U.S. v. Ehrlich, s. 95-30258
| Decision Date | 10 January 1997 |
| Docket Number | 95-30298 and 95-30299,Nos. 95-30258,s. 95-30258 |
| Citation | 106 F.3d 409 |
| Parties | NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff/Appellee, v. Douglas EHRLICH, Dean Lafromboise, and Michael Cozzens, Defendants/Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before: SCHROEDER and KLEINFELD, Circuit Judges, and BREWSTER, * District Judge.
Douglas Ehrlich ("Ehrlich") appeals his sentencing after pleading guilty to one count of conspiracy to distribute methamphetamine, cocaine and marijuana (21 U.S.C. §§ 841(a)(1) and 846 and 18 U.S.C. § 2), one count of using or carrying a firearm during a drug trafficking crime (18 U.S.C. § 924), and one count of money laundering (18 U.S.C. § 1956). He received a 292 month sentence on the conspiracy count and a 60 month consecutive sentence on the gun count. The sentence on the conspiracy count was enhanced for drug trafficking in a school zone (21 U.S.C. § 860).
Appellant Michael Cozzens ("Cozzens") was convicted by jury trial of conspiracy to distribute methamphetamine, cocaine and marijuana (21 U.S.C. §§ 841(a)(1), 846, and 18 U.S.C. § 2), and using and carrying a firearm in two counts (18 U.S.C. § 924(c)). He received a 340 month sentence for the conspiracy, and a 60 month consecutive sentence on the gun counts.
Appellant Dean LaFromboise ("LaFromboise") was convicted by jury trial of conspiracy to distribute methamphetamine, cocaine and marijuana (21 U.S.C. § 841(a)(1), 846, and 18 U.S.C. § 2), and using and carrying a firearm in three counts (18 U.S.C. § 924(c)). He received a 360 month sentence for the conspiracy and a mandatory 360 month consecutive sentence for the gun counts as one of the counts specified use of a machine gun.
This case arose from appellant Ehrlich's operation of a drug distribution ring in Billings, Montana between 1993 and 1994. He primarily distributed methamphetamine in addition to some cocaine and marijuana from his residence and a warehouse in Billings. One of his primary sources for methamphetamine was John Estrada ("Estrada"), a resident of California. At the height of his operations in 1994, Ehrlich was purchasing five to ten pounds of methamphetamine at a time, traveling to California approximately every other week. LaFromboise first met Ehrlich at his warehouse in the summer of 1994 through a friend who identified Ehrlich as a drug source. Ehrlich first distributed drugs to LaFromboise in August or September, 1994. The trial testimony indicated that Ehrlich employed LaFromboise to work for him, including work collecting drug debts, and that LaFromboise acted to protect the warehouse on the evening of October 21, 1994 when Estrada came to Billings to collect a debt from Ehrlich. Cozzens became involved with Ehrlich in the fall of 1993, when Ehrlich began regularly supplying him with methamphetamine, cocaine and marijuana. The trial included testimony from several witnesses who purchased drugs from Cozzens. The record showed that Cozzens also attempted to collect at least one drug debt for Ehrlich. At trial, the government not only introduced evidence regarding drug transactions, but also introduced into evidence numerous firearms seized from various defendants, including a machine gun.
Ehrlich here appeals only the sentence imposed on him subsequent to his guilty plea.
Ehrlich first challenges the constitutionality of the enhanced penalty he received for drug trafficking in a school zone, pursuant to 21 U.S.C. § 860, in light of the Supreme Court's holding in U.S. v. Lopez, 514 U.S. 549, 115 S.Ct. 1624 (1995). We review a determination on the constitutionality of a statute de novo. U.S. v. Gordon, 974 F.2d 1110 (9th Cir.1992); U.S. v. Litteral, 910 F.2d 547 (9th Cir.1990). Appellant's position is without merit. Section 860 regulates an activity, drug trafficking, that substantially affects interstate commerce. U.S. v. Staples, 85 F.3d 461, 463 (9th Cir.1996); U.S. v. Leshuk, 65 F.3d 1105 (4th Cir.1995). Congress has the power to regulate this activity regardless of where it takes place, and has no less power to do so simply because it takes place in a school zone. See U.S. v. McDougherty, 920 F.2d 569, 572 (9th Cir.1990), cert. denied, 499 U.S. 911 (1991). Thus, the statute is constitutional. See U.S. v. Clark, 67 F.3d 1154 (5th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1432 (1996) ( Section 860 constitutional after Lopez ); U.S. v. Tucker, 90 F.3d 1135 (6th Cir.1996) (same).
