U.S. v. Ehrmann, 04-1646.

• Decision Date: 31 August 2005
• Docket Number: No. 04-1646.,04-1646.
• Parties: UNITED STATES of America, Appellee, v. Timothy John EHRMANN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

421 F.3d 774

UNITED STATES of America, Appellee, v. Timothy John EHRMANN, Appellant.

No. 04-1646.

United States Court of Appeals, Eighth Circuit.

Submitted: December 13, 2004.

Filed: August 31, 2005.

COPYRIGHT MATERIAL OMITTED

Kyle D. White, argued, St. Paul, MN, for appellant.

Joseph T. Dixon, argued, Asst. U.S. Attorney, Minneapolis, MN, for appellee.

Before ARNOLD, BEAM, and RILEY, Circuit Judges.

RILEY, Circuit Judge.

Timothy John Ehrmann (Ehrmann) appeals his convictions and sentence. In April 2003, the government charged Ehrmann with eight counts of conspiracy to distribute, aiding and abetting possession with intent to distribute, and possession with intent to distribute methamphetamine and ecstasy between April 2001 and February 2003. A jury found Ehrmann guilty of seven counts, and the district court¹ sentenced him to 360 months' imprisonment and five years' supervised release. On appeal, Ehrmann assigns numerous errors, including (1) the denial of his suppression motion; (2) the denial of a fair trial due to the prosecutor's peremptory strike of a prospective juror based on the juror's sexual orientation; (3) the admission at trial of prejudicial videotape evidence; (4) the denial of his right to testify on his own behalf; (5) prosecutorial misconduct; (6) the improper assessment of a two-level sentencing enhancement for obstruction of justice; and (7) Booker sentencing errors. Finding no reversible errors, we affirm.

I. BACKGROUND

A. Factual Summary

After earning a bachelor's degree in finance, Ehrmann worked as a controller for three different companies. He later completed a master's degree in business administration and earned an annual salary of nearly $70,000. In late September 2001, Ehrmann was laid off due to a corporate merger. He then decided to apply his considerable business acumen to organizing a nationwide narcotics operation based out of his Minneapolis home.

Law enforcement first learned of Ehrmann's involvement in narcotics trafficking in April 2001, when United States Customs officials interdicted a package of ecstasy mailed from Toronto, Ontario, to a Minneapolis residential address. Customs officials made a controlled delivery to the residence, and Ian St. James (St.James) signed for the controlled package. After arresting St. James, law enforcement searched the residence and found Northwest Airlines ticket stubs for a return trip from Minneapolis to Toronto in March 2001. The tickets were issued to St. James, but they were addressed to Ehrmann.

Upon being arrested, St. James agreed to cooperate with law enforcement. St. James phoned co-defendant Thomas Haslip (Haslip), who later arrived at St. James's residence. Haslip discussed with St. James the distribution of 1,500 ecstasy pills before taking possession of the controlled package and departing. Haslip delivered the package to 4302 Portland Avenue, a residence owned by Ehrmann, where he and Haslip lived. Thereafter, law enforcement agents obtained a search warrant and searched Ehrmann's residence, where they found evidence of three recent wire transfers from Ehrmann to St. James in the amounts of $8,000, $4,500 and $1,700, and a fourth wire transfer from Ehrmann to Ron Geoff. Agents also discovered and seized a notebook recording drug orders. Law enforcement officers made no arrests, but they continued to monitor Ehrmann's residence in an attempt to discover more information about the ongoing narcotics operation.

In January 2002, Bloomington, Minnesota, police stopped Anthony Florian (Florian), who possessed ninety-three grams of methamphetamine. Florian agreed to cooperate with authorities, telling them he had located a supply source for methamphetamine in Arizona, and Ehrmann and others had given Florian $4,500 to purchase methamphetamine. Thereafter, Florian purchased eight ounces of methamphetamine, delivered four ounces to Ehrmann, and retained possession of four ounces, approximately the amount Florian possessed when the police stopped him. Police also seized from Florian detailed drug ledgers containing numerous references to "TE," which police presumed were the identifying initials of Timothy Ehrmann.

Six months later, on June 8, Trooper Anthony Gerard (Trooper Gerard), an Arizona Highway Patrol Officer, pulled over an automobile on Interstate 40 traveling ninety-four miles per hour. Eugene Blaylock (Blaylock) was driving, and Ehrmann was riding in the front passenger seat. Trooper Gerard approached the car and spoke first to Blaylock, who gave Trooper Gerard the rental agreement and his Texas driver's license. Ehrmann did not acknowledge Trooper Gerard, but instead focused intently on his laptop computer. Trooper Gerard asked Blaylock why he was traveling from Dallas to Arizona, and Blaylock told Trooper Gerard he and Ehrmann came to Arizona "just to hang out." Blaylock also told Trooper Gerard he was unemployed and had been for some time.

