U.S. v. Ellefson, 04-1293.

• Decision Date: 23 August 2005
• Docket Number: No. 04-1293.,04-1293.
• Citation: 419 F.3d 859
• Parties: UNITED STATES of America, Appellee, v. Ann Victoria ELLEFSON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

419 F.3d 859

UNITED STATES of America, Appellee, v. Ann Victoria ELLEFSON, Appellant.

No. 04-1293.

United States Court of Appeals, Eighth Circuit.

Submitted: October 19, 2004.

Filed: August 23, 2005.

Wallace Taylor, argued, Cedar Rapids, IA, for appellant.

Daniel C. Tvedt, argued, Asst. U.S. Atty., Cedar Rapids, IA, for appellee.

Before COLLOTON, LAY, and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

Ann Victoria Ellefson was convicted of distributing and aiding and abetting the distribution of 2,887 pseudoephedrine pills knowing, or having a reasonable cause to believe, the pseudoephedrine would be used to manufacture methamphetamine, in violation of 21 U.S.C. § 841(c)(2) and 18 U.S.C. § 2 (Count 1); possession with intent to distribute and aiding and abetting possession with intent to distribute 260.5 grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) and 18 U.S.C. § 2 (Count 2); and possession of methamphetamine and marijuana, in violation of 21 U.S.C. § 844(a) (Count 3). The district court¹ sentenced Ellefson to 188 months' imprisonment pursuant to U.S. Sentencing Guidelines Manual §§ 2D1.1 and 2D1.11. Ellefson appeals her conviction as to Counts 1 and 2, claiming that there was insufficient evidence to support the jury verdicts. She also appeals her sentence, claiming that the lack of a "mitigating-role cap" in U.S.S.G. § 2D1.11 violated her rights to due process and equal protection, and that she should be resentenced under advisory guidelines. We affirm.

I. BACKGROUND

Ellefson's convictions arose from her involvement with the drug-related activities of her then boyfriend, Ryan Buchheim. The case against Ellefson centered around a September, 2002, transfer of 2,887 pseudoephedrine pills from Ellefson and Buchheim to undercover police officer Josh Lupkes and confidential informant Flint Hillman in exchange for two tanks purportedly containing anhydrous ammonia.

Lupkes and Hillman met Buchheim and Ellefson outside of her residence in Cedar Rapids, Iowa. With Ellefson present, Hillman helped Buchheim move the purported anhydrous ammonia tanks from his car into Buchheim's van. Hillman, Buchheim and Ellefson then went into her apartment, leaving Lupkes in Hillman's car. Inside her apartment, Ellefson quizzed Hillman about how well he knew Lupkes. Ellefson asked Hillman: "Why are you afraid to bring him up?"; "How long have you known him?"; "Does he know what you're coming here for?"; "Then it doesn't really matter, does it?" Hillman told Ellefson that Lupkes was "where I got all my crank from" and that Lupkes knew why Hillman was in her apartment.

While Hillman was in Ellefson's apartment, Buchheim spoke on the telephone with his pseudoephedrine supplier to set up a delivery of pseudoephedrine. As soon as Buchheim hung up the phone, Ellefson asked him "Do you know when?" and "Who? When? Where?" Buchheim replied, "At my place, about half an hour and a case. It's like 8,640 pills." Ellefson then asked to use Buchheim's van to run an errand. Buchheim noted that the purported anhydrous ammonia tanks were in the back and stated, "See, unless you want to take them and drop them off at [his storage garage] ...." Ellefson responded, "You want me to?" and Buchheim replied, "Actually, I kinda want to go with you, if you go." Ellefson replied, "Okay," but Buchheim ultimately decided to drive because Ellefson might "take a wrong turn or something."

Still inside Ellefson's apartment, Ellefson and Buchheim agreed to meet Hillman later that day at Buchheim's apartment to deliver the pseudoephedrine. Buchheim kept his pseudoephedrine in a garage he rented for storage. Aware of the reason for their trip, Ellefson rode with Buchheim to the garage in which Buchheim kept a safe containing cocaine, pseudoephedrine, a triple-beam scale, numerous glass pipes and other items related to the production of methamphetamine, such as starter fluid, rubber tubing and empty tanks for storing anhydrous ammonia. Buchheim placed the anhydrous ammonia tanks in the garage and retrieved pseudoephedrine and cocaine to give to Hillman.

After retrieving the pseudoephedrine, Ellefson and Buchheim met Hillman at Buchheim's apartment. Upon arrival, both Ellefson and Buchheim described two surveillance vehicles that followed them from the garage. Ellefson stated that one of the vehicles following them was a blue or black Dodge. Before leaving Buchheim's apartment, Hillman received 2,887 pseudoephedrine tablets (60mg each) and some cocaine.

