U.S. v. McClellon

• Decision Date: 27 August 2009
• Docket Number: No. 08-3249.,08-3249.
• Citation: 578 F.3d 846
• Parties: UNITED STATES of America, Appellee, v. Robert Lee McCLELLON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

578 F.3d 846

UNITED STATES of America, Appellee, v. Robert Lee McCLELLON, Appellant.

No. 08-3249.

United States Court of Appeals, Eighth Circuit.

Submitted: June 12, 2009.

Filed: August 27, 2009.

Mark Meyer, argued, Cedar Rapids, IA, for appellant.

Richard D. Westphal, AUSA, argued, Davenport, IA, for appellee.

Before MURPHY, SMITH, and SHEPHERD, Circuit Judges.

SMITH, Circuit Judge.

Robert McClellon was convicted of possession with intent to distribute at least five grams of cocaine base, also known as "crack cocaine," in violation of 21 U.S.C. § § 841(a)(1) and (b)(1)(B) and sentenced to the statutory mandatory minimum of 120 months' imprisonment. On appeal, McClellon argues that (1) insufficient evidence exists to support the jury's finding that he possessed with intent to distribute at least five grams of crack cocaine; (2) the district court¹ abused its discretion in denying his motion for a new trial; and (3) the statutory mandatory minimum sentence for crack cocaine is unconstitutional. We affirm.

I. Background

During the morning hours of September 10, 2007, Southeast Iowa Narcotics Task Force (SEINT) Investigator Eldon Melssen was conducting surveillance at McClellon's residence. Investigator Melssen observed a vehicle parked near McClellon's residence. Two of the five occupants of the vehicle—a male and a female—exited the vehicle, walked to the residence, and entered the residence. After staying in the residence for approximately ten minutes, the two individuals left the residence and rejoined the three other persons in the vehicle.

Investigator Melssen called the station to have the license plate number matched to the registered owner. Unsuccessful, he then requested the assistance of Task Force Investigator Chris Chiprez. Investigator Chiprez stopped the vehicle after it left McClellon's residence. Investigator Melssen went to the location of the stopped vehicle and observed the two individuals who had previously entered McClellon's residence sitting in the backseat. These individuals were identified as Karen Leeson and David Jeffrey. Investigator Chiprez found a tobacco pouch containing a green leafy substance in the vehicle that he believed to be marijuana. Leeson and Jeffrey agreed to cooperate with the investigators and were later released from the scene without being charged.

Using information gathered from their investigation, SEINT officers applied for, and were granted, a state warrant to search McClellon's residence. During the afternoon of September 10, 2007, officers executed the search warrant. As the officers approached the residence, they observed several individuals present inside and outside of the residence. Those present included Jerry Clark, Jamall Gant, Timothy Fleming, Diana Cooper, Sonya Andries, and McClellon. Investigator Melssen testified that two females were present at the time of the search warrant but that he was unaware that either of them lived at the residence.

During the search, officers seized the following items: (1) a large assortment of pill bottles and accompanying prescription pills located throughout the bedroom and in containers on a series of bedroom shelves; (2) a Winchester Model 1200 shotgun found under the bed in the bedroom; (3) six assorted scales found in the bedroom; (4) a pair of pants found on the floor of the bedroom containing an Iowa identification card for "Robert Lee McClellon," a pill bottle containing 6.45 grams of crack cocaine, a baggie of pink pills, later identified as alprazolam, and a baggie containing 3.80 grams of marijuana; (5) a jacket found in the bedroom containing a baggie of 91.21 grams of marijuana; (6) a purse found in the bedroom containing some pills; (7) one hitter marijuana pipe found under the bed in the bedroom; (8) one marijuana bong found on a shelf in the bedroom; (9) one cigarette pack containing a pipe consistent with the type used to ingest crack cocaine found in a duffel bag in the living room; (10) one pipe consistent with the type used to smoke crack cocaine found on the floor in the living room; (11) six food stamp cards found at various locations in the bedroom; (12) one Marlin 12-gauge bolt action rifle found in the corner of the bedroom; (13) two crack pipes found in the basement; and (14) assorted firearm ammunition found in the bedroom.

McClellon was indicted for possession with intent to distribute at least five grams of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). The government notified McClellon of a possible sentence enhancement based on a prior conviction for a felony drug offense.