Trooper Gerard issued Blaylock a speeding ticket, and then told Blaylock he was free to go. As Blaylock began walking back to the car, Trooper Gerard asked Blaylock if he would answer a few more questions, and Blaylock said he would. After asking Blaylock several questions related to narcotics trafficking, Trooper Gerard asked Blaylock's permission to search the vehicle. Blaylock paused for a second before consenting to the search. When Blaylock attempted to remove the car keys from the ignition, Ehrmann inquired what Blaylock was doing and Ehrmann then objected to the search. After Blaylock and Ehrmann conversed for about ten seconds, Blaylock told Trooper Gerard that Ehrmann did not want the car searched, and Trooper Gerard would need to talk with Ehrmann.

Trooper Gerard then approached the passenger side of the vehicle and noticed Ehrmann had set down his laptop computer and was now fidgeting in his seat, squirming back and forth. Trooper Gerard asked Ehrmann for permission to search the vehicle. Ehrmann told Trooper Gerard he had been delayed long enough and did not want to wait for Trooper Gerard to search the vehicle. Ehrmann's hands were shaking, causing Trooper Gerard to believe Ehrmann was nervous. Trooper Gerard assured Ehrmann the search would take only five minutes, but Ehrmann renewed his objection to the search, this time saying he did not want his privacy invaded. When Trooper Gerard asked Ehrmann if there were any illegal drugs in the vehicle, Ehrmann's right eyebrow began twitching uncontrollably. At this point, Trooper Gerard called a canine unit to the scene.

Seventeen minutes later a canine unit arrived. When the handler walked the canine around the vehicle, the canine alerted to the trunk. The officers then opened and searched the trunk. The search revealed a small black bag inside a larger black duffle bag. The small black bag contained two packages each with two packets of a white crystal substance. The packages weighed just under one pound and field tested positive for methamphetamine. The small bag also contained ten ecstasy tablets. The large black duffle bag contained a digital scale and $520 in cash. Trooper Gerard also confiscated $156 from Ehrmann's wallet, two Dell computers, drug ledgers, and an American Airlines ticket addressed to Ehrmann, but issued to Blaylock for round-trip air travel between Dallas/Fort Worth and Minneapolis on October 19, 2002.

Following the search, officers arrested Ehrmann on state drug charges. He posted bond and returned to Minneapolis, where he continued to purchase large, distributable quantities of methamphetamine and ecstasy. In August 2002, Ehrmann traveled with Haslip to Arizona, where they purchased methamphetamine, which they mailed to Minneapolis, before returning by air. In October, Ehrmann and Haslip traveled to Las Vegas, where they met a drug supplier named Timothy Range (Range) at a circuit party.² Initially, Haslip purchased one pound of methamphetamine from Range. Throughout November and December, Ehrmann lived with Range and purchased two to three pounds of methamphetamine from Range on five or six occasions.

On February 12, 2003, Ehrmann was arrested in San Diego attempting to purchase three pounds of pseudoephedrine³ from an undercover Drug Enforcement Agency (DEA) agent. Ehrmann admitted to the DEA agent he intended to process the pseudoephedrine into methamphetamine. When Ehrmann was arrested, agents also seized $18,000 in cash and approximately 325 tablets of ecstacy, which Ehrmann offered to sell to the DEA agent.

B. Procedural Summary

A federal grand jury returned a seven-count indictment against Ehrmann and four co-defendants in March 2003. The indictment alleged a conspiracy to distribute ecstasy and methamphetamine, possession of controlled substances with intent to distribute, and aiding and abetting possession with intent to distribute controlled substances. The following month, the government filed a superceding indictment adding Jimmie Charles Orr (Orr) as a defendant and an eighth count charging Ehrmann and Orr with possession of methamphetamine with intent to distribute. Ehrmann and four co-defendants pled not guilty and proceeded to trial. Orr pled guilty to the conspiracy count, and agreed to cooperate with authorities.

Before trial, Ehrmann moved to suppress the physical evidence seized from the rental car in Arizona. Adopting the report and recommendation of the magistrate judge, the district court denied the suppression motion. During the three week trial, the government called some thirty witnesses, including Trooper Gerard, Orr, Range, and several unindicted co-conspirators who either had sold distributable quantities of drugs to Ehrmann and Haslip or had purchased drugs for resale from them. The jury convicted Ehrmann of seven of the eight counts, including the conspiracy count.

On March 8, 2004, the district court sentenced Ehrmann to 360 months' imprisonment. In determining the sentence, the district court adopted the drug quantity finding proposed in...