Ehrlich also takes issue with the calculation of his offense level at sentencing, which was based on quantities of drugs which were not known to the government at the time of entering Ehrlich's plea, but which were revealed through the testimony of co-conspirators at trial. In the Presentence Report ("PSR") submitted to the district court prior to Ehrlich's sentencing, the Probation Officer indicated that the quantities mentioned by the co-conspirators would not be used in calculating the offense level. The government, however, argued that such quantities should be included. 1 The district court agreed.
Ehrlich first argues that the sentencing violated his agreement with the government granting him immunity for his trial testimony. Generally, under the Sentencing Guidelines, the sentencing court has broad discretion to consider any information which is sufficiently reliable. U.S. v. Notrangelo, 909 F.2d 363, 365 (9th Cir.1990). On the other hand, United States Sentencing Guidelines ("U.S.S.G.") § 1B1.8 prohibits the court from sentencing the defendant by using testimony which is covered by a grant of immunity to that defendant. U.S. v. Abanatha, 999 F.2d 1246, 1249 (8th Cir.1993), cert. denied, 511 U.S. 1035, 114 S.Ct. 1549 (1994). Appellant argues that both he and the testifying co-conspirators were given immunity, and thus Section 1B1.8 prohibits the use of either's testimony. Appellant's argument is without merit. While Section 1B1.8 protects a defendant from the use of his own testimony, the guideline does not extend immunity to the use of a co-conspirators' testimony.
Appellant also argues that use of this testimony deprived him of his right to cross-examination, as he was not represented at the trial where this testimony was elicited. Again, appellant's argument is unavailing. Although the Eleventh Circuit has expressed disfavor with the use of such testimony, U.S. v. Castellanos, 882 F.2d 474 (11th Cir.1989), revised, 904 F.2d 1490 (11th Cir.1990), both this Court and the Tenth Circuit have found that the use of a co-defendant's testimony is proper, even if offered at a separate trial where defendant has no opportunity for cross-examination. U.S. v. Beaulieu, 893 F.2d 1177 (10th Cir.1990), cert. denied, 497 U.S. 1038 (1990); Notrangelo, 909 F.2d at 365. The sentencing court must only ensure that such testimony " 'has sufficient indicia of reliability to support its probable accuracy.' " Id. (citing U.S.S.G. § 6A1.3, comment). We find that the district court's decision to consider this testimony was appropriate.
Finally, appellant argues that he was given insufficient notice of the potential use of this testimony and was therefore deprived of his right to rebut it. U.S. v. Wise, 881 F.2d 970, 972 (11th Cir.1989); U.S. v. Blackwell, 49 F.3d 1232, 1236 (7th Cir.1995). The record, however, reveals that the government served and filed a notice of objection to the PSR in which it indicated that it would request a higher base offense level calculation derived, in part, from information contained in the co-conspirator's trial testimony. Thus, Ehrlich had prior notice of the potential use of this testimony and had an opportunity to prepare a rebuttal. The district court's decision to rely on these facts will not be disturbed.
Appellant LaFromboise challenges both his jury convictions and his sentencing.
The jury found LaFromboise guilty under Count 1, which alleged a conspiracy to distribute methamphetamine, marijuana and cocaine. Appellant argues that the evidence and testimony presented at trial were insufficient to sustain this conviction.
When reviewing a jury determination of guilt based on a challenge to the sufficiency of the evidence, the court asks whether, "viewing the evidence in the light most favorable to the government, any rational trier of fact could have found [the defendant] guilty beyond a reasonable doubt. U.S. v. Ouinn, 18 F.3d 1461 (9th Cir.), cert. denied, 512 U.S. 1242, 114 S.Ct. 2755 (1994); Jackson v. Virginia, 443 U.S. 307 (1979).
In order to prove a drug conspiracy, the government must show: (1) an agreement to accomplish an illegal objective, and (2) an intent to commit the unlawful act. U.S. v. Shabani, 513 U.S. 10, 115 S.Ct. 382 (1994); U.S. v. Foster, 57 F.3d 727, 729 (9th Cir.1995). This case is controlled by our earlier holding in U.S. v. Lennick, 18 F.3d 814 (9th Cir.1994), cert. denied, 513 U.S. 856, 115 S.Ct. 162 (1994), where we found that a conspiracy to distribute drugs "requires proof of 'an agreement to commit a crime other than the crime that consists of the sale itself.' " Id. at 819 (citing U.S. v. Lechuga, 994 F.2d 346, 347 (7th Cir.) (en banc), cert. denied, 510 U.S. 982 (1993)). Evidence that the supplier sold a large quantity to the alleged co-conspirator can give rise to an inference that such drugs were being distributed, but cannot, without more, sustain a conviction for conspiracy. Lechuga, 994 F.2d at 347; U.S. v. Delgado, 4 F.3d 780, 787 (9th Cir.1993)....
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