U.S. v. Oleson, 02-1432.

• Decision Date: 20 November 2002
• Docket Number: No. 02-1432.,02-1432.
• Citation: 310 F.3d 1085
• Parties: UNITED STATES of America, Appellee, v. Bruce OLESON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

310 F.3d 1085

UNITED STATES of America, Appellee, v. Bruce OLESON, Appellant.

No. 02-1432.

United States Court of Appeals, Eighth Circuit.

Submitted: October 8, 2002.

Filed: November 20, 2002.

Rehearing and Rehearing En Banc Denied: January 9, 2003.^*

COPYRIGHT MATERIAL OMITTED

John L. Lane, argued, Cedar Rapids, IA, for appellant.

Matthew J. Cole, Asst. U.S. Atty. (argued), Cedar Rapids, IA, for appellee.

Before HANSEN, Chief Judge, and HEANEY and MORRIS SHEPPARD ARNOLD, Circuit Judges.

HEANEY, Circuit Judge.

Bruce Oleson was convicted of conspiracy to distribute methamphetamine and marijuana, possession of methamphetamine and marijuana with intent to distribute, and possession of a firearm as an unlawful user of controlled substances.¹ He contests the sufficiency of the evidence on each conviction, and also contends the district court² erred in: denying his request for a hearing on his defective search warrant claim; admitting evidence that was not directly connected to him; and determining his sentencing offense level. We affirm.

BACKGROUND

On December 10, 1999, a search warrant was executed on Bruce Oleson's property. His property included a small dwelling, a number of outbuildings, and a tract of land. The search uncovered twelve guns, a scale, 2.33 grams of amphetamine, 38.15 grams of methamphetamine, and several pounds of marijuana.

On December 16, 1999, Oleson was charged in state court with a number of offenses related to the execution of the above-referenced search warrant. These charges were dismissed by the state on August 31, 2000. Oleson was then charged with federal violations on May 21, 2001. He went to trial on all counts.

At trial, Dixie Rodgers testified that she helped to arrange for Oleson to sell methamphetamine to Gil Gavronsky. According to Rodgers, Gavronsky, who had died by the time of trial, did not use methamphetamine himself, but wanted to distribute the drug in order to make his business more financially stable. Over the next several weeks, Gavronsky made six to eight trips to Oleson's residence, each time purchasing one to two ounces of methamphetamine for roughly $1,100 per ounce.

Tracy Slycord testified that Oleson was his steady source of drugs beginning in 1997. As Slycord's habit intensified, the amount of drugs he would buy increased. Eventually, he was buying one to four ounces of methamphetamine at a time, usually at a price of $1,000 to $1,200 per ounce. He testified that he got the drug to support his habit, but would also sell it. Stacey Carroll-White, an acquaintance of Rodney McAlister and Tracy Slycord, testified that McAlister sold marijuana and methamphetamine, and that he would get his drugs from Oleson. She further stated that she would regularly see McAlister in possession of four ounces of methamphetamine.

Part of the government's physical evidence at trial consisted of drugs that were seized from McAlister and Slycord. There was no evidence that any of these drugs were bought from Oleson, and Slycord affirmed at trial that the drugs were purchased from a different dealer.

DISCUSSION

I. SUFFICIENCY OF THE EVIDENCE

Oleson claims that the evidence was insufficient to convict him of conspiracy, possession with intent to distribute methamphetamine and marijuana, and possession of a firearm while an unlawful user of controlled substances. In reviewing the sufficiency of the evidence,

we view the evidence in a light most favorable to the verdict, giving it the benefit of all reasonable inferences. Reversal is required only where no reasonable jury could have found a defendant guilty beyond a reasonable doubt. "[T]he standard to be applied to determine the sufficiency of the evidence is a strict one, and the finding of guilt should not be overturned lightly."

United States v. Maynie, 257 F.3d 908, 916 (8th Cir.2001) (citations omitted).

