U.S. v. Noe

• Decision Date: 09 June 2005
• Docket Number: No. 03-3879.,No. 03-38378.,No. 03-4048.,No. 03-3880.,03-38378.,03-3879.,03-3880.,03-4048.
• Citation: 411 F.3d 878
• Parties: UNITED STATES of America, Appellee, v. Peter George NOE, Appellant. United States of America, Appellee, v. Timothy James Schultz, Appellant. United States of America, Appellee, v. Amy Marie Placek, Appellant. United States of America, Appellee, v. Terry Lynn Bauman, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

411 F.3d 878

UNITED STATES of America, Appellee, v. Peter George NOE, Appellant.

United States of America, Appellee, v. Timothy James Schultz, Appellant.

United States of America, Appellee, v. Amy Marie Placek, Appellant.

United States of America, Appellee, v. Terry Lynn Bauman, Appellant.

No. 03-38378.

No. 03-3879.

No. 03-3880.

No. 03-4048.

United States Court of Appeals, Eighth Circuit.

Submitted: November 15, 2004.

Filed: June 9, 2005.

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Jenny Chaplinski, argued, Minneapolis, Minnesota, for appellant Noe.

Douglas B. Altman, argued, Minneapolis, Minnesota (Deborah Ellis, on the brief), for appellants Schultz and Placek.

Paul Applebaum, argued, St. Paul, Minnesota, for appellant Bauman.

Jeff Paulsen, Assistant U.S. Attorney, argued, Minneapolis, Minnesota (Thomas B. Heffelfinger, on the brief), for appellee.

Before WOLLMAN, HEANEY, and FAGG, Circuit Judges.

WOLLMAN, Circuit Judge.

A jury found Peter Noe guilty of conspiring to distribute methamphetamine in violation of 21 U.S.C. §§ 841(b)(1)(A), 846, and 851, and conspiring to distribute marijuana in violation of 21 U.S.C. §§ 841(b)(1)(B), 846, and 851. Noe was tried jointly with Timothy Schultz, who was found by the jury to be guilty of conspiring to distribute methamphetamine in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846, and possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(b)(1)(B). The district court¹ sentenced Noe and Schultz to 480 months' imprisonment. Amy Placek and Terry Bauman, members of the same conspiracy, pleaded guilty and received sentences of 57 and 100 months, respectively. All four defendants appeal, asserting a variety of grounds for reversal. Noe and Schultz seek new trials and in addition raise several sentencing claims. Placek and Bauman seek resentencing. We affirm.

I. Background

Noe and Schultz headed a methamphetamine conspiracy in Austin, Minnesota, from 2000 to 2002. Noe dealt marijuana on the side. Placek and Bauman participated in the conspiracy, and a number of other individuals served as sub-dealers. Others transported, mailed, received, and otherwise facilitated the flow of drugs, which emanated from Californian sources. One such individual was Jessica Taft, who began receiving packages of methamphetamine from Schultz before her eighteenth birthday. The group specialized in a powerful form of methamphetamine known as glass.

In 1999, a police raid on a house inhabited by Noe and Schultz yielded several loaded handguns, approximately 32 pounds of marijuana, and approximately $28,700 in cash. Noe was in and out of jail for various offenses until August of 2001. In April 2002, Police raided a hotel room occupied by Noe, discovering more drugs and cash. During his re-incarceration, despite posted notice that phone calls were subject to monitoring, Noe made references during phone conversations to drug orders, particular firearms, and even his confidence that he could best the police and the federal government. In speaking with his grandmother from the jail phone, Noe noted, "It's all a big * ss game with the cops because they f*cked with me . . . they drew the line in the sand." His grandmother replied, "Let me tell you about that line in the sand, Peter. They've got . . . a lot of stuff on their side and don't get yourself blown away." Noe responded, "Yeah well I've got guns too" and went on voicing his confidence: "I'm above the law. . . Grandma, the federal government got involved and they can't even catch me."

The raids and ongoing investigations necessitated careful storage of the drugs, which led Noe and Schultz to rely on Placek and Bauman. Bauman, for example, kept a safe in his basement where he stored methamphetamine at Schultz's behest. At times, however, managing the underlings of the conspiracy proved difficult. On one occasion, a sub-dealer named Keith Price took three ounces of Schultz's methamphetamine and failed to pay the $10,000 that Schultz requested for it. Placek lured Price to her house, where Schultz ambushed him, beat him, broke two of his teeth, and removed another tooth with pliers. At the end of this ill-fated encounter, Schultz told Price that he owed him only $5,000.

