U.S. v. Lenfesty

• Decision Date: 09 January 1991
• Docket Number: Nos. 90-5132MN,s. 90-5132MN
• Parties: 32 Fed. R. Evid. Serv. 538 UNITED STATES of America, Appellee, v. Gary James LENFESTY, a/k/a Gary James Leufesty, Appellant. UNITED STATES of America, Appellee, v. Robert Richard REDINGER, Appellant. UNITED STATES of America, Appellee, v. Dennis Craig SMITH, Appellant. UNITED STATES of America, Appellee, v. Twila Sue SMITH, Appellant. UNITED STATES of America, Appellee, v. Larry Dean BAKKE, a/k/a "LOCO," Appellant. to 90-5135MN and 90-5169MN.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1293

923 F.2d 1293

32 Fed. R. Evid. Serv. 538

UNITED STATES of America, Appellee, v. Gary James LENFESTY, a/k/a Gary James Leufesty, Appellant.

UNITED STATES of America, Appellee, v. Robert Richard REDINGER, Appellant.

UNITED STATES of America, Appellee, v. Dennis Craig SMITH, Appellant.

UNITED STATES of America, Appellee, v. Twila Sue SMITH, Appellant.

UNITED STATES of America, Appellee, v. Larry Dean BAKKE, a/k/a "LOCO," Appellant.

Nos. 90-5132MN to 90-5135MN and 90-5169MN.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 12, 1990.

Decided Jan. 9, 1991.

Robert G. Malone, St. Paul, Minn., for appellant Gary James Lenfesty.

Scott E. Tilsen, Minneapolis, Minn., for appellant Robert Richard Redinger.

Paul Engh, Minneapolis, Minn., for appellant Dennis Craig Smith.

Douglas A. Myren, Minneapolis, Minn., for appellant Larry Dean Bakke.

Bruce H. Hanley, Minneapolis, Minn., for appellant Twila Sue Smith.

James E. Lackner, Minneapolis, Minn., for appellee U.S.

Before ARNOLD and MAGILL, Circuit Judges, and BATTEY, ^* District Judge.

ARNOLD, Circuit Judge.

In these appeals five individuals, members of a methamphetamine distribution conspiracy, challenge their convictions and sentences. They allege constitutional and evidentiary errors at trial, as well as mistakes in the computation of their sentences. Because their contentions either lack merit, or (if well-founded) were incidental and harmless errors, we affirm.

I.

In the fall of 1988 and the spring of 1989, Agent Paul Stevens of the Minnesota Bureau of Criminal Apprehension investigated a methamphetamine distribution ring centered in Rochester, Minnesota. His goal was to work his way up the distribution chain, snaring as many participants from as many levels as possible. Over a six-month period, Agent Stevens purchased "crank," that is, methamphetamine, nine times. He made those purchases from three related dealers: Robert Redinger, Dennis Smith, and Twila Smith. The Smiths are brother and sister; Twila Smith lives with Redinger. In each of the nine buys, Stevens approached one of these three people, who in turn contacted their supplier: Gary Lenfesty. On the occasions Dennis Smith participated in the transactions, he went through Redinger, who then called Lenfesty to complete the sale. During the other seven drug buys, either Twila Smith or Redinger contacted Lenfesty directly after a request from Agent Stevens.

Though the three dealers and Agent Stevens all lived in Rochester, Minnesota, the actual sales took place in Stewartville, Minnesota. Lenfesty, the wholesaler, lived there in the bottom of a two-story house that had been converted to a duplex. Larry Bakke, Lenfesty's supposed partner, lived upstairs. Whichever of the dealers happened to be a part of a given transaction would, after touching base with Lenfesty, drive with Agent Stevens to Stewartville. On every occasion but one Stevens was dropped off at a gas station near the house in which Lenfesty and Bakke lived. The dealer--either Twila Smith or Redinger--then went to Lenfesty's, bought the crank, picked up Stevens, and consummated the deal on the return trip. During the first transaction, while Redinger made the initial buy, Agent Stevens waited in the car in front of Lenfesty's house. Lenfesty's rightly placed suspicions led to the later drop-off strategy, but came too late to prevent surveillance of his home during those transactions.

The cast of characters shifted between sales. Agent Stevens initially contacted Redinger, who participated in the first five of the nine sales before checking into a drug-treatment program. Dennis Smith played a part in two of those sales. Both times, after locating Redinger for Agent Stevens, he accompanied them to Stewartville, waited with Stevens at the gas station, and received a share of the methamphetamine after returning to Rochester for his role in the deal. Twila Smith became the link to the supplier when Redinger was no longer available. She made the calls to Lenfesty, and traveled with Stevens to get the drugs from him in Stewartville. None of the purchases directly involved Larry Bakke. He was linked to the conspiracy in two ways: through the statements of Redinger and Twila Smith characterizing him as Lenfesty's partner and supplier, and through the evidence obtained when his and Lenfesty's house was searched.

