U.S. v. O'Dell

• Decision Date: 11 January 2000
• Docket Number: No. 99-2460,99-2460
• Citation: 204 F.3d 829
• Parties: (8th Cir. 2000) UNITED STATES OF AMERICA, APPELLEE, v. GARY O'DELL APPELLANT. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 829

204 F.3d 829 (8th Cir. 2000)

UNITED STATES OF AMERICA, APPELLEE, v. GARY O'DELL APPELLANT.

No. 99-2460

United States Court of Appeals for the Eighth Circuit

Submitted: January 11, 2000

Decided: February 29, 2000

Appeal from the United States District Court for the Northern District of Iowa

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Bowman and Loken, Circuit Judges, and Alsop, District Judge.¹

Alsop, District Judge.

A jury found Gary O'Dell guilty of one count of conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h), five counts of money laundering, in violation of 18 U.S.C. § 1956, and one count of conspiracy to distribute controlled substances, in violation of 21 U.S.C. § 846. The district court,² on May 26, 1999, sentenced O'Dell to 210 months on the drug count and 78 months on the money laundering counts, the sentences to run concurrently. O'Dell appeals his conviction and sentence. We affirm.

I.

O'Dell's conviction stems from his participation in a drug trafficking scheme based out of Mason City, Iowa. Steve Gomez headed the drug trafficking organization; O'Dell, along with several others, worked for Gomez.

The Gomez organization dealt in large amounts of methamphetamine, marijuana, and cocaine. The group obtained the drugs from sources Gomez had developed and maintained in Arizona and California. The evidence showed that Gomez or one of his associates would travel to one of these states, purchase the drugs, and then return to Iowa where the drugs would be sold. The money used to purchase the drugs came from the proceeds of past drug sales.

O'Dell started working for Gomez in 1995 and was allegedly a member of the Gomez conspiracy until 1997. Government witnesses testified that O'Dell stored methamphetamine and marijuana in his house for Gomez. In addition, several of these witnesses testified that O'Dell made trips, four in total, to Arizona and California to purchase drugs and bring them back to Iowa. One witness testified that, on one of these trips, O'Dell helped in an attempt to manufacture methamphetamine out of ephedrine. The evidence also showed that O'Dell helped "rerock" or "cut" methamphetamine, and that he counted drug money for Gomez.

In addition, the government identified several occasions on which O'Dell used Western Union to wire money to Arizona to purchase drugs, or obtained a cashier's check and sent that through the mail for the same purpose. In doing so, O'Dell often used a fictitious name to help conceal the reason for sending the money. O'Dell also received a cashier's check in the amount of $10,000, sent to him at Gomez's direction, while he was in Arizona. The money came from drug proceeds and was used to purchase more drugs.

O'Dell was charged, along with Gomez and several others, with conspiracy to commit money laundering, money laundering, and conspiracy to distribute drugs. By the time O'Dell went to trial, most of his co-defendants had pled guilty, and some of them testified against him at his trial. O'Dell's trial lasted four days, and the jury returned a verdict of guilty on the two conspiracy counts and on five of the substantive money laundering counts.

On appeal, O'Dell alleges the district court made two errors at trial and three at sentencing. For the trial issues, O'Dell argues that the district court erred in admitting evidence that O'Dell possessed methamphetamine and in refusing to grant a mistrial after the prosecutor made improper remarks in his rebuttal closing argument. For the sentencing issues, O'Dell contends that the district court erred in enhancing his sentence for obstruction of justice, in failing to reduce his sentence for playing a minor or minimal role in the conspiracy, and in failing to reduce his sentence under the so- called "safety valve" provision. We consider each of these arguments in turn.

II.

A. Admission of Evidence

O'Dell argues that the district court erred in admitting evidence that he possessed methamphetamine. We review a district court's decision to admit evidence for an abuse of discretion. United States v. McMurray, 34 F.3d 1405, 1411 (8 th Cir. 1994), cert. denied, 513 U.S. 1179, 115 S.Ct. 1164, 130 L.Ed.2d 1119 (1995). The evidence at issue came in through the testimony of Elaine Merrill, the general assistance director in Cerro Gordo County, Iowa. Ms. Merrill testified that on October 7, 1996, she met with O'Dell regarding his application for general assistance. After he left, Ms. Merrill discovered a small coin purse on O'Dell's chair. She opened it the next morning and found several individual packets containing a powdery substance, later determined to be methamphetamine. O'Dell argues that this evidence should not have been admitted because it constitutes impermissible "character" evidence under Rule 404(b) of the Federal Rules of Evidence.³ We disagree.

