U.S. v. Crumley

• Citation: 528 F.3d 1053
• Decision Date: 12 June 2008
• Docket Number: No. 06-1974.,No. 06-2708.,06-1974.,06-2708.
• Parties: UNITED STATES of America, Plaintiff/Appellee, v. Ann Marguerite CRUMLEY, Defendant/Appellant. United States of America, Plaintiff/Appellee, v. David Jon Myers, Defendant/Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

528 F.3d 1053

UNITED STATES of America, Plaintiff/Appellee, v. Ann Marguerite CRUMLEY, Defendant/Appellant.

United States of America, Plaintiff/Appellee, v. David Jon Myers, Defendant/Appellant.

No. 06-1974.

No. 06-2708.

United States Court of Appeals, Eighth Circuit.

Submitted: May 15, 2007.

Filed: June 12, 2008.

Thomas C. Plunkett, argued, St. Paul, MN, for appellant, Crumley.

Ira W. Whitock, argued, St. Paul, MN, for appellant, Myers.

David P. Steinkamp, argued, Assistant U.S. Attorney, Minneapolis, MN, for appellee.

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

JOHN R. GIBSON, Circuit Judge.

Ann Crumley and David Myers appeal their convictions, following a joint jury trial, in which they were convicted of conspiracy to distribute methamphetamine, 21 U.S.C. § 846, and aiding and abetting the possession of methamphetamine with intent to distribute, 21 U.S.C. § 841(a)(1). In addition, Myers was individually convicted of possessing a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). Crumley was sentenced to 151 months' imprisonment. Myers was sentenced to 240 months. On appeal, they both argue that they were deprived of their constitutional rights to a fair trial when the district court¹ refused to sever their cases from each other. Crumley argues that the prosecutor engaged in numerous acts of misconduct in his opening and closing statements and that the district court erred, during sentencing, when it refused to grant her a downward departure, denied her a reduction for acceptance of responsibility, and found that she was ineligible for the safety-valve, USSG § 5C1.2. Myers argues that there was insufficient evidence to support his convictions. We affirm the convictions and sentences.

On February 7, 2005, police were surveilling the residence of Jennifer Zylka and Brian Rinker, whom they believed to be involved in narcotics trafficking. Rinker was observed leaving the residence in a 1999 silver Pontiac Grand Prix. Police followed Rinker to West Duluth, Minnesota, where he stopped at the residence of David Myers and Ann Crumley, who were also under investigation for narcotics trafficking. Police observed Rinker enter the residence for a brief time before returning to the Grand Prix. He drove away and they followed him out of the area, then pulled him over, searched the car, and arrested him pursuant to a warrant. Police seized an ounce of methamphetamine and $2,900 from Rinker.

After Rinker's arrest, police executed a search warrant on the Crumley/Myers residence, which led to the arrest of both Myers and Crumley. In the cabinet of the master bathroom, police discovered a Brink's safe, which contained methamphetamine and approximately $51,000 in cash. Police also seized a Tech-9 semi-automatic pistol from a box inside a closet in the master bedroom. In the master bedroom itself, police found and seized a vacuum sealer, a box of small ziplock bags, and a digital scale, which Agent May testified are commonly used for packaging and distributing narcotics.

According to Agent May, Crumley admitted to possessing methamphetamine and directed him to a black briefcase in her Ford Taurus. He seized the briefcase along with its contents, which included methamphetamine, $8,240 cash in several white envelopes, and a digital scale. The briefcase also contained personal papers and receipts belonging to David Myers.

Agent May also testified that before he left the residence Crumley indicated a willingness to cooperate and assist with the investigation, but that she did not contact Agent May again until February 14, 2005, when Agent May ran into her on the street. Agent May asked why she had not contacted him and whether she still planned to provide assistance. Crumley told him that she was in contact with her drug source and expected the source to call soon. She received the call during their conversation and Crumley agreed to meet with the drug source to conduct a controlled buy under Agent May's supervision. She also agreed to allow May to search her vehicle, which contained $11,185 in cash, packaged in small white envelopes. The sting lead to the arrest of Jorge Sainz-Navarette and the seizure of over 314.5 grams of methamphetamine. In Sainz-Navarette's wallet, police seized a scrap of paper with the name "Dave" written on it, along with a home telephone number registered to the defendant, David Myers.

I.

