U.S. v. Mickelson

• Decision Date: 11 August 2004
• Docket Number: No. 03-3531.,03-3531.
• Parties: UNITED STATES of America, Appellee, v. David Joseph MICKELSON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

378 F.3d 810

UNITED STATES of America, Appellee, v. David Joseph MICKELSON, Appellant.

No. 03-3531.

United States Court of Appeals, Eighth Circuit.

Submitted: June 16, 2004.

Filed: August 11, 2004.

Appeal from the United States District Court for the Northern District of Iowa, Linda R. Reade, J.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Rockne Cole, argued, Iowa City, IA, for appellant.

Daniel C. Tvedt, argued, Asst. U.S. Attorney, Cedar Rapids, IA (Kandice A. Wilcox, Asst. U.S. Attorney, Cedar Rapids, IA on the brief), for appellee.

Before SMITH, BEAM, and COLLOTON, Circuit Judges.

SMITH, Circuit Judge.

David Mickelson appeals his conviction and sentence for conspiracy to manufacture methamphetamine and to distribute pseudoephedrine knowing or having reasonable cause to believe it would be used to make methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), (c)(2), and 846. A jury convicted Mickelson of these charges, and the district court¹ sentenced him to 121 months' imprisonment, five years supervised release, and a special $100 assessment. We affirm.

I. Background

Mickelson, as manager of a BIG Ten Mart convenience store in Waterloo, Iowa, gained access through a wholesale distributor to large quantities of pseudoephedrine pills that were sold at the store. Mickelson and co-defendant Paul Finn, a BIG Ten Mart employee, sold case quantities of pseudoephedrine to various people including Misty Cook, the father-daughter pair of Chuck and Mindy Hobart, and Mindy Hobart's boyfriend, Brad. Finn typically acted as middleman between Mickelson and the buyers in these transactions. Mickelson and Finn earned approximately $400 per case of pseudoephedrine. Finn received either money or methamphetamine in exchange for his involvement.

Evidence at trial indicated that Mickelson's coworkers and Finn's friends overheard conversations between the two men or observed activities concerning deliveries of pseudoephedrine. Coworker Matthew Chapman overheard Finn and Mickelson discuss that they could acquire cases of pseudoephedrine pills apart from the documented inventory for the store. Chapman also saw Mickelson place a box or case of pseudoephedrine pills, which had just been delivered to the store, into Mickelson's green Jeep Cherokee. Chapman saw another case of pills at Finn's residence. Jimmy Joachim, a friend of Finn's, was present on one occasion when Mickelson delivered a duffle bag containing 172 bottles of pills to Finn. Finn then met with Chuck Hobart. In January 2001, Finn's friend Kevin Boike saw Finn deliver boxes of pseudoephedrine pills to Mindy Hobart on two occasions. He also observed Mickelson deliver a box of pills to Mindy Hobart outside of Finn's residence.

Finn also spoke to various people regarding his and Mickelson's enterprise. Kevin Boike, with whom Finn used methamphetamine, testified that Finn told him that Mickelson would store the pills at Finn's apartment, and Finn would receive $300 per transaction plus additional methamphetamine from Mindy Hobart. Later, Finn told Boike that Mickelson had cut Finn out of the middleman position and was dealing with Mindy Hobart directly. Finn told Boike that fake invoices were created for the pills. Finn said that Mickelson bought the pills for about $900 and resold the pills for between $1,400 to $1,700 per case. Finn estimated that each case contained about 32,000 pills. BIG Ten Mart employee Cheryl Russell testified that Finn told her that Mickelson sold boxes of pseudoephedrine to Chuck Hobart. Cleo Wilder, who used drugs with Finn, testified that Finn would get a "cut" for pseudoephedrine pills sold by Mickelson. Finn told Joachim that Mickelson gave him pills to deliver to the Hobarts. Finn told him that Mickelson would order the pills and reroute the paperwork through other convenience stores.

During a six-month period in 2001, Finn told Misti Boike (coworker and sister to witness Kevin Boike) and her fiance, with whom Finn lived, that Mickelson gave him pills to deliver to Chuck Hobart, and he would then bring the money back to Mickelson. Another witness, Misty Cook, met both Finn and Mickelson when she worked at the BIG Ten Mart in 1999. Cook testified that she obtained pseudoephedrine pills from various people and provided them to Scott Reavis, who used them to make methamphetamine. Cook, who sometimes assisted Reavis and received methamphetamine in exchange for her involvement, testified that she approached Finn in the summer of 2000 seeking to buy larger quantities of pseudoephedrine pills. Cook testified that Finn told her to buy pills from Mickelson because Finn knew of another couple buying large quantities of pills from Mickelson and knew Cook would be able to as well. Cook knew that the other individuals buying pills were Mindy Hobart and her boyfriend. Thereafter, Cook purchased case quantities of pills from Mickelson on two occasions, once at a car wash when Reavis was present. Each case cost $1,400. Cook testified that each case contained twenty-four bottles, each containing sixty pills. She turned over all of the pills to Reavis for the purpose of making methamphetamine.

