U.S. v. Kienzle, 89-5302

• Decision Date: 20 February 1990
• Docket Number: No. 89-5302,89-5302
• Citation: 896 F.2d 326
• Parties: UNITED STATES of America, Appellee, v. Rick Roland KIENZLE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 326

896 F.2d 326

UNITED STATES of America, Appellee, v. Rick Roland KIENZLE, Appellant.

No. 89-5302.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 17, 1990.

Decided Feb. 20, 1990.

David G. Roston, Minneapolis, Minn., for appellant.

Elizabeth de la Vega, Minneapolis, Minn., for appellee.

Before BOWMAN, WOLLMAN and BEAM, Circuit Judges.

BOWMAN, Circuit Judge.

Rick Roland Kienzle appeals his convictions on counts of filing false tax returns for the 1983 and 1984 calendar years by understating his income, a violation of 26 U.S.C. Sec. 7206(1) (1982) (Counts I and II); filing a false tax return for the 1985 calendar year by misstating his source of income, a violation of 26 U.S.C. Sec. 7206(1) (Count III); and conspiracy to distribute cocaine, a violation of 21 U.S.C. Sec. 846 (1988) (Count IV). We affirm.

In 1981, Kienzle met Joseph Sazenski, a drug dealer who pleaded guilty in 1986 to operating a continuing criminal enterprise. The two men began doing business together. Although Kienzle maintains that his relationship with Sazenski was strictly legitimate, the Government's proof shows that Kienzle, supervised by Sazenski, transported over one million dollars worth of cocaine into the state of Minnesota between 1983 and 1986.

Kienzle and Sazenski travelled to California in the early 1980's where they met David Immel. Immel, the right hand man of a high level narcotics trafficker named Michael Dawson ¹, sold them a large quantity of homegrown marijuana. After assisting with the packing of the marijuana, Kienzle allegedly transported it to Minnesota. In 1983, Kienzle and Sazenski returned to California. Immel introduced the pair to Dawson. Their meeting, which took place at Dawson's ranch in Oroville, California, resulted in another purchase of a large quantity of California-grown marijuana. Again, Kienzle transported the marijuana to Minnesota for Sazenski.

By 1984, Dawson was dealing exclusively in cocaine. Sazenski would make arrangements to buy several kilos of cocaine at a time from Dawson's ranch in Oroville. Both Sazenski and Kienzle would carry the cash to make the purchase. Sazenski paid Kienzle between $50,000.00 and $60,000.00 a year in 1984 and 1985 to transport the cocaine to Minnesota, where he would either leave it with Sazenski or drop it at a "stash house." When Dawson moved his operations to Florida, and later to Dallas, Kienzle made trips to those places to pick up cocaine and deliver it to Minnesota. Dawson obviously trusted Kienzle. His personal telephone book contained Kienzle's number, and his tolls reflected a number of calls to Kienzle's phone.

On one occasion in Minnesota, Sazenski told his cousin Dennis Sazenski that he was unable personally to make a cocaine delivery. Instead, the drop would be made by "Rick," described by Sazenski as his partner. Rick Kienzle delivered the cocaine to Dennis Sazenski at a hotel parking lot in Bloomington. When Dennis commented that the cocaine looked nice, Kienzle replied to the effect that they only dealt in the best.

Sazenski and Kienzle apparently did not restrict their dealings to the Dawson organization. In March 1985, Sazenski met with Peyton Eidson in Kelseyville, California to organize the purchase and shipment of large quantities of marijuana. To this end, Eidson and Sazenski travelled from Santa Barbara, California to Singapore to arrange for a load of Thai marijuana to be shipped to the United States. In May 1985, Kienzle journeyed to Singapore to deliver money to Eidson for the marijuana shipment. The marijuana arrived in California for intended distribution in California and other states.

On January 14, 1988, Kienzle was indicted in the United States District Court for the Northern District of California in connection with the Eidson import scheme for conspiracy to import marijuana, 21 U.S.C. Sec. 963 (1988); for conspiracy to distribute and possess with the intent to distribute marijuana, 21 U.S.C. Sec. 846; and for distributing marijuana and possessing it with the intent to distribute, 21 U.S.C. Sec. 841(a)(1) (1988). He was convicted on the two conspiracy charges and was acquitted on the distribution charge.