Agent Stevens's investigation ultimately failed to move any further up the distribution ladder. Try as he might, he never succeeded in persuading one of the dealers to introduce him to their supplier, much less to any drug operative above Lenfesty. When that goal no longer seemed attainable, Stevens closed the net. After the last transaction Twila Smith and Lenfesty were arrested, and search warrants were executed at the Lenfesty-Bakke home. Tools of the drug trade--baggies, contraband, scales, lots of cash--were located in both parts of the duplex. Dennis Smith and Redinger were located soon after. Indictments followed. ¹ Redinger pleaded guilty, cooperated with the government, and testified against his co-defendants. The other four people were tried together, though they all sought separate trials. ² A jury convicted all of them on each count charged. These appeals by each of the five individuals--Bakke, Lenfesty, Twila Smith, Dennis Smith, and Redinger--followed.

II.

Each appellant questions the proceedings below in several respects. The alleged error with the most proponents involves the admission of statements made by Twila Smith that are supposedly unreliable. Twila Smith didn't testify. Her statements came into evidence in two ways: through Agent Stevens's testimony about his contacts with her and the other conspirators, and through several tape-recorded conversations between her and Agent Stevens. Stevens testified that Smith said Lenfesty and Bakke were partners, that they didn't sell to each other's customers, that they tried to limit their group of customers to avoid discovery, that she had been doing business with Lenfesty for a long time, and that she knew all about this methamphetamine organization. Most of this information was also in the recorded conversations. The parties come at these statements in two ways. Lenfesty argues that the trial court must find that co-conspirator's statements are reliable before admitting them into evidence. Some of Smith's weren't, he continues, because she lacked personal knowledge of his relationship with Bakke or the methamphetamine organization. In addition to the dispute over admissibility, Lenfesty and Bakke also sought wider latitude than the District Court accorded them for impeachment of Smith's statements. Twila Smith had prior felony convictions. They argue that it was error to prevent the jury from considering those convictions in evaluating her credibility.

At oral argument, Lenfesty refined his first contention. The issue here, he now agrees, is not the reliability of co-conspirator statements in general. That is settled by Rule 801(d)(2)(E) of the Federal Rules of Evidence which, if a court finds that a conspiracy exists and that a given statement was made in furtherance of the conspiracy, allows that statement to be admitted. Rather, Lenfesty is troubled by alleged hearsay statements within Twila Smith's comments. Neither Rule 801(d)(2)(E) nor Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987), which the District Court relied upon, sanctions hearsay within admissible co-conspirator's statements without a further finding of reliability. The rule is not an open door of admissibility. Just as a co-conspirator's statement is excluded from the category of hearsay, any hearsay within a co-conspirator's statement must also fall within some exception to the rules against admitting hearsay in order to serve as evidence. This proposition is embodied in Rule 805's treatment of hearsay within hearsay.

Did the District Court err, then, by admitting some of Smith's statements--through Agent Stevens's testimony and the co-conspirator exception--that contained another layer of hearsay? We do not believe so. Smith's own observations support most of her statements. She, of course, knew her own history of drug deals with both Lenfesty and Bakke. From those transactions flows her awareness of how they tried to keep their customers separate. Her dealings with Lenfesty on Agent Stevens's behalf bear out Lenfesty's reluctance to widen his circle of known customers. Smith's dealings and observations also support, to a large extent, her statements that Lenfesty and Bakke were partners. Their partnership is also illustrated by the many connections Smith made between Lenfesty's supply of drugs and Bakke's travels and efforts when Agent Stevens sought to buy methamphetamine. In sum, there is no discernible hearsay within Twila Smith's statements. Nor is it fatal to her testimony, if, in fact, any of her comments to Agent Stevens was based on the statements of Lenfesty or Bakke rather than on her own independent knowledge. That potential additional layer of hearsay would also be excusable as the statements of other co-conspirators. Lenfesty's contention here, cast in terms of reliability, but actually concerning alleged hearsay within a co-conspirator's statements, is thus not supported by the record.

The parties' assertions about an insufficient opportunity for impeachment of Smith's statements once they were admitted are similarly misplaced. Some impeachment, based on Twila Smith's reputation for truthfulness, was allowed. The District Court, however, did not allow the introduction of any of her numerous prior felony convictions. Lenfesty and Bakke urge that this ruling was unnecessarily grudging. They point to Bourjaily's dictum suggesting the introduction of prior felony convictions as a proper method of impeachment. Bourjaily, 483 U.S. at 180, 107 S.Ct. at 2781. There is a tug-of-war here. Enough impeachment of a non-testifying co-defendant ...