U.S. v. Kamerud, 02-2232.

• Decision Date: 23 April 2003
• Docket Number: No. 02-2232.,No. 02-2427.,02-2232.,02-2427.
• Citation: 326 F.3d 1008
• Parties: UNITED STATES of America, Appellee, v. Cory Baker KAMERUD, Appellant. United States of America, Appellee, v. Brett Christian Kamerud, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

326 F.3d 1008

UNITED STATES of America, Appellee, v. Cory Baker KAMERUD, Appellant.

United States of America, Appellee, v. Brett Christian Kamerud, Appellant.

No. 02-2232.

No. 02-2427.

United States Court of Appeals, Eighth Circuit.

Submitted: February 12, 2003.

Filed: April 23, 2003.

Rehearing and Rehearing En Banc Denied: June 10, 2003^*.

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Robert A. Lengeling, argued, Sioux City, IA (R. Scott Rhinehart, on the brief), for Appellant Cory Kamerud.

Mark C. Meyer, argued, Cedar Rapids, IA, for Appellant Brett Kamerud.

Shawn S. Wehde, Asst. U.S. Atty., argued, Sioux City, IA, for Appellee USA.

Before BOWMAN, MORRIS SHEPPARD ARNOLD, and BYE, Circuit Judges.

BYE, Circuit Judge.

A jury found Cory and Brett Kamerud guilty of conspiring to distribute and possessing with intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. The jury also found one of the objects of the conspiracy was to possess the methamphetamine with the intent to distribute it to one or more persons under twenty-one years of age in violation of 21 U.S.C. § 859. The district court¹ sentenced each to 240 months imprisonment, to be followed by ten years of supervised release. Both Cory and Brett appeal, challenging the sufficiency of the evidence and raising several other pre-trial, trial, and sentencing issues. We affirm the judgments of conviction and sentences in all respects.

I

We review the evidence in the light most favorable to the verdict and accept all reasonable inferences as established. United States v. Jimenez-Villasenor, 270 F.3d 554, 558 (8th Cir.2001). In June and August 2000, the Kameruds and two other individuals, Russell Brick and Stacey Bitz, trafficked methamphetamine from Sioux City, Iowa, to Aberdeen, South Dakota. On about twelve occasions, the group got methamphetamine in Sioux City from a supplier named Kurt Undine, then traveled back to Aberdeen to redistribute some of the methamphetamine and consume some of it. Although the Kameruds did not personally make the trip each time, they always contributed some of the money for each of the purchases Brick ultimately made from Undine. In all, the group purchased between 680 and 850 grams of methamphetamine, or between 2 and 2½ ounces on each trip. When the methamphetamine reached Aberdeen, the Kameruds would weigh out portions of their purchases for resale before consuming some of the drugs themselves.

II

Citing United States v. Jensen, 141 F.3d 830 (8th Cir.1998), and United States v. West, 15 F.3d 119 (8th Cir.1994), the Kameruds contend the evidence was insufficient to show they conspired to distribute methamphetamine. They argue the evidence merely showed they were drug users who had a buyer/seller relationship with Russell Brick, and their resale of drugs was not pursuant to any agreement with Brick but merely a means to finance their own personal use. We disagree.

The government was not required to show an express agreement between the Kameruds and their seller regarding the subsequent redistribution of the drug — proof of a tacit understanding was sufficient. E.g., United States v. Crossland, 301 F.3d 907, 913 (8th Cir. 2002). Unlike Jensen, where the alleged conspirator/seller did not know of or agree with his buyer's plan to resell a personal use amount of amphetamine to a third person, 141 F.3d at 833, Brick personally saw the Kameruds weighing out grams for resale before consuming any of the drugs themselves. Unlike West, where the evidence established only that an alleged conspirator/seller made sales of small quantities intended for the personal use of two buyers who did not know one another, 15 F.3d at 120-21, Brick knew the Kameruds were redistributing the drugs, and frequently observed customers coming and going from the Kameruds' residence.

The Kameruds also claim the evidence was insufficient to prove the conspiracy involved 500 grams or more of methamphetamine, arguing the amount they consumed personally should not be included in the total. The Kameruds were charged with conspiracy to distribute methamphetamine, however, not possession with intent to distribute, so the amount consumed for personal use should be included in the total. Compare Jimenez-Villasenor, 270 F.3d at 562 (holding that drugs acquired for personal use should be included in determining drug quantity when charge is for conspiracy) with United States v. Fraser, 243 F.3d 473, 475-76 (8th Cir.2001) (holding drugs acquired for personal use are not relevant conduct when charge is for possession with intent to distribute).