Kienzle's dealings with the Dawson organization did not escape the notice of federal authorities. On April 7, 1988, he was indicted in the United States District Court for the District of Minnesota on the income tax and cocaine charges now at issue in this appeal. Kienzle moved, without success, to dismiss Count IV, conspiracy to distribute cocaine, on Double Jeopardy grounds, claiming that the conspiracy of which he already had been convicted in California was the same conspiracy now charged in Minnesota. The District Court ² denied the motion.

At Kienzle's Minnesota trial, Joseph Sazenski, Dennis Sazenski, and David Immel, among others, testified concerning the cocaine conspiracy described above and Kienzle's role in the conspiracy. As to the tax charges, the Government introduced numerous financial records and the testimony of a Special Agent and a Revenue Agent. The jury found Kienzle guilty as charged on all counts.

While in prison awaiting sentencing, Kienzle met Mark Chapman, who was acquainted with Dennis Sazenski. Chapman told Kienzle that Dennis Sazenski had confided to Chapman, prior to Kienzle's trial, that he was about to testify about a cocaine transaction with Kienzle, whom he had never met, on the orders of his cousin Joseph Sazenski. Armed with Chapman's affidavit, Kienzle filed a motion for a new trial on the basis of newly discovered evidence. The District Court denied the motion and sentenced Kienzle to three years on each of Counts I, II, and III and fifteen years on Count IV, all the sentences to be served concurrently.

On appeal to this Court, Kienzle contends that: (1) the Double Jeopardy Clause prohibited his trial in Minnesota on the cocaine conspiracy charge after he had been tried in California on the conspiracy charges arising out of the Thai marijuana caper; (2) the District Court abused its discretion in denying his motion for a new trial; (3) the evidence was insufficient to prove guilt beyond a reasonable doubt; and (4) the District Court abused its discretion in sentencing.

I.

Kienzle argues that the Government has carved two conspiracies out of a single conspiracy and therefore that the Double Jeopardy Clause prohibited his trial in Minnesota on the cocaine conspiracy after he had been tried in California on the marijuana conspiracy. The Double Jeopardy Clause of the Fifth Amendment protects against multiple prosecutions for the same offense. Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 306-07, 104 S.Ct. 1805, 1812, 80 L.Ed.2d 311 (1984). The Clause further prohibits the subdivision of a single conspiracy into multiple violations of one conspiracy statute. Braverman v. United States, 317 U.S. 49, 52-54, 63 S.Ct. 99, 101-02, 87 L.Ed. 23 (1942). In determining whether multiple conspiracies exist, this Court employs a "totality of the circumstances" test. See United States v. Thomas, 759 F.2d 659, 662 (8th Cir.1985). Under this test, the following five factors are to be considered: "(1) time; (2) persons acting as co-conspirators; (3) the statutory offenses charged in the indictments; (4) the overt acts charged by the government or any other description of the offenses charged which indicate the nature and the scope of the activity which the government sought to punish in each case; and (5) places where the events alleged as part of the conspiracy took place." Id. A careful examination of these factors convinces us that two separate conspiracies properly have been charged.

1. Time

The California indictment charges a conspiracy beginning no later than March 1985 and continuing to August 1985. The conspiracy charged in Minnesota began in January 1983 and ended in 1986. While there is an overlap in the time periods, the conspiracy charged in the Minnesota indictment both predated and continued beyond the ending date of that charged in California.

2. Identity of Co-Conspirators

With the exception of Joseph Sazenski and Kienzle, none of the co-conspirators named in the California indictment were implicated in the instant case. It appears that Sazenski and Kienzle are the only common co-conspirators and that each conspiracy involved a significant number of other individuals.

3. Offenses Charged

The California indictment charged: (1) conspiracy to import marijuana, 21 U.S.C. Sec. 963; (2) conspiracy to distribute and possession with the intent to distribute marijuana, 21 U.S.C. Sec. 846; and (3) distribution and possession with the intent to distribute marijuana, 21 U.S.C. Sec. 841(a)(1). Charged in the indictment in Minnesota are three violations of 26 U.S.C. Sec. 7206(1) for filing false tax returns, and a violation of 21 U.S.C. Sec. 846 for conspiracy to distribute cocaine.

While both indictments charge, among other things, a...