U.S. v. Kuehne
| Citation | 547 F.3d 667 |
| Decision Date | 28 October 2008 |
| Docket Number | No. 06-3668.,06-3668. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. John David KUEHNE, Jr., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
ARGUED: Kevin M. Schad, Schad & Schad, Lebanon, Ohio, for Appellant. Benjamin C. Glassman, Assistant United States Attorney, Cincinnati, Ohio, for Appellee. ON BRIEF: Kevin M. Schad, Schad & Schad, Lebanon, Ohio, for Appellant. Benjamin C. Glassman, Assistant United States Attorney, Cincinnati, Ohio, for Appellee. John D. Kuehne, Jr., Terre Haute, Indiana, pro se.
Before: CLAY and McKEAGUE, Circuit Judges; BOYKO, District Judge.*
Defendant, John David Kuehne ("Kuehne"), appeals his conviction for one count of conspiracy to steal firearms from a federally licensed firearms dealer in violation of 18 U.S.C. § 371; two counts of aiding and abetting the theft of firearms from a firearms dealer in violation of 18 U.S.C. §§ 922(u), 2 and 924(i); three counts of possessing stolen firearms in violation of 18 U.S.C. §§ 922(j) and 924(a)(2); three counts of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g) and 924(a)(2); and three counts of use of a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c). Kuehne raises a number of challenges to his conviction. For the reasons that follow, we AFFIRM Kuehne's conviction.
In November of 2002, four individuals, Jeremy Fogt ("Fogt"), Daniel Minaya ("Minaya"), David Nunez ("Nunez") and Kuehne met in Columbus, Ohio and discussed an opportunity for the sale of an illegal drug popularly known as "ecstacy" at reduced prices. Fogt, Kuehne and Minaya were friends and frequently purchased and sold ecstacy to one another, with Nunez serving as the ultimate supplier. Nunez, who alternatively went by "Noonie" or "12 o'clock," was from New York City.
During the discussion, Nunez indicated that he was interested in obtaining semi-automatic weapons and that he was amenable to trading his supply of ecstacy for firearms. Kuehne and Fogt agreed to the guns for drugs exchange. Later, Kuehne and Fogt traveled back to their home in Sidney, Ohio. On the way home, the two discussed how they would obtain the guns to supply Nunez in exchange for ecstacy. The conversation soon turned to Fogt's cousin, Nathan Marlow ("Marlow"), who had previously stolen firearms without being caught. Marlow was later approached by Fogt and agreed to participate. Marlow then solicited the assistance of his friend, Justin Duckro ("Duckro"), who had a car that could be used during the robberies. Duckro agreed to help, in exchange for half of whatever Marlow received from the robberies.
In early December of 2002, Kuehne and Marlow selected and "cased" their first robbery target, Rich Mart Guns and Ammo. Later, Marlow and Duckro returned to Rich Mart and stole approximately fifty semi-automatic pistols. The guns were then taken to Fogt's house for storage. Thereafter, Kuehne and Fogt traveled to New York to exchange the weapons with Nunez. On the way, Kuehne delivered three guns to Minaya.
Upon meeting with Nunez, Kuehne exchanged thirty semi-automatic pistols for 1,000 pills of ecstacy. Although Kuehne and Fogt agreed to split the pills, Fogt later purchased Kuehne's share. Marlow received 200 pills, some of which were then given to Duckro.
In January of 2003, Kuehne, Marlow and Duckro selected the next robbery target, Craig's Gun Shop in North Lewisburg, Ohio. Marlow and Duckro later robbed the store, taking approximately twenty handguns and more than twelve assault rifles. Again, the weapons were stored at Fogt's house and Kuehne took the guns to New York for exchange with Nunez. Marlow also took a number of weapons and sold them in Tennessee.
In February of 2003, Marlow and Duckro robbed Niekamp's Flea Market in St. Henry, Ohio and stole over 100 semi-automatic pistols. Approximately one-half of the weapons was stored at Fogt's house and the other half was taken to New York. Prior to taking the trip to New York, Kuehne borrowed a car from a friend Andy Murray, in exchange for money and a gun.
To pay for the trip, Kuehne sold a number of guns in Sidney. Kuehne offered to sell the guns to three individuals, Robert Hilyard, Fred Hilyard and Jimmy Riggins, who declined. Eventually Kuehne, Fogt and Marlow made it to New York to barter the firearms with Nunez, and returned to Sidney with approximately 2,000 ecstacy pills.