Brett further contends Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), requires us to distinguish between a district court's inclusion of personal use amounts as relevant conduct for sentencing purposes, and the inclusion of personal use amounts in the proof submitted to a jury when asking them to find a conspiracy to distribute a specific amount of a controlled substance. We need not address that argument in this case, however, because there was no Apprendi error. The Kameruds both received 240 month sentences, which are within the prescribed statutory maximum even if the jury had not been asked to find a specific drug quantity. See United States v. Aguayo-Delgado, 220 F.3d 926, 934 (8th Cir.2000) (explaining no Apprendi error occurs when a sentence is within the statutory maximum of 20 years authorized by 21 U.S.C. § 841(b)(1)(C) without reference to drug quantity).

III

The Kameruds raise numerous other pre-trial, trial, and sentencing issues, all of which we review for plain error because the Kameruds did not raise or preserve the claims in the district court. Under the plain error standard, we will only reverse obvious errors which affect a defendant's substantial rights and seriously affect the fairness, integrity, or public reputation of judicial proceedings. United States v. Evans, 272 F.3d 1069, 1080 (8th Cir.2001), cert. denied, 535 U.S. 1029, 122 S.Ct. 1638, 152 L.Ed.2d 642 (2002), and cert. denied, 535 U.S. 1072, 122 S.Ct. 1949, 152 L.Ed.2d 852 (2002), and cert. denied sub nom. Roberts v. United States, 535 U.S. 1087, 122 S.Ct. 1981, 152 L.Ed.2d 1038 (2002), and cert. denied, ___ U.S. ___, 123 S.Ct. 221, 154 L.Ed.2d 93 (2002).

Together, Cory and Brett contend the government failed to charge multiple conspiracies even though the evidence proved two separate conspiracies, one involving the events of the summer of 2000, and a second involving events which occurred in 2001. Even if we assume the Kameruds' contention is true, there is no plain error. The Kameruds did not request a jury instruction on multiple conspiracies, and cannot show any prejudice because, if there were two conspiracies, the Kameruds were parties to both. See United States v. Zimmerman, 832 F.2d 454, 457 n. 2 (8th Cir.1987) (rejecting a claim of prejudice where proof of multiple conspiracies varied from indictment charging single conspiracy, but evidence showed defendant was a party to each conspiracy).

Separately, Cory makes five claims. First, he contends the original indictment and superseding indictment² filed against him were defective because they recited a statutory penalty provision which required proof of just 50 grams or more of a mixture or substance containing methamphetamine (21 U.S.C. § 841(b)(1)(B)), even though he was charged with a conspiracy involving 500 grams or more (the amount required for a violation of 21 U.S.C. § 841(b)(1)(A)). No plain error occurred. The government necessarily proved a violation of § 841(b)(1)(B) by proving the greater amount required under § 841(b)(1)(A), and the 240 month sentence Cory received fell within the statutory maximum allowed under § 841(b)(1)(B), the penalty provision actually recited in the indictments. In other words, Cory can show no prejudice resulting from the government, in essence, "over-proving" a violation of § 841(b)(1)(B).

Second, Cory claims the government was required to renew its intent to seek an enhanced sentence under 21 U.S.C. § 851 after filing the superseding indictment. Cory also claims he was unaware of the original § 851 notice because it was provided to his attorney, not to him personally. Neither claim has merit. By its own terms, the statute permits notice to be served upon defense counsel. See 21 U.S.C. § 851(a)(1) ("No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon.") (emphasis added). Furthermore, the government is not required to refile a notice of enhanced sentence under 21 U.S.C. § 851 after the return of a superseding indictment. United States v. Wright, 932 F.2d 868, 882 (10th Cir.1991).

Third, Cory claims a violation of the Speedy Trial Act, 18 U.S.C. § 3161(c)(2),³ because his trial commenced the same day he was arraigned on the superseding indictment and he did not have 30 days to prepare for trial. The Speedy Trial Act does not require that the 30-day trial preparation period be restarted upon the filing of a superseding indictment. United States v. Rojas-Contreras, 474 U.S. 231, 234, 106 S.Ct. 555, 88 L.Ed.2d 537 (1985). The district court has discretion to grant a continuance upon the filing of a superseding indictment but "is not bound to exercise its broad discretion to grant a continuance unless the defendant would be prejudiced by a lack of time to prepare a defense to the charges in the superseding indictment." United States v. Punelli, 892 F.2d 1364, 1369 (8th Cir.1990). Since Cory did not request a continuance, and has...