U.S. v. Milam

• Decision Date: 11 July 2007
• Docket Number: No. 06-4076.,06-4076.
• Citation: 494 F.3d 640
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dana MILAM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

494 F.3d 640

UNITED STATES of America, Plaintiff-Appellee, v. Dana MILAM, Defendant-Appellant.

No. 06-4076.

United States Court of Appeals, Eighth Circuit.

Submitted: June 12, 2007.

Filed: July 11, 2007.

Counsel who represented the appellant was Nichole A. Carper of Sioux Falls, South Dakota.

Counsel who represented the appellee was John E. Haak, Assistant U.S. Attorney, of Sioux Falls, South Dakota. Also appearing on the brief was Marty J. Jackley.

Before MURPHY, BEAM, and SHEPHERD, Circuit Judges.

MURPHY, Circuit Judge.

A jury found Dana Milam guilty of aiding and abetting the possession with intent to distribute of 50 grams or more of methamphetamine. She appeals, arguing that there was insufficient evidence to support the verdict, that the district court¹ abused its discretion in allowing the jury to recess at the end of the first day of deliberations without asking them whether they could reach a verdict, and that her trial counsel was ineffective. We affirm.

Dana Milam lived in Los Angeles and according to trial testimony she became a supplier of methamphetamine to Joe Deno, then a resident of South Dakota. Deno, who had lived in Los Angeles for 34 years before going to South Dakota in 1995, took a trip to California in May 2003 to attend his nephew's wedding. Deno, a methamphetamine addict, had previously heard of Milam by her nickname of "Tiger." While in California, Deno talked to some old friends who were also familiar with Tiger and who gave him directions to her house. Deno testified at trial that he wanted to talk with Tiger about buying drugs from her.

When Deno arrived at Milam's residence, he saw Matthew Lang outside. Deno asked Lang, whom he had met in the past, whether Milam could "hook him up." Lang said he didn't know, Deno would have to speak with her himself. Lang then took Deno up to the door and knocked, but there was no answer. Deno asked Lang to let Milam know he would get in touch with her later. Later that night Deno was able to learn Milam's phone number from a friend. He called Milam and then returned to her house where she sold him an eighth of an ounce of methamphetamine. When he used the methamphetamine, he realized it was of a higher quality than what was available to him in South Dakota. He purchased another half ounce of methamphetamine from Milam before returning home.

After Deno's return to South Dakota, he used some of the methamphetamine and sold the rest. He called Milam to purchase more drugs. They arranged for Deno to send cash to Milam's address in a package addressed to Matthew Lang. Rosalio Gonzalez, a postal worker in Los Angeles, testified at trial that he delivered two or three packages to that address during the summer of 2003 and that Milam signed for two of them. According to Deno, Milam mailed the packages of methamphetamine to the post office box of his friend Mark Lohnes. His initial order of methamphetamine was for half an ounce, but the shipments gradually increased to three ounces. Deno testified that during the life of the drug operation, he and Milam arranged for six or seven shipments of methamphetamine. Milam and Deno made arrangements by telephone, and the telephone records introduced at trial showed over 60 phone calls between them. Express mail records showed six shipments made to Lohnes from California.

The scheme continued until August 2003. On August 20, an agent of the United States Postal Service intercepted a package of methamphetamine at the post office in Brandon, South Dakota. The package contained 84.1 grams of 99% pure methamphetamine, it was addressed to Mark Lohnes, and the sender was identified as Matt Lang. Lohnes and Deno were later arrested, and they both agreed to cooperate with federal law enforcement officers. Deno explained the drug operation to them, including the source of the drugs. He told them that two phone numbers saved in his cell phone's address book, one listed as "Matt" and the other listed as "Tiger," belonged to his drug dealers. On Deno's cell phone officers found two voicemail messages left by an unidentified female and two left by a male who identified himself as "Matt." One of the messages left by the female stated that "the package is sent," informed Deno that she was not able to locate the package of money he had mailed, and asked Deno to track the package. Gary Harvison, an officer with the Drug Enforcement Agency, testified at trial that the phone number associated with the voicemail messages was the same number which had been saved as "Matt" on Deno's cell phone.

An indictment was issued by the grand jury on August 17, 2005. Count one alleged that Dana Milam had conspired with Matthew Lang and others to possess with the intent to distribute 50 grams or more of methamphetamine. Count two alleged that Milam aided and abetted the possession with intent to distribute of 50 grams or more of methamphetamine. Milam was arrested in December 2005.

Milam's trial took place on August 22, 2006. The jury heard closing arguments and received instructions after 4:00 pm and began its deliberations at approximately 5:15 pm. At 8:10 pm the jury submitted a note to the district court stating that it would like "to adjourn for the evening and resume deliberations tomorrow morning." The court granted the jury's request. Milam moved for a mistrial, arguing that it was prejudicial to allow the jury to discontinue its deliberations, and the motion was denied. The next morning the jury reconvened at 9:30. It requested a trial transcript at 10:00 am, but because a transcript could not be obtained in a timely fashion the district court told the jury it would have to rely on its recollection of the evidence. At noon the jury submitted another question to the district court, asking how it should proceed if it had reached a unanimous verdict on the aiding and abetting count but could not reach one on the conspiracy count. The district court responded that it should return with its verdict on the aiding and abetting count. The jury returned a verdict of guilty on that count, and the court declared a mistrial on the conspiracy count. On November 28, 2006, the district court...