U.S. v. Puma, 90-1420

• Decision Date: 22 July 1991
• Docket Number: No. 90-1420,90-1420
• Citation: 937 F.2d 151
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ronald Joseph PUMA, a/k/a Ronny Puma, Donnie K. Nichols, a/k/a Dead Weight and DW, and Ernest Raymond Dodd, a/k/a RD, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 151

937 F.2d 151

UNITED STATES of America, Plaintiff-Appellee, v. Ronald Joseph PUMA, a/k/a Ronny Puma, Donnie K. Nichols, a/k/a Dead Weight and DW, and Ernest Raymond Dodd, a/k/a RD, Defendants-Appellants.

No. 90-1420.

United States Court of Appeals, Fifth Circuit.

July 22, 1991.

Rehearing Denied Aug. 29, 1991.

George C. Thompson, Jr., Fort Worth, Tex. (Court-appointed), for Puma.

Richard A. Anderson, Dallas, Tex., Gene Storrs, Amarillo, Tex., for Nichols.

Donald S. Gandy, Fort Worth, Tex., for Dodd.

Delonia A. Watson, Asst. U.S. Atty., Dept. of Justice, U.S. Attys. Office, Dallas, Tex., Marvin Collins, Fort Worth, Tex., for U.S.

Appeal from the United States District Court for the Northern District of Texas.

Before REYNALDO G. GARZA, HIGGINBOTHAM, and DAVIS, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Ronald Puma, Donnie Nichols, and Ernest Dodd appeal their convictions following a jury trial for conspiracy to produce, transport, and sell amphetamines in violation of federal narcotics statutes. They urge insufficiency of evidence to support their convictions, incorrect application of the sentencing guidelines, defective indictment, and errors in the admission of evidence.

We reject all defendants' contentions except that we find that the trial court did not expressly find that Nichols could have reasonably foreseen that the conspiracy of which he was convicted would involve 390 pounds of amphetamine. We vacate Nichols' sentence and remand to the trial court for any additional findings and resentencing.

I.

Robert Payne was originally indicted with the appellants but testified pursuant to a plea agreement. Payne testified that Ernest Dodd sold amphetamine powder to him in 1985 for Payne's personal use, followed in 1985 and 1986 by larger quantities of amphetamine powder which Payne in turn sold for a profit. According to Payne, this relationship continued until February of 1988.

Payne testified that by 1988 Dodd was unable to meet his need so he decided to acquire a new source of amphetamine. In the meanwhile Payne learned to convert amphetamine oil to powdered amphetamine by observing the conversion process at Dodd's wrecker service in Fort Worth.

Payne testified that he met Ronald Puma in 1988. According to Payne, Puma had supplied Dodd with amphetamine oil, but Dodd had fallen into debt with Puma. Payne testified that he and Puma reached an agreement in 1988 under which Puma would sell amphetamine oil to Payne who would convert the oil into powder and sell it to others. Payne also sold chemicals necessary for amphetamine production to Puma. According to Payne, Puma and Payne discussed both these sales of amphetamine powder and Puma's own production process. For example, Payne testified that in December, 1988, he and Puma discussed replacing laboratory equipment destroyed in a chemical explosion. The relationship between Puma and Payne ended when agents from the Drug Enforcement Agency searched Payne's house in July of 1989.

The government tied Donnie Nichols to the conspiracy through his relationship with Oda Lee Ratheal, a steady customer of Payne's and an indicted co-conspirator who testified in this case pursuant to an agreement with the prosecution. Ratheal met Nichols in 1984. In March, 1986, Ratheal began to purchase amphetamine powder from Payne. Ratheal testified that he sold amphetamine powder to Nichols almost every time that Ratheal purchased it from Payne. According to Ratheal, Ratheal informed Nichols that Payne was Ratheal's supplier. Ratheal's wife, Dodie, testified that Nichols assisted her husband in weighing, cutting, and bagging amphetamine and that Nichols had informed her that he sold amphetamine to others. In Oda Lee Ratheal's opinion, Nichols could not use all the amphetamine that Nichols purchased from Ratheal.