On December 2, 2002, Police executed an arrest warrant on Buchheim at Ellefson's residence. When Buchheim was arrested, he informed officers that he lived at Ellefson's apartment. Police allowed Ellefson to leave while they secured the apartment and applied for a search warrant. Before leaving, Ellefson removed $3,500 of drug proceeds from Buchheim's duffle bag and tried to hide the money in the waistband of her jeans. An officer stopped Ellefson and removed the money from her waistband. The officer asked Ellefson whether there was anything else in the bag he needed to know about. Ellefson replied, "Drugs."

While executing the search warrant, police found a large vacuum-sealed bag of cocaine, smaller amounts of cocaine, methamphetamine and marijuana in Buchheim's duffle bag. Police also found numerous drug-related materials scattered and readily accessible throughout Ellefson's apartment, including a small scale, an electronic scale, a box of small sandwich bags, a partially burnt marijuana cigarette, rolling papers, several marijuana "bongs," torches and glass pipes used to ingest methamphetamine, and methamphetamine.

An investigating officer testified that Buchheim told police that his source delivered large amounts of pseudoephedrine to Ellefson's apartment and that Ellefson was present when he repackaged the pills. Buchheim testified that he packed the drugs found in his duffle bag for a recent weekend stay at a hotel, where he and Ellefson consumed drugs from the bag. Buchheim testified that he sometimes stayed at Ellefson's apartment and that she knew he was selling pseudoephedrine, marijuana, cocaine and methamphetamine from her apartment.

II. DISCUSSION

A. Sufficiency of the Evidence

Ellefson argues that there was insufficient evidence to convict her of aiding and abetting the distribution of pseudoephedrine with intent to manufacture methamphetamine (Count 1) and aiding and abetting possession with intent to distribute cocaine (Count 2).² Ellefson contends that, at most, the evidence demonstrated that she knew of Buchheim's activities but did not participate in those activities as required to sustain an aiding and abetting conviction. We disagree.

When reviewing the sufficiency of evidence to support a jury verdict, this Court "views the evidence in the light most favorable to the government, resolving evidentiary conflicts in favor of the government, and accepting all reasonable inferences drawn from the evidence that support the jury's verdict." United States v. Espino, 317 F.3d 788, 791 (8th Cir.2003). This standard of review is very strict, and a jury verdict will not be overturned lightly. United States v. Crossland, 301 F.3d 907, 913 (8th Cir.2002). We may reverse a jury's verdict only if "no reasonable jury could have found the accused guilty beyond a reasonable doubt." United States v. Collins, 340 F.3d 672, 678 (8th Cir.2003). A jury verdict may be based on circumstantial as well as direct evidence, and "[t]he evidence need not exclude every reasonable hypothesis except guilt." United States v. Williford, 309 F.3d 507, 509 (8th Cir.2002) (quoting United States v. Erdman, 953 F.2d 387, 389 (8th Cir.1992)) (internal quotations omitted).

There are three elements for aiding and abetting distribution of controlled substances: "(1) the defendant associated herself with the unlawful venture; (2) the defendant participated in it as something she wished to bring about; and (3) the defendant sought by her actions to make it succeed." United States v. Mitchell, 388 F.3d 1139, 1143-44 (8th Cir.2004); United States v. Rojas, 356 F.3d 876, 878 (8th Cir.2004). This Court has acknowledged that "[m]ere association between the principal and those accused of aiding and abetting is not sufficient to establish guilt; nor is mere presence at the scene and knowledge that a crime was to be committed sufficient to establish aiding and abetting." Snyder v. United States, 448 F.2d 716, 718 (8th Cir.1971) (citations omitted). Nonetheless, "[j]urors can be assumed to know that criminals rarely welcome innocent persons as witnesses to serious crimes and rarely seek to perpetrate felonies before larger-than-necessary audiences." United States v. Baker, 98 F.3d 330, 338 (8th Cir.1996) (quoting United States v. Ortiz, 966 F.2d 707, 712 (1st Cir.1992)) (internal quotations omitted).

Viewed in the light most favorable to the verdict, there was sufficient evidence for a reasonable jury to conclude beyond a reasonable doubt that Ellefson aided and abetted both the distribution of pseudoephedrine and possession with intent to distribute cocaine. That Ellefson associated herself with Buchheim's unlawful activities is undeniable, and the prosecution presented ample evidence that Ellefson both participated in those activities and sought by her actions to make them succeed.

With regard to the distribution of pseudoephedrine, the jury heard testimony that Ellefson allowed Buchheim to receive and package large amounts of pseudoephedrine in her apartment. The jury also learned that Ellefson believed the tanks contained anhydrous ammonia to be used in the manufacture of methamphetamine and that she not only allowed the tanks to be exchanged outside of her apartment but also that she invited Hillman into her apartment to discuss when and where they would complete the transaction. See Rojas, 356 F.3d at 879 (holding that there was sufficient evidence for aiding and abetting where the jury...