Our cases have firmly established that crimes or acts which are "inextricably intertwined" with the charged crime are not extrinsic and Rule 404(b) does not apply. See United States v. Severe, 29 F.3d 444, 447 (8 th Cir. 1994) ("'[W]here the evidence of an act and the evidence of a crime charged are inextricably intertwined, the act is not extrinsic and Rule 404(b) is not implicated.'") (quoting United States v. DeLuna, 763 F.2d 897, 913 (8 th Cir.), cert. denied, 474 U.S. 980, 106 S.Ct. 382, 88 L.Ed.2d 336 (1985)), cert. denied, 513 U.S. 1096, 115 S.Ct. 763, 130 L.Ed.2d 660 (1995). O'Dell was charged in this case, together with his co-defendants, with conspiring to distribute methamphetamine from 1994 until 1997. Possessing methamphetamine, even a small amount, during the period in which he is accused of conspiring to distribute the same drug is direct evidence that defendant participated in the conspiracy, and therefore Rule 404(b) is not implicated. See McMurray, 34 F.3d at 1412 (evidence obtained during a prior arrest, including a gun and a scale with cocaine residue, was "part of the government's proof that the appellants were engaged in a conspiracy to distribute cocaine," and was therefore not Rule 404(b) evidence); Severe, 29 F.3d at 447 (coconspirator's testimony that defendants delivered a kilogram of cocaine to her residence "did not implicate Rule 404(b) because it tend[ed] to prove whether a conspiracy to distribute cocaine existed"); United States v. Stephenson, 924 F.2d 753, 763-64 (8 th Cir.) (admission of various drug paraphernalia, weapons, and cash was not governed by Rule 404(b) where it was "plainly relevant to the existence of and appellants' participation in the conspiracy charged"), cert. denied, 502 U.S. 813, 112 S.Ct. 63, 116 L.Ed.2d 39 (1991), and cert. denied, 502 U.S. 916, 112 S.Ct. 321, 116 L.Ed.2d 262 (1991).

Moreover, the probative value of the evidence is not substantially outweighed by its prejudicial effect. See United States v. Bass, 794 F.2d 1305, 1312 (8th Cir.) (stating that the "dictates of rule 403 must still be applied" to evidence falling outside the scope of Rule 404(b)), cert. denied, 479 U.S. 869, 107 S.Ct. 233, 93 L.Ed.2d 159 (1986). In reaching this determination, we recognize the overall strength of the government's case and note that this evidence played only a small part. We therefore conclude that the district court did not abuse its discretion in admitting the evidence.

B. Prosecutorial Misconduct

O'Dell next argues that the district court erred in refusing to grant a mistrial after the prosecutor made inaccurate and misleading statements during his rebuttal closing argument. Prosecutorial misconduct is grounds for a mistrial where (1) the prosecutor's remarks are in fact improper, and (2) the remarks prejudicially affect the defendant's substantial rights so as to deprive the defendant of a fair trial. United States v. Hernandez, 779 F.2d 456, 458 (8 th Cir. 1985). We will not reverse a district court's refusal to grant a mistrial unless we find an abuse of discretion. Id.

In his rebuttal closing argument, the prosecutor addressed the government's ability to compel witnesses to testify:

[T]his Government cannot force somebody to testify if they don't want to. Even if they're convicted of a crime, there is no way for the Government to force the person to take the stand to tell what they know. You can't draw out the facts from them of [sic] their knowledge in any way by forcing them to do it. You can't threaten them. You can't put them in jail longer. There's no way to draw out the facts they know from them. The only way we can do it in this system is to do it voluntarily.

(Prosecutor's Closing Argument Tr., at 38-39.) We agree with O'Dell, and the government does not seriously contend otherwise, that these remarks were in fact improper. "The power of government to compel persons to testify in court or before grand juries and other governmental agencies is firmly established in Anglo-American jurisprudence." Kastigar v. United States, 406 U.S. 441, 443, 92 S.Ct. 1653, 1655, 32 L.Ed.2d 212 (1972). This power is not absolute, of course, as a person may refuse to testify, for example, if the response would violate the Fifth Amendment privilege against compulsory self-incrimination. See id. at 444, 92 S.Ct. at 1656 (noting that "[t]here are a number of exemptions from the testimonial duty, the most important of which is the Fifth Amendment privilege against compulsory self-incrimination").

Yet, even where the Fifth Amendment is implicated, the government may compel a witness to testify if the government grants the witness immunity from future prosecution. See id. at 453, 92 S.Ct. at 1661 (holding that 18 U.S.C. § 6002, which provides immunity from use and derivative use, "is coextensive with the scope of the [Fifth Amendment] privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege"). That happened in this case. The government granted use immunity to some of O'Dell's co-defendants, and t...