In 1986, Oda Lee Ratheal was injured in an automobile accident. Ratheal testified that Nichols assisted his wife Dodie in purchasing and weighing amphetamines while Oda Lee Ratheal was hospitalized, accompanying Dodie Ratheal on her trips to a truck stop where they picked up their supply of amphetamine. After Ratheal's recovery, Nichols accompanied Ratheal when Ratheal travelled to Payne's home to purchase amphetamine. Ratheal also purchased amphetamine with Nichols' money.

On September 22, 1989, appellants, along with nineteen others, including Payne and the Ratheals, were charged in a 76-count indictment with the violation of federal drug statutes, money laundering offenses, and violations of the Travel Act. The indictment also charged that Puma had used profits from a continuing criminal enterprise to purchase certain property which in turn had been used to facilitate the continuing criminal enterprise.

Dodd was convicted for conspiracy to produce and distribute amphetamine in violation of 21 U.S.C. Secs. 841(a)(1) and 846 and given a twenty-year sentence. Nichols was similarly convicted and sentenced to serve 151 months. Puma was sentenced to 360 months upon his conviction for conspiracy to violate 21 U.S.C. Secs. 841(a)(1), 846, 848 and 853, and 18 U.S.C. Secs. 1952(a)(3), 1956(a)(1)(B)(i), and 2. He also forfeited the Diamond Oaks Motor Company and $5,030.00 which were found by a jury's special verdict to have been obtained through the profits of a continuing criminal enterprise, pursuant to 21 U.S.C. Sec. 853(a)(1)(3).

II.

Puma raises eight points of error. All are without merit.

A. Constitutionality of Sentencing Guideline 3E1.1; Sufficiency of Evidence; Defective Indictment

Puma first contends that Sentencing Guideline 3E1.1 violates his Sixth Amendment right to a jury trial. An identical contention was considered and rejected in United States v. White et al., 869 F.2d 822, 826 (5th Cir.), cert. denied, 490 U.S. 1112, 109 S.Ct. 3172, 104 L.Ed.2d 1033 (1989). Puma next argues that there was not sufficient evidence to support his convictions because certain witnesses were given an incentive to testify against him by plea agreements. Such plea agreements raise issues of credibility. Credibility was for the jury. United States v. Martin, 790 F.2d 1215, 1219 (5th Cir.), cert. denied, 479 U.S. 868, 107 S.Ct. 231, 93 L.Ed.2d 157 (1986).

Puma finally urges that his indictment was fatally defective in not alleging the quantities of amphetamine it charged him with possessing. This argument is made for the first time in this appeal. We therefore review only to ascertain whether the indictment stated the essential elements of the charged offenses. United States v. Wilson, 884 F.2d 174, 179 (5th Cir.1989); United States v. Campos-Asencio, 822 F.2d 506, 508 (5th Cir.1987). Quantity is not an element of any of the charged offenses. United States v. Medina, 887 F.2d 528, 532 (5th Cir.1989) (stating elements of violation of 18 U.S.C. Sec. 2); United States v. Hernandez-Palacios, 838 F.2d 1346, 1350 (5th Cir.1988) (stating elements of violation of 18 U.S.C. Sec. 1952); United States v. Morgan, 835 F.2d 79, 81 (5th Cir.1987) (stating elements of violation of 21 U.S.C. Sec. 841(b)(1)(A)); United States v. Sperling, 506 F.2d 1323, 1344 (2d Cir.1974) (stating elements of 21 U.S.C. Sec. 848), cert. denied sub nom. Goldstein v. United States, 420 U.S. 962, 95 S.Ct. 1351, 43 L.Ed.2d 439 (1975). The indictment, therefore, contained the essential elements of the offenses charged and is sufficient.

B. Puma's Objections to his Sentence

Puma raises five objections to his sentence. First, he urges that the trial court violated Fed.R.Crim.P. 32(c)(3)(D). Second, Puma claims that it was based on inaccurate information. Third, Puma argues that the disparity between his sentence and the sentence of his co-conspirators, especially Payne's sentence violates the "spirit" of the sentencing guidelines. Fourth, Puma argues that the trial court ordered forfeiture in violation of Fed.R.Crim. 7(c), (e) and 31(e). Finally, Puma alleges that there is insufficient