U.S. v. Menting

• Citation: 166 F.3d 923
• Decision Date: 25 February 1999
• Docket Number: Nos. 97-2661,97-2662,s. 97-2661
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Patrick MENTING and Dennis Tushoski, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 923

166 F.3d 923

UNITED STATES of America, Plaintiff-Appellee, v. Patrick MENTING and Dennis Tushoski, Defendants-Appellants.

Nos. 97-2661, 97-2662.

United States Court of Appeals Seventh Circuit.

Argued Jan. 14, 1998.

Decided Feb. 3, 1999.

Rehearing and Suggestion for Rehearing En Banc Denied Feb. 25, 1999.

John W. Vaudreuil (argued), Peggy A. Lautenschlager, Office of the U.S. Attorney, Madison, WI, for U.S.

Stephen J. Meyer, Madison, WI, for Patrick Menting.

Bruce J. Rosen, Susan C. Blesener (argued), Pellino, Rosen, Mowris & Kirkhuff, Madison, WI, for Dennis Tushoski.

Before FLAUM, EASTERBROOK, and DIANE P. WOOD, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

Like many others before them, Patrick Menting and Dennis Tushoski were charged with, and convicted of, conspiring to distribute cocaine in violation of 21 U.S.C. § 846. Both men now claim that their convictions are infirm because the district court did not instruct the jury properly. In addition, Menting asserts that his conviction was unsupported by the evidence, and Tushoski believes that the district court should not have enhanced his sentence for obstruction of justice. Finding no errors with the district court's judgment, we affirm.

I

Menting and Tushoski conducted their cocaine business in the Eagle River, Wisconsin area between 1988 and 1996. Their supplier was one Stephen Pszeniczka, who for eight years made nearly weekly trips from Eagle River to Milwaukee to purchase cocaine. Pszeniczka typically returned with approximately one ounce of uncut cocaine.

Although the individual quantities were small, Pszeniczka was as regular as clockwork. Over time, his operation cumulatively involved a significant amount of cocaine and a dozen or so participants, including Menting and Tushoski. At trial, Pszeniczka reported that after each drugbuying trip to Milwaukee, he distributed approximately three-fourths of his one ounce to three pre-designated customers. One of these customers was Tushoski, the owner of a local auto body shop.

Pszeniczka explained that between 1991 and 1996 he sold Tushoski uncut cocaine in amounts ranging from one-sixteenth of an ounce to one-half of an ounce per sale. Often, these transactions occurred at Tushoski's auto body shop. This was convenient for Tushoski in two important ways: first, it facilitated his purchases from Pszeniczka, because the latter would stop at the auto body shop on his way back from Milwaukee, use the shop's paint scale to weigh out the orders, and complete the sales; and second, the two had ready customers in Tushoski's employees, who placed their orders for Pszeniczka with Tushoski. Sometimes Pszeniczka would simply pre-package the cocaine according to Tushoski's specifications and deliver the cocaine to the shop.

After Pszeniczka made the sales of unadulterated cocaine to his three pre-determined customers, he mixed the remaining cocaine with inositol and sold it, often pre-packaged for individual sale. Between 1991 and 1994, one of his regular customers was Menting, who bought in amounts varying from a quarter of a gram to one-eighth of an ounce. Unlike Tushoski, Menting did not have a standing order with Pszeniczka. Instead, from time to time Menting would call Pszeniczka from a bar Menting frequented and place orders for himself and other patrons. Pszeniczka would then deliver the requested amounts to Menting at the bar, or Menting would go to Pszeniczka's home, where Pszeniczka would weigh and individually wrap the cocaine to Menting's specifications. Usually Menting paid at the time of purchase, but sometimes Pszeniczka fronted Menting drugs for payment at a later date. Menting rarely bought during the week, but he often placed between six and eight orders in the course of a weekend. Pszeniczka testified that he never directed Menting to sell to any particular individual nor did he ask Menting to collect money on his behalf; as far as Pszeniczka was concerned, once Menting purchased the drugs, Pszeniczka was uninterested in what Menting did with them. Further, Pszeniczka said that while he often asked other people to accompany him to Milwaukee or to store his drugs, he never made such requests of Menting, whom Pszeniczka did not consider particularly reliable.