To support a conspiracy conviction, the government must show that: a conspiracy existed for an illegal purpose; the defendant knew of the conspiracy; and the defendant knowingly joined in it. Id. While "[e]ither direct or circumstantial evidence can provide the basis for a conviction," United States v. Jiminez-Perez, 238 F.3d 970, 973 (8th Cir.2001), evidence in a conspiracy case will often be circumstantial due to an illegal conspiracy's "necessary aspect of secrecy," United States v. Robinson, 217 F.3d 560, 564 (8th Cir.2000) (quoting United States v. Gooden, 892 F.2d 725, 729 (8th Cir.1989)); see also United States v. Hoelscher, 914 F.2d 1527, 1533 (8th Cir. 1990) ("The agreement may be established by circumstantial evidence, as conspiracies seldom lend themselves to proof by direct evidence." (quoting United States v. Kaminski, 692 F.2d 505, 513 (8th Cir.1982))).

Oleson suggests that the government did no more than establish a buyer/seller arrangement between himself and his customers. The evidence simply does not support such a conclusion. The government presented ample testimony that Oleson was selling methamphetamine to McAlister, Slycord, and Gavronsky. He would sell at roughly the same rate, between $1000 and $1200 per ounce, and usually sold at least an ounce at a time, and often up to four ounces at once. In one month, Gavronsky alone completed six to eight purchases of methamphetamine, each time obtaining one or two ounces of methamphetamine for resale. Testimony also established that Slycord's standard purchase from Oleson was an ounce of marijuana and four ounces of methamphetamine. Considering the amount of contraband in these transactions in combination with the testimony of frequent standardized sales, we conclude there is sufficient evidence to support an inference that Oleson was part of the conspiracy to distribute narcotics. See United States v. Trotter, 889 F.2d 153, 156 (8th Cir.1989) (holding even small amount of drugs may support inference of dealing when combined with other evidence consistent with distribution).

To convict Oleson of possession of methamphetamine and marijuana with intent to distribute, the government must show that Oleson possessed both drugs with the intent to distribute them. United States v. Johnson, 18 F.3d 641, 647 (8th Cir.1994). Some factors that may lead to a conclusion that the drugs were meant for distribution include the quantity of drugs, packaging material, paraphernalia, and the presence of guns. United States v. Lopez, 42 F.3d 463, 467 (8th Cir.1994).

We have previously held that intent to distribute may also be inferred "solely from the possession of large quantities of narcotics." United States v. Ojeda, 23 F.3d 1473, 1476 (8th Cir.1994) (quoting United States v. Schubel, 912 F.2d 952, 956 (8th Cir.1990)). The search of Oleson's property uncovered several pounds of marijuana in a locked storage compartment.³ Even accepting Oleson's argument that much of the contraband was unmarketable due to water damage, the remaining dry marijuana totaled well over twenty pounds, with some being highly refined. The amount alone here supports the conviction for possession with intent to distribute marijuana.

As for the methamphetamine, the police recovered over an ounce of the drug during the search of Oleson's property. This same search produced twelve firearms and a scale. Moreover, the government presented an overwhelming amount of testimony that Oleson was in the business of selling methamphetamine. Taken in the light most favorable to the jury verdict, this evidence is sufficient to sustain the conviction for possession with intent to distribute methamphetamine.

With regard to his conviction for being a drug user in possession of a firearm, Oleson again asks us to overturn the jury verdict. In order to sustain a conviction, there must be evidence that Oleson was an unlawful user of or addicted to controlled substances during the same period of time that he possessed firearms. 18 U.S.C. § 922(g)(3); United States v. McIntosh, 23 F.3d 1454, 1458 (8th Cir.1994).

The evidence of firearm possession here is strong; the police found twelve guns on Oleson's property during execution of their search warrant. Although there was no direct evidence that Oleson was using drugs at the exact moment of the search, the government did show that a user quantity of amphetamine was laid out on Oleson's table, that he lived in the house alone, and that he often used drugs with his customers. These factors taken together support the jury's conclusion that Oleson was a drug user during the same period he possessed the guns.

II. DENIAL OF OLESON'S MOTION FOR A SUPPRESSION HEARING

Oleson next contends the district court erred in denying his motion for a hearing on whether the warrant issued in his case was defective. In order to receive a hearing on a defective warrant issue, the defendant must make some preliminary showing that the warrant application contained false statements or omissions that were material to the finding of probable cause. Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (19...