Bobby Sea, Schultz's counsel, cross-examined Price, who had testified to the pliers incident on direct examination. Sea began by establishing that, prior to meeting Schultz, Price used marijuana, had driven and crashed a car under the influence of alcohol, and had vandalized police cars. Sea then went on to cross-examine Price regarding the substantive matters about which Price had testified on direct examination. On redirect examination, the prosecutor referred to Sea's question about vandalizing police cars and inquired whether somebody had asked Price to do this. Price replied that Noe had asked him to do it. The prosecutor continued: "And what did he want you to do to [the police cars]?" Price's response: "He said he'd give us a hundred dollars if we wrote I.E. Wood on each cop car." When asked the meaning of "I.E. Wood," Price answered, "In the Empire of Wood or [a] white supremacist gang." The prosecutor then asked who belonged to that gang and Price replied, "Pete [Noe] and Tim [Schultz], as far as I know." The court later instructed the jury to disregard the testimony about I.E. Wood.

On appeal, Noe contends that the district court erred by admitting evidence that he was a member of a white supremacist gang and by denying his motion to sever his trial from that of Schultz. Schultz joins in Noe's first contention and further contends that the district court erred by admitting evidence of his assault on Price. Schultz also asserts that the district court erred by enhancing his sentence for use of a minor, possession of a firearm, and for his role as an organizer or leader. In addition, Noe and Schultz filed motions to remand their cases for resentencing in light of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

Placek pleaded guilty pursuant to a plea agreement that required her to testify fully and truthfully against her co-defendants. Subsequent to making this agreement, however, Placek telephoned Noe and reassured him that despite the plea agreement she was "trying not to do anything that's gonna f*ck with everybody's life," and that she could "discredit" Eric Borg, one of the government's witnesses. She also told Noe that the government "probably won't want me to [testify] because I changed my story every time I talk to `em." At a meeting with the government one week before Schultz's and Noe's trial, Placek changed her story in a way consistent with her promise to Noe. The prosecutor decided not to use Placek as a witness at trial and, citing her telephone conversation with Noe and her evasiveness at the meeting, decided not to make a downward departure motion on her behalf at sentencing. The district court found that Placek's attempts at the evidentiary hearing to explain away her exchange with Noe were "flat and blatant lies." On appeal, Placek claims that the government violated its duty under Rule 16 of the Federal Rules of Criminal Procedure to disclose the evidence concerning her statements that it used as a basis for refusing to file a § 5K1.1 downward departure motion at sentencing. She claims that this lack of disclosure resulted in the denial of her Sixth Amendment right to counsel and that the government acted in bad faith when it declined to file the downward departure motion.

After pleading guilty to methamphetamine trafficking charges, Bauman testified against Noe and Schultz at trial. The district court granted the government's § 5K1.1 downward departure motion and sentenced Bauman to 100 months' imprisonment, a term substantially lower than the applicable Guidelines range of 188-235 months. On appeal, Bauman claims that the district court abused its discretion by declining to sentence him to less than 100 months' imprisonment. We dispose of his claim here: Bauman did in fact receive a substantial downward departure in his sentence and "[i]n this circuit, the extent of a district court's downward departure is not reviewable." United States v. McCarthy, 97 F.3d 1562, 1577 (8th Cir.1996).

II. Gang-Related Testimony

Noe and Schultz argue that it was reversible error for the court to admit evidence of their membership in a white supremacist gang. Because defense counsel did not object to the admission of the evidence at trial, we review for plain error. United States v. Whitetail, 956 F.2d 857, 861 (8th Cir.1992).

As described above, it was Noe's counsel, Sea, who first asked Price about vandalizing police cars. The government then delved into the topic on redirect examination, causing Price to disclose that Noe had asked him to vandalize the police cars by spraypainting the name of a gang on them. Sea objected to the relevance of the prosecutor's questions only when the government began to inquire more broadly into vandalism in the Austin area, whereupon the prosecutor withdrew the question. The evidence of Noe and Schultz's membership in the gang, however, had already been admitted without objection on relevancy grounds.

When Price said that Noe and Schultz belonged to the gang, Albert Garcia, counsel to Noe, objected only on the ground that the testimony was speculative. The court sustained the objection, instructing the government to lay some foundation. The prosecutor then asked Price how he knew of their membership in the gang, and Price replied that Noe and Schultz had the name of the gang tattooed on their bodies.

Attorney Garcia returned to the subject on re-cross examination, attempting to show that Noe was not sincere in his request that Price spraypaint the name of the gang on the police cars. Soon thereafter, the court addressed the jury, instructing it in regard to the "testimony concerning an organization or something of that...