A. Crumley's Severance Arguments

Crumley argues that she was prejudiced by the district court's refusal to sever her trial from Myers's. Crumley moved for severance before trial, but she failed to renew that motion at any time thereafter. The threshold question is whether we should review the refusal to sever for an abuse of discretion or for plain error. "This circuit has rejected the rigid requirement that the defendant must renew [her] severance motion after the close of the government's case, and instead we consider the actions taken by the defendant in light of the purposes for requiring the motion's renewal."² United States v. Dobin, 938 F.2d 867, 869 (8th Cir.1991). There are two purposes for requiring renewal of a motion to sever: 1) to show that the appealing party does not consent to the joinder, and 2) to give the trial court an opportunity to rule on the matter in its concrete form. Id. In this case, our primary focus is the second purpose. A renewed motion for severance is unnecessary when the facts raised by a defendant in his or her pretrial motion do not materially differ from the facts that are admitted at trial. However, when the trial produces a material change in the facts, "the motion to sever must be renewed so that the trial court can rule on the motion with the benefit, and in light of, knowledge of the true (and changed) situation." Id.

The district court was not given a chance to address Crumley's arguments because she never raised them before that court. On appeal, Crumley presents both new facts and entirely new legal arguments. In her pretrial motion, Crumley argued that she expected the government to introduce evidence of prior bad conduct by Myers, which, she argued, would prejudice her. She does not raise this argument on appeal, however. And, in fact, only one of the allegedly prejudicial bad acts was ultimately admitted at trial. Rather, Crumley makes two new arguments on appeal: that her fair trial rights were violated by the repeated attempts of Myers's counsel to shift the blame to Crumley, and that she was deprived of the right to testify in her own defense because, if she testified, she would face an accuser, Myers, possessing special knowledge as a result of their cohabitation. Just as the district court must be given the opportunity to reconsider a motion after the introduction of new and changed facts, it must also be given an opportunity to consider newly raised legal arguments. Therefore, we review for plain error.³

Under the plain error standard of review, the defendant must "show, in addition to an abuse of discretion by the district court, prejudice affecting his or her substantial rights and some extraordinary reason for us to reverse for such error despite [his or her] failure to raise the issue in the trial court." Dobin, 938 F.2d at 869 (internal quotation marks omitted). "Once defendants are properly joined under Rule 8, there is a strong presumption for their joint trial." United States v. Flores, 362 F.3d 1030, 1039 (8th Cir.2004). To overcome the presumption, defendants must demonstrate severe or compelling prejudice as a result of the district court's refusal to grant severance. Id. "The mere fact that one defendant tries to shift blame to another defendant does not mandate separate trials, as a codefendant frequently attempts to point the finger, to shift the blame, or to save himself at the expense of the other." Id. at 1039-40 (internal quotation marks and citations omitted).

Crumley's first complaint, that Myers prejudiced her by attempting to shift the blame, is the same argument that was rejected in Flores. We also find guidance in Flores with regard to her second complaint — that she was denied her right to testify because she feared being cross-examined by Myers's counsel, armed with information only his client would know. Crumley was not deprived of her right to testify; she chose not to take the stand. A defendant does not have the right to prevent a co-defendant from eliciting damaging testimony from her on cross-examination. Id. at 1041. This is not a danger that severance was designed to prevent. Id. It is simply another variation of the argument that she was prejudiced by Myers's attempt to blame her for the allegedly illegal activity. Consequently, any prejudice Crumley may have suffered by her tactical decision not to testify fails to meet the high threshold required, under plain error review, to justify reversal.

B. Myers's Severance Argument

We now turn to Myers's argument that separate trials were necessary in order for him to call Crumley as a witness. We review his appeal for plain error because, although he raised the same argument in his pretrial motion, he now relies on facts not raised to the district court during the pretrial hearing. Dobin, 938 F.2d at 869. The district court does not abuse its discretion in denying a motion to sever absent a "firm representation" that a co-defendant would be willing to testify on the defendant's behalf. United States v. Blaylock, 421 F.3d 758, 767 (8th Cir.2005), cert. denied, 546 U.S. 1126, 126 S.Ct. 1108, 163 L.Ed.2d 918 (2006). In his pretrial motion, Myers neglected to offer a "firm representation" that Crumley was willing to testify, but simply stated that he would call Crumley to testify and that her testimony would exculpate him.⁴ He offered no proof to the district court that Crumley agreed to testify on Myers's behalf. On appeal, Myers points to the fact that Crumley did testify for him at the...