These activities ultimately came to the attention of law enforcement officials, who arrested Pszeniczka, Menting, Tushoski, and a handful of others and charged them with conspiring to distribute cocaine in violation of 21 U.S.C. § 846. (Pszeniczka was also charged with a variety of other crimes that are not at issue in this case.) Most of those charged pleaded guilty and testified, including Pszeniczka. Menting and Tushoski, however, chose to go to trial and were convicted by a jury. At sentencing, the district court found that both Menting and Tushoski had perjured themselves while testifying and therefore assessed a two-point upward adjustment to their base offense levels for obstruction of justice under U.S.S.G. § 3C1.1. Menting's conduct earned him a sentence of 108 months in prison, while Tushoski received a sentence of 94 months. Menting appeals both his conviction and sentence, and Tushoski challenges only the conviction.

II

The common issue in this appeal concerns the adequacy of the district court's instructions on the distinction between a conspiracy and a mere buyer-seller arrangement. In addition, Tushoski objects to the court's instructions concerning multiple conspiracies, membership in a conspiracy, and his theory of defense. The district court did not overlook any of these subjects in its instructions. Our task therefore is to look at the charge as a whole and determine "whether the jury was misled in any way and whether it had a proper understanding of the issues and its duty to determine those issues." United States v. Boykins, 9 F.3d 1278, 1285 (7th Cir.1993). Instructions which are accurate statements of the law and which are supported by the record will not be disturbed on appeal. Id. This is not a case in which an entire theory of defense has arguably been omitted, and we therefore find cases such as United States v. Buchannan, 115 F.3d 445, 449 (7th Cir.1997), which address that situation, to be unhelpful.

At trial, both defendants conceded that they were guilty of repeatedly purchasing cocaine from Pszeniczka. In accordance with well-established law, they therefore argued that the relationship they had with Pszeniczka was simply that of buyer and seller for each discrete purchase, and that the sales were not made pursuant to an agreement to distribute. See, e.g., United States v. Lechuga, 994 F.2d 346, 349 (7th Cir.1993) (en banc); United States v. Mims, 92 F.3d 461, 463 (7th Cir.1996). Each one proposed a buyer-seller instruction to support this theory of defense, and, from a certain point of view, each was successful. The trial court agreed that they were entitled to a buyer-seller instruction, but it rejected the specific language they had suggested (which it deemed "confusing") in favor of the following instruction:

The existence of a mere buyer-seller relationship between a defendant and a conspirator, without more, is not sufficient to establish a defendant's guilt. The government must prove that a defendant knowingly and intentionally joined the charged conspiracy, knowing the conspiracy's aims and intending to achieve them. ¹

The defendants complain that this instruction did not give the jury sufficient guidance on how to distinguish a member of a conspiracy from a mere buyer from the conspiracy. We disagree. While on the brief side, the court's instruction did not misstate the law, nor did it mislead the jury. See, for example, United States v. Turner, 93 F.3d 276, 285 (7th Cir.1996) (approving a nearly identical instruction). Instead, it properly reminded the jury of the defendants' defense: that Menting and Tushoski were mere buyers and, as such, could not be guilty of participation in a conspiracy to distribute cocaine. Had the defendants so requested, the district court should have added, along the lines of the Lechuga decision, that in order to prove a conspiracy to distribute drugs "[w]hat is necessary and sufficient is proof of an agreement to commit a crime other than the crime that consists of the sale itself," 994 F.2d at 347. These defendants did not make such a request, however, and we cannot ask in hindsight that instructions always reach the ideal. Taken as a whole, they must simply convey to the jury a proper understanding of the legal issues they must decide. These instructions met that standard.

We take this occasion to comment again that the government could avoid many of these problems simply by charging the defendants with the substantive crime of distribution, 21 U.S.C. § 841(a)(1), instead of conspiracy. See, e.g., United States v. Thomas, 150 F.3d 743, 744-45 (7th Cir.1998). Here, the testimony of Pszeniczka and others gave the government an open-and-shut case that Menting and Tushoski purchased drugs for resale as well as for their own consumption. Given the approach of the Sentencing Guidelines, the switch in theory would not have affected the sentence the government was able to seek. See U.S.S.G. § 1B1.3(a)(1)(B); see also Thomas, 150 F.3d at 745. Charging distribution would also not have affected the prosecution's introduction of evidence at trial, because the invocation of the co-conspirator exception to the hearsay rule does not depend on an indictment for conspiracy. Thomas, 150 F.3d at 745; United States v. Duff, 76 F.3d 122, 124 (7th Cir.1996).

Tushoski individually also objects to the district court's rejection of his proposed jury instructions on "Multiple Conspiracies," "Membership in the Conspiracy," and "Theory of Defense." This argument does not warrant extensive discussion. Once again, the district court instructed the jury on each of these three topics. Because the court's instructions were both correct statements of the law and supported...