U.S. v. Maza, s. 95-1273

• Decision Date: 27 August 1996
• Docket Number: 95-1932,95-1933 and 95-2138,Nos. 95-1273,s. 95-1273
• Citation: 93 F.3d 1390
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Isaias MAZA, also known as Joe, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Richard Anthony LEIPHARDT, also known as Tony, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Douglas WALKER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellant, v. Richard Anthony LEIPHARDT, also known as Tony; Jeffrey Douglas Walker, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1390

93 F.3d 1390

UNITED STATES of America, Plaintiff-Appellee, v. Jose Isaias MAZA, also known as Joe, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Richard Anthony LEIPHARDT, also known as Tony, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Douglas WALKER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellant, v. Richard Anthony LEIPHARDT, also known as Tony; Jeffrey

Douglas Walker, Defendants-Appellees.

Nos. 95-1273, 95-1932, 95-1933

and 95-2138.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 14, 1996.

Decided Aug. 27, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied in Nos. 95-1273

and 95-1933 Oct. 3, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied in No.

95-1932 Nov. 26, 1996.

David Warg, St. Paul, MN, argued, for appellant Maza.

Charles Hawkins, Minneapolis, MN, argued, for appellant Leiphardt.

Nathan Petterson, Asst. U.S. Attorney, Minneapolis, MN, argued, for appellee.

Before McMILLIAN, LAY, and HANSEN, Circuit Judges.

HANSEN, Circuit Judge.

Jose Isaias Maza, Richard Anthony Leiphardt, and Jeffrey Douglas Walker appeal from their convictions on drug charges pursuant to 21 U.S.C. §§ 841(a)(1) and 846. Maza and Walker also contend the district court erred in calculating their sentences. The government cross appeals, seeking remand and resentencing of Leiphardt under the Sentencing Guideline provisions for d-methamphetamine. We affirm on the appeals and reverse and remand for resentencing on the cross appeal.

I.

This case involves a conspiracy to sell large quantities of methamphetamine in central Minnesota. Viewed in the light most favorable to the jury's verdict, see United States v. Cunningham, 83 F.3d 218, 222 (8th Cir.1996), the evidence reveals the following facts.

In approximately 1990, one Michael Huggett, then a resident of California, began purchasing methamphetamine from Wesley Arnold of Pomona, California. Arnold's source for the methamphetamine was Richard Anthony Leiphardt, also known as Tony. Huggett originally purchased a few ounces of methamphetamine at a time and mailed the drugs to Minnesota for distribution. The quantity of methamphetamine eventually increased to approximately one-half pound per shipment. When Huggett moved to Minnesota, Arnold began mailing the methamphetamine to Huggett.

In January 1991, law enforcement officers intercepted a package containing one-half pound of methamphetamine sent from Arnold to Huggett. Huggett was arrested but was acquitted on the charges. Not long after his acquittal, Huggett resumed his drug dealings. To avoid detection by law enforcement officers, he solicited Peter Verdon to transport the methamphetamine from California to Minnesota.

At first, Verdon dealt with Arnold, who had purchased the drugs from Leiphardt, but Verdon eventually went around Arnold and obtained the methamphetamine directly from Leiphardt. In the summer of 1992, when Verdon went to California to purchase methamphetamine for Huggett, Arnold and Leiphardt met him at Arnold's residence. They told Verdon they wanted to deal with him, rather than Huggett, because Huggett was not paying his bills. Verdon purchased a pound of methamphetamine, and thereafter Huggett became Verdon's customer, and Verdon was no longer a courier for Huggett.

Under Verdon's management, the methamphetamine business grew, with Verdon eventually purchasing five pounds of methamphetamine from his California suppliers every six to eight weeks. Arnold paid Leiphardt $8,500 per pound of methamphetamine and, in turn, sold it to Verdon for $15,000 per pound.

After a period of time, Leiphardt increased the price he was charging Arnold for the drugs to $11,500 per pound. Arnold responded by finding a new supplier, Jose Isaias Maza. Maza charged Arnold only $7,500 per pound, and Arnold and Maza split the profits generated from selling the methamphetamine to Verdon. Not surprisingly, since the laws of economics apply to both legal and illegal enterprises, Leiphardt then reduced his prices. From that point on, Arnold purchased methamphetamine from both Maza and Leiphardt. Sometimes the methamphetamine Arnold sold to Verdon had been supplied in part by Maza and in part by Leiphardt. For example, Verdon met Arnold and Leiphardt in Las Vegas in January 1993 and bought four pounds of methamphetamine, two from Leiphardt and two from Arnold supplied by Maza.