Reavis manufactured methamphetamine at a former welding shop in Waterloo, Iowa. At trial, he testified that he produced about two ounces of methamphetamine from 600 to 1,000 pseudoephedrine pills. Reavis said he produced one to two pounds of methamphetamine at the shop. Reavis identified several people who had assisted him in cooking or in gathering precursors to make methamphetamine. Reavis testified that Misty Cook was one of his suppliers, and that he once accompanied Cook to the BIG Ten Mart to arrange delivery of a case containing approximately 4,000 pills. The delivery of the case of pills occurred at a nearby car wash. Although Reavis was unable to identify the individual who had provided the pills, he stated that the man was driving a green Jeep Cherokee.

On March 22, 2001, authorities searched the welding shop. Authorities seized numerous items relating to the manufacture of methamphetamine, including equipment and containers used in the manufacturing process. Several kinds of precursors and containers for precursors were seized, including a number of empty pseudoephedrine bottles.

Mickelson and Finn were charged in the one-count indictment filed on May 21, 2002. At the time of his arrest, Mickelson admitted his activities to two different law enforcement officers. Mickelson told Trooper Mike McVey that he had sold cases of pseudoephedrine pills to Mindy and Chuck Hobart and Mindy's boyfriend. Mickelson stated that after they acquired the ammonia, they would purchase from $200 to $1,500 worth of pills at a time. He stated that $1,500 was equivalent to a case of pills, while $200 would purchase twenty bottles of pills. Mickelson stated that he sold five-to-seven full cases of pills to Mindy Hobart. Mickelson said he obtained the pills from a salesman named Steve Devine. Later that same day, Mickelson told Sergeant Reicherts that he paid Devine in cash with no paperwork exchanged. Mickelson admitted that he had sold the equivalent of approximately two cases of pills to Misty Cook. He said he knew that the pills were used to make methamphetamine and that his profit on the pills was about $400 per case. He said that the deliveries occurred at his apartment in Cedar Falls, at the BIG Ten Mart, or at College Square Mall in Cedar Falls. Mickelson also said that Joachim was present once when pills were delivered to Finn in a duffle bag.

Prior to trial, Mickelson moved to sever his and Finn's trials, claiming that Finn could provide exculpatory testimony on his behalf if given a separate trial. In his written motion, Mickelson stated:

Specifically, Paul Finn would testify that he and Mickelson did not conspire to manufacture methamphetamine in any amount, and Finn would further testify that Mickelson did not have any cause to believe that the distribution of pseudoephedrine to Finn would be used by Finn or any other person to manufacture methamphetamine.

At the motion hearing on January 2, 2003, counsel asserted that Finn would only be willing to testify in a separate trial that "there was no conspiracy or agreement to manufacture methamphetamine." He could not say that Finn would testify that Mickelson would not have known the purpose for which the cases of pseudoephedrine were intended. In response, the government argued that the proposed testimony, even if adequately established, was not exculpatory. The district court denied the motion to sever. Mickelson did not raise his severance issue again during trial.

A jury convicted Mickelson and Finn after a three-day trial. The jury specifically found, in connection with the methamphetamine manufacturing aspect of the offense, that Mickelson was responsible for more than 500 grams of a mixture or substance containing methamphetamine. Mickelson filed no post-trial motions and timely appealed.

II. Analysis

On appeal, Mickelson argues that the district court erred in denying his motion to sever, that his inability to cross-examine Finn violated his Sixth Amendment right of confrontation pursuant to Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and that the evidence is insufficient to support his conviction.

A. Motion to Sever

Mickelson first argues that the district court erred in denying his request to sever his trial from Finn's because Finn would have offered exculpatory evidence at Mickelson's trial. Mickelson argues that Finn's testimony would have been "powerful evidence" that he did not conspire with Finn or anyone else. He argues that 1) no other evidence supported the conspiracy charge because Reavis stated he never conspired with Mickelson to make methamphetamine; 2) Misty Cook only assumed Mickelson knew of her plans to make methamphetamine with Reavis; and 3) the Hobarts did not testify at trial.

On appeal,...