U.S. v. Holt
| Decision Date | 09 September 1992 |
| Docket Number | 91-2359MN,Nos. 91-2357M,91-2358M,s. 91-2357M |
| Citation | 969 F.2d 685 |
| Parties | UNITED STATES of America, Appellee, v. Jeffrey Thomas HOLT, Appellant. UNITED STATES of America, Appellee, v. John PERFETTO, a/k/a "Spud" Perfetto, Appellant. UNITED STATES of America, Appellee, v. Robert Brooks BALL, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Barry V. Voss, Minneapolis, Minn., argued, for appellant Jeffrey Holt.
Frederick J. Goetz, Minneapolis, Minn., argued, for appellant John Perfetto.
Charles L. Hawkins, Minneapolis, Minn., argued, for appellant Robert Ball.
Jeffrey S. Paulsen, Asst. U.S. Atty., Minneapolis, Minn., argued, for appellee.
Before RICHARD S. ARNOLD, Chief Judge, HEANEY, Senior Circuit Judge, and MAGILL, Circuit Judge.
Jeffrey Holt, John Perfetto, and Robert Ball appeal their convictions and sentences for conspiracy and drug-related offenses. We affirm the conspiracy and distribution convictions for all of the defendants and the sentences of Perfetto and Ball for these offenses. We remand to the District Court to vacate Holt's and Perfetto's convictions of continuing criminal enterprise. Finally, we vacate Holt's sentence and remand for an evidentiary hearing on an obstruction-of-justice enhancement.
This case involves a long list of characters who conspired to smuggle cocaine from Florida to Duluth, Minnesota, from January 1986 through September 1990. Holt and Perfetto stood on top of the Duluth distribution ladder, each having a shifting class of couriers beneath him. Ball, a Canadian citizen, was one of the Florida suppliers of cocaine, spending six months of the year living in Florida and six months in Canada. On November 7, 1990, a grand jury returned a seven-count indictment naming ten people, including the defendants. Six of the ten pleaded guilty and cooperated with the government. Holt, Perfetto, and Ball went to trial. The jury convicted Holt and Perfetto of conspiracy to distribute cocaine and continuing criminal enterprise (CCE). It also convicted Perfetto of possession and Holt of aiding and abetting possession with intent to distribute cocaine. Ball was convicted of conspiracy and aiding and abetting possession with intent to distribute cocaine. These appeals followed.
All of the defendants argue that their conspiracy convictions must be reversed because the government proved multiple conspiracies--at least four--when the indictment charged only a single conspiracy. The defendants claim that the fact that there are multiple conspiracies is apparent from evidence of the different personnel involved in each transaction, the varied dates of each of the transactions, the differing methods of getting the drugs from Florida to Minnesota, and the many ways of distributing it once it arrived.
Whether the evidence proved a single conspiracy or multiple conspiracies is a question of fact to be resolved by the jury. The jury made that determination after being correctly instructed on the subject. The evidence need not prove that all of the co-conspirators were involved in each drug transaction, or even that they all knew each other. Here, there was evidence that the defendants had a common overall goal--to smuggle drugs from Florida to Duluth, Minnesota, for distribution--and that the same infrastructure continuously underlay each phase of defendants' activities. Viewing the evidence in the light most favorable to the jury verdict, as we must, we hold that it was reasonable for the jury to conclude that a single conspiracy existed.
Holt and Perfetto next contend that the evidence was insufficient to convict them under 21 U.S.C. § 848 for a continuing criminal enterprise. The government concedes that we must remand to the District Court to vacate the CCE convictions on double-jeopardy grounds, 1 so we need not address this argument. Allowing both of the convictions, conspiracy and CCE, to stand would violate the Double Jeopardy Clause of the Fifth Amendment since the convictions punish twice for the same conduct. See United States v. Duke, 940 F.2d 1113, 1120 (8th Cir.1991).
Each defendant also challenges his sentence under the Sentencing Guidelines. Holt and Perfetto first argue that the District Court erred in increasing their offense levels by four levels for being "organizer[s] ... of a criminal activity that involved five or more participants ..." under U.S.S.G. § 3B1.1(a). They claim that the District Court merely accepted the probation officer's conclusion without holding a hearing to make its own finding. Although the Guidelines do not define organizer, the Commentary lists several factors a court may consider in determining whether a defendant played such a role:
the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.
Application Note 3 to U.S.S.G. § 3B1.1.
After a painstaking review of the evidence, we affirm the sentences imposed by the District Court. First, the District Court did not err by failing to conduct a hearing on this enhancement. In light of the evidence presented at trial on the CCE count, such a hearing would have been repetitive. On the facts, Holt's argument is wholly without merit. With regard to Perfetto's enhancement, however, we find the evidence less than overwhelming, but still sufficient. In other words, the District Court's findings were not clearly erroneous. Perfetto conceded that he "organized" Regina Mecklin, his girlfriend. In addition, Perfetto fronted cocaine to Michelle Crivac, a subdealer, and called her daily to monitor her progress in selling it. He also used her house to store and "cut up" large amounts of cocaine. Perfetto threatened subdealers Scott Kirsch and Paul Server when they failed to pay him on time. He also taught Kirsch how to cut cocaine to earn a larger profit. Finally, the District Court did not clearly err in finding that Robert Brophy and Gene Kruger, also subdealers of Perfetto, were organized by Perfetto. Brophy and Kruger each bought cocaine from Perfetto on a regular basis, which Perfetto knew was being resold. Moreover, Brophy once served as a...
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