At trial, Leeson testified that in September 2007 she was getting marijuana from McClellon. Beginning in approximately April 2007, Leeson went to McClellon's residence and received marijuana two to five times a week. Normally, Leeson would go into the bedroom with McClellon and tell him how much marijuana she wanted. McClellon would then weigh out the marijuana on an electronic scale. McClellon would not have the marijuana individually bagged ahead of time. Leeson confirmed that McClellon was the individual who always distributed the marijuana to her and stated that McClellon "always took care of his own business." According to Leeson, on one occasion she smoked marijuana with McClellon at the house but never saw him use crack cocaine. She recalled seeing others go into the bedroom to meet with McClellon. She also testified to purchasing Xanax and Valium from McClellon for one dollar per pill.

Keri Christofferson, who had previously lived with McClellon at two locations, including for about one year at his current residence, testified pursuant to a cooperation plea agreement with the government. She described for the jury the current status of her mental health, her medications, and her past drug use. According to Christofferson, after moving out of McClellon's residence in March or April 2007, she continued visiting the residence three to four times per week. While at the residence, Christofferson saw McClellon use marijuana and pills but never saw him use crack cocaine. She testified that she would use crack cocaine almost every time that she visited McClellon's residence and that she recalled getting crack cocaine from McClellon.

While living with McClellon, Christofferson observed McClellon distribute crack cocaine "every day." She recalled that McClellon would get crack cocaine in increments of seven to 14 grams but that at no time did she ever see McClellon use any of this crack cocaine. Often, Christofferson would act as the middle person between McClellon and crack customers. She stated that sometimes other people living in the house had her go into McClellon's bedroom and purchase crack for them.

According to Christofferson, in exchange for the crack that he distributed, McClellon accepted payment in the form of cash, jewelry, tools, clothing, and guns. Specifically, in July or August 2007, Christofferson recalled exchanging two guns for $50 worth of crack and $20 in cash. SEINT officers seized those guns during the search on September 10. She also testified that McClellon kept his crack cocaine in a little pill bottle in his bedroom and also kept both pills and marijuana in his room. She identified some pink pills seized out of a pair of pants as the pills that she had previously sold to McClellon. She testified that she personally sold food stamp cards to McClellon and also observed other people trade these same type of cards to McClellon in exchange for crack, marijuana, or cash. According to Christofferson, she also observed other individuals trading pills for crack, marijuana, or cash.

Christofferson identified from a photograph a scale and a knife that McClellon used to cut and weigh crack and marijuana for redistribution. She recalled seeing McClellon with several different scales. She provided a detailed account and recognition of various items seized out of McClellon's room and the various containers and locations in which McClellon hid his crack, marijuana, and pills. She testified that she was personally aware of two individuals that lived in McClellon's basement, both of whom used crack pipes made out of metal fittings.

Iowa Division of Narcotics Enforcement Special Agent Tani Tanio explained that, based on her education, training, and experience, cocaine base was normally used and purchased by users in quantities ranging from 1/4 gram to .8 grams. She testified that amounts in 1/8 ounce and above were normally consistent with quantities for distribution rather than personal usage. According to Agent Tanio, the 5.45 grams of cocaine base seized from McClellon's bedroom were consistent with a quantity normally associated with distribution.

Jackie McClellon, McClellon's estranged wife, testified on McClellon's behalf. According to Jackie, she had been married to McClellon for 20 years but lived separate from McClellon for the last ten years. She testified that McClellon had lived at his current residence for 25 years. She stated that she visited the residence one to three times a week and never saw any marijuana, cocaine, or pills around the house. She testified that McClellon took medications for his diabetes, congestive heart failure, and hypertension. And, although Jackie admitted to seeing McClellon smoke marijuana at the residence, she denied ever seeing anything that looked like crack cocaine in the residence.

The jury found McClellon guilty of possession with intent to distribute crack cocaine and additionally found beyond a reasonable doubt that McClellon was responsible for five grams or more of crack cocaine. McClellon filed a motion for a new trial and a motion for judgment of acquittal. He argued that the district court should grant his motion for judgment of acquittal because insufficient evidence supported the verdict that he possessed with intent to distribute at least five grams of crack cocaine. He asserted that the district court...