho or Phillip. Doug had already decided that a fourth trip would be his last because by then he would have paid off his $800 debt to Camacho at the agreed-upon rate of $200 per trip. Camacho called Doug on August 14 and Doug and Lindsey went to his house and retrieved another gift-wrapped package. They drove to Lincoln, arriving late, and Doug called Phillip from a motel the next morning. Phillip came to the motel and told Doug to arrange to have his room another night because Phillip had engaged a stripper and he wanted to spend some time with her. Doug went to the front desk to make the arrangements and to ask for more towels. When he returned to the room the stripper had arrived and Phillip had opened the package, which contained a half kilo of cocaine. Phillip, the stripper, Doug, and Lindsey all used cocaine and Doug and Lindsey also smoked marijuana that they had brought. About forty minutes after the partying started, a maid brought some towels to the room. Some time later there was another knock on the door, and Doug answered it to find Lincoln police officers who said they were investigating the smell of narcotics. The officers eventually entered the room and found the opened package. An officer asked Phillip's permission to look in it and, after seeing its contents, placed everyone in the room under arrest.

Doug was incarcerated for a few months, but Lindsey was released the following day. She went home to Greeley for a time and returned to Lincoln in early October 2005. Doug entered into plea agreements in December 2005 with state and federal prosecutors in which he pled guilty and was sentenced to five years' probation in state court for one count of delivery of cocaine. No federal charges were filed against him, but in return he was to cooperate with the investigation and testify if need be. Lindsey also entered into an agreement with federal prosecutors in which she agreed to cooperate with law enforcement in return for not being charged.

Camacho, Romero, and Knaub were jointly tried in December 2006, but that trial ended in a mistrial. A second jury trial ended with all three being convicted of one count of conspiracy to distribute narcotics. Camacho was sentenced to 121 months' incarceration, Knaub to 63 months, and Romero to 40 months.

I.

Doug and Lindsey Yoder's testimony comprised the bulk of the government's case in chief, with Doug being the first of the two to testify. Neither was present in the courtroom during the other's testimony. At the beginning of Lindsey's cross-examination by Romero's counsel, however, it became clear that she and Doug had discussed their testimony with each other and that she had refreshed his memory on some details. She admitted that the prosecutor had told her not to discuss her testimony with her husband and that she had knowingly ignored the admonition. All three defense counsel moved to strike the Yoders' testimony, and Camacho's counsel made an alternative motion for a mistrial. The relief they requested was for what they asserted to be a violation of the court's sequestration order entered at the beginning of the trial. The prosecutor expressed her belief that a violation had occurred as well, but she argued that neither witness's testimony had been affected by their conversations.

Although the parties referred to a sequestration order, the record reveals that the district court entered no such order. Before the jury was chosen, Knaub's counsel twice made what he referred to as a formal motion to sequester the trial witnesses. The court did not respond the first time, but the second time the...