At one point, Leiphardt telephoned Verdon, seeking to become Verdon's sole supplier. The two agreed that Leiphardt would fly to the Minneapolis-St. Paul Airport, where Verdon would pick him up. According to plan, Verdon picked up Leiphardt at the airport on July 10, 1993, and the two drove to Cosmos, Minnesota. They then drove to a motel in Sioux Falls, South Dakota, where they met Jeffrey Walker, an associate of Leiphardt who had transported the methamphetamine from California in Leiphardt's red pickup truck. Leiphardt and Verdon removed the spare tire from the pickup truck and brought it into the motel room. There, they removed from the tire approximately three pounds of methamphetamine, which Verdon purchased. Leiphardt and Verdon discussed using a storage locker in Sioux Falls to store methamphetamine in the future.

A few weeks later, Verdon and Leiphardt again met in Sioux Falls. As before, Walker couriered the methamphetamine--this time approximately ten pounds--from California in Leiphardt's pickup truck. Verdon purchased about five pounds of the methamphetamine. He also returned to Leiphardt some methamphetamine that lacked potency. Verdon had purchased the "bad batch" of methamphetamine from Arnold, who had received it from Maza. Leiphardt took the methamphetamine and told Verdon he would return it to Arnold. (Leiphardt never did give the drugs to Arnold.) About three weeks later, Verdon purchased another five pounds of methamphetamine from Leiphardt.

Around the time of this last transaction, Maza contacted Verdon, seeking to deal directly with him. Verdon and Maza arranged to meet in Nevada, where Verdon exchanged a 1968 Corvette and cash for approximately five pounds of methamphetamine. Still owing on the drugs, Verdon subsequently gave Maza a 1974 Corvette as additional payment.

On January 11, 1994, Verdon and his wife flew to Las Vegas. He telephoned Maza several times, charging the calls on his telephone credit card. He and his wife drove a rented car to San Bernadino, California, where he was to purchase five pounds of methamphetamine from Maza. En route, he called to tell Maza he was on his way. Maza gave Verdon the number for Maza's pager. When Verdon arrived in San Bernadino, he stopped to page Maza from a pay phone. Maza called Verdon back and arranged the meeting place.

Verdon and his wife checked into a hotel. A few hours later, he went to the appointed place, where Ismael Avila delivered a box wrapped as a wedding gift. Verdon gave Avila five envelopes, each containing $10,000 cash. Verdon took the package back to his motel and unwrapped it. It contained five pounds of methamphetamine. Verdon and his wife later checked out of the hotel and went to a restaurant. When they left the restaurant, police officers approached them, searched the trunk of the car, and upon discovering the methamphetamine, arrested Verdon.

Verdon was interviewed in San Bernadino by special agents of the Minnesota Bureau of Criminal Apprehension (MBCA) and by a local police officer. He told the officers he had another source named "Tony," who was later identified as Richard Anthony Leiphardt, from whom he had purchased multi-pound quantities of methamphetamine. He also explained that an associate of Tony's (Jeffrey Walker) transported the methamphetamine to Sioux Falls in Leiphardt's red pickup truck. At the conclusion of the interview the officers released Verdon and told him he should contact an agent with the MBCA if he wished to cooperate in the investigation.

Verdon contacted the agent on January 22, 1994, advising him that Leiphardt had called and was on his way to Verdon's residence. Based on past experience, Verdon expected that Leiphardt had methamphetamine in Sioux Falls. The agent asked Verdon to delay the deal for a few days to give the agent time to plan for it. The agent called an officer of the Cosmos Police Department and asked the officer to conduct a surveillance on Verdon's home.

While conducting the surveillance, the officer saw a red Toyota pickup truck with California license plates stop at Verdon's residence. The truck was registered to Leiphardt. Having been instructed to obtain the identities of the people in the truck, the officer stopped the truck for having too high a bumper. ¹ The driver identified himself as Walker, and the passenger identified himself as Leiphardt. After obtaining the identities of the occupants of the truck, the officer allowed them to proceed, without conducting a search. Leiphardt and Walker left without meeting with Verdon.

The next morning, officers in Sioux Falls, South Dakota, located Leiphardt's pickup truck outside of a motel. They began watching the vehicle. It was determined that if the vehicle went south or west, it should be stopped. If the vehicle traveled east, however, they would allow it to proceed, for a drug deal with Verdon might transpire.

When the truck began travelling west, a state trooper stopped the vehicle for failure to signal a lane change, for speeding, and for failure to affix a front license plate as required under California law. The trooper asked Leiphardt if there were any weapons in the vehicle. Leiphardt responded affirmatively. At the trooper's request, Leiphardt revealed in a duffel bag a loaded .380 semi-automatic handgun, a 12 gauge assault-style shotgun, a 9 millimeter semi-automatic handgun, and large quantities of ammunition. Under South Dakota law, it is unlawful to possess a loaded weapon in a vehicle. S.D.Codified Laws §§ 22-14-9, 22-6-2 ...