U.S. v. Mosby, 98-1587

• Decision Date: 03 June 1999
• Docket Number: No. 98-1587,98-1587
• Citation: 177 F.3d 1067
• Parties: , UNITED STATES of America, Appellee, v. Joseph Trent MOSBY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

177 F.3d 1067, UNITED STATES of America, Appellee, v. Joseph Trent MOSBY, Appellant.

No. 98-1587.

United Stated Court of Appeals, Eighth Circuit.

Submitted Jan. 12, 1999.

Filed June 3, 1999.

Ross C. Nigro, Jr., Kansas City, MO, argued, for Appellant.

Gregory K. Johnson, Asst. U.S. Atty., Kansas City, MO, argued, for Appellee.

Before: LOKEN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

A jury convicted Joseph Trent Mosby of conspiracy to manufacture and distribute methamphetamine and the trial court sentenced him to 262 months' imprisonment. Mr. Mosby appeals his conviction on the grounds that the judge was biased and should have recused himself, that the evidence was insufficient to support a conviction, and that much of the government's case was based on the testimony of "paid" witnesses; and he appeals his sentence on the grounds that the amount of drugs attributed to him was incorrectly calculated and that the trial court should have given him a more lenient sentence because the jury's verdict was ambiguous. We affirm the judgment of the trial court. ¹

I.

Mr. Mosby argues that the trial judge erred by failing to recuse himself sua sponte pursuant to 28 U.S.C. § 455(a). Mr. Mosby maintains that during a previous case he had made threats on the judge's life that were communicated to the judge through a motion filed with the court, and he therefore contends that the judge could not possibly have approached the trial in this case without bias.

Having reviewed the relevant motion, however, we find no mention of any threats made against the judge himself; the motion informs the judge only of threats that Mr. Mosby allegedly made against other people involved in that litigation. There is thus nothing in the record before us that indicates that the trial judge knew of any threats on his life, if any in fact existed, so Mr. Mosby's contention that the judge should have recused himself is without merit.

II.

Mr. Mosby next contends that the evidence was insufficient to support his conviction. When considering a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict, and reverse " 'only if we conclude that a reasonable fact-finder must have entertained a reasonable doubt about the government's proof' " of one of these elements. United States v. Bascope-Zurita, 68 F.3d 1057, 1060 (8th Cir.1995), cert. denied, 516 U.S. 1062, 116 S.Ct. 741, 133 L.Ed.2d 690 (1996), quoting United States v. Ivey, 915 F.2d 380, 383 (8th Cir.1990).

To convict a defendant of conspiracy, the government must prove beyond a reasonable doubt that there was a conspiracy with an illegal purpose, that the defendant was aware of that conspiracy, and that he or she knowingly became a part of it. See, e.g., United States v. Bass, 121 F.3d 1218, 1220 (8th Cir.1997). Mr. Mosby argues that there was insufficient evidence to prove that he knew of the conspiracy and knowingly became a part of it. Although he does not dispute the fact that he provided pills and iodine crystals to co-conspirators who then used these materials to "cook" methamphetamine, he contends that he thought the materials were being used for legal purposes only.

The evidence that there was a conspiracy to manufacture and distribute methamphetamine was overwhelming. "Once the government establishes the existence of a drug conspiracy, only slight evidence linking the defendant to the conspiracy is required to prove the defendant's involvement and support the conviction." United States v. Jenkins, 78 F.3d 1283, 1287 (8th Cir.1996). The evidence linking Mr. Mosby to the conspiracy with respect to manufacture and distribution easily meets this burden and, indeed, would support a finding that Mr. Mosby, beyond a reasonable doubt, was a member of the relevant conspiracy. See Brent E. Newton, The Antiquated 'Slight Evidence Rule' in Federal Conspiracy Cases, 1 Journal of Appellate Practice and Process 49, 53 (1999) (criticizing the rule of our circuit and stating that we have "taken the lead in applying the slight evidence rule in dozens of conspiracy cases decided in the last few years").

Several government witnesses testified that Mr. Mosby provided the precursor materials for methamphetamine, and knew exactly how these materials were being used. With respect to distribution, several witnesses testified that they received drugs directly from Mr. Mosby himself. Viewing this evidence in the light most favorable to the guilty verdict, it is clear that a reasonable fact-finder could have found Mr. Mosby guilty beyond a reasonable doubt.

III.

Mr. Mosby contends that the testimony of two co-conspirators who testified for the government should have been excluded because they were promised leniency by the government in exchange for their testimony--a violation, he argues, of 18 U.S.C. § 201(c)(2), which criminalizes the exchange of "anything of value" for "testimony under oath or affirmation given or to be given ... as a witness upon a trial." Because this argument was not raised at trial, we may reverse only if the trial court committed plain error in admitting the evidence in question. See Fed.R.Crim.P. 52(b); see also, e.g., United States v. Millard, 139 F.3d 1200, 1203 (8th Cir.1998), cert. denied, --- U.S. ----, 119 S.Ct. 376, 142 L.Ed.2d 311 (1998).

Of the numerous circuit courts that have considered the argument that such plea agreements violate § 201(c)(2), only one has found it persuasive, see United States v. Singleton, 144 F.3d 1343, 1345-51 (10th Cir.1998), vacated, 144 F.3d 1361 (10th Cir.1998) (en banc ), and even that result was undone en banc, see United States v. Singleton, 165 F.3d 1297, 1299-1302 (10th Cir.1999) (en banc), petition for cert. filed (Mar. 31, 1999). We have, moreover, already joined all of the other circuits that have addressed this issue by ruling that "the statute does not sweep so broadly as to prevent prosecutors from offering leniency to an individual in exchange for truthful testimony." United States v. Johnson, 169 F.3d 1092, 1098 (8th Cir.1999). We therefore hold that it was not plain error to allow the testimony of the two co-conspirators.

IV.

Mr. Mosby contends that it was unclear whether the jury convicted him of conspiracy to manufacture, conspiracy to distribute, or both, and argues that, where there is an ambiguous verdict, a defendant must be sentenced in the lowest range that the verdict's permissible interpretations will allow. It is true that, given an ambiguous verdict, a court should sentence the defendant based on the interpretation of the verdict that produces the lowest sentence, see, e.g., United States v. Baker, 16 F.3d 854, 857-58 (8th Cir....