Between late 2002 and early 2003, Kuehne made several trips to New York City to barter with Nunez. On one occasion Kuehne took his girlfriend, Lisa Hicks, along for the trip and stayed overnight at Nunez's after taking in the sights in New York. Upon return from a trip to New York, Duckro notified Kuehne that police had become aware of their activities because individuals had been caught in possession of the stolen weapons. Soon thereafter, Kuehne was arrested. While incarcerated at the county jail, Kuehne telephoned his mother regarding digital photographs of him and his girlfriend in New York. Kuehne "request[ed] her to go and get these two digital disks, and he stated to her that it was very, very important." (J.A. at 1244)
In May of 2003, a grand jury sitting in the Southern District of Ohio returned a fifteen-count indictment against Kuehne, Fogt, Marlow and Duckro. Kuehne was charged in twelve counts of the indictment. The indictment alleged one count of conspiracy to steal firearms from a federally licensed firearms dealer in violation of 18 U.S.C. § 371, two counts of aiding and abetting the theft of firearms from a firearms dealer in violation of 18 U.S.C. §§ 922(u), 2 and 924(i), three counts of possessing stolen firearms in violation of 18 U.S.C. §§ 922(j) and 924(a)(2), three counts of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g) and 924(a)(2), and three counts of use of a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c). Each count alleged in the indictment specified the involvement of one to two guns. Fogt, Marlow and Duckro entered into plea agreements with the government and Kuehne proceeded to trial on the offenses listed in the indictment.
Prior to trial, Kuehne filed a motion to suppress evidence gathered when police seized his cellular phone and obtained the names of a number of potential witnesses. The district court granted the motion in part and denied the motion in part. Thereafter, at Kuehne's trial in September of 2004, the government called a number of witnesses that participated in the gun robberies or the trips to New York, including Fogt, Marlow, Duckro, and Lisa Hicks. The government also called Robert Hilyard, Fred Hilyard and Jimmy Riggins to testify regarding Kuehne's attempt to sell them weapons. Altogether, the government offered evidence that over 200 firearms were involved in the offenses alleged in the indictment. In his defense, Kuehne alleged that he did not participate in any of the counts alleged in the indictment and called his mother as an alibi witness for the dates he was alleged to have been in New York. Following the dismissal of count 7 of the indictment, the jury returned a verdict of guilty as to all of the remaining counts.
Following his conviction, Kuehne, proceeding pro se, filed a motion for acquittal and a motion for new counsel. The district court granted Kuehne's motion for new counsel and denied his motion for a new trial after a hearing.
On May 10, 2006, the district court conducted Kuehne's sentencing hearing. The district court sentenced Kuehne to a sixty-month term of imprisonment for count 1, to run concurrently with a 120-month term of imprisonment for counts 6, 11 and 15. Kuehne was also sentenced to concurrent three-year terms of supervised release for counts 1, 2, 4, 5, 9, 10, 13 and 14, and concurrent five-year terms of supervised release for counts 6, 11 and 15.
Kuehne now timely appeals.
Kuehne argues that the district court erred when it failed to grant his motion for acquittal based on improper venue. The Court United States v. Zidell, 323 F.3d 412, 420-21 (6th Cir.2003) (citations omitted).
Kuehne asserts that venue was improper in the Southern District of Ohio because the actual trading of the guns for drugs took place in the city of New York. This argument is without merit.
"Venue is proper in the state or district where the offense was committed." United States v. Crozier, 259 F.3d 503, 519 (6th Cir.2001); see also U.S. Const. art. III, § 2, cl. 3 (); Fed.R.Crim.P. 18 (). As the Supreme Court noted in United States v. Rodriguez-Moreno, 526 U.S. 275, 281, 119 S.Ct. 1239, 143 L.Ed.2d 388 (1999), "where a crime consists of distinct parts which have different localities the whole may be tried where any part can be proved to have been done." Id. (quoting United States v. Lombardo, 241 U.S. 73, 77, 36 S.Ct. 508, 60 L.Ed. 897 (1916)). Thus, "[v]enue may be had in more than one location." United States v. Williams, 274 F.3d 1079, 1084 (6th Cir.2001).
In Rodriguez-Moreno, the Court found that venue in a prosecution for using or carrying a firearm "during and in relation to any crime of violence" in violation of 18 U.S.C. § 924(c)(1) is proper in any district where any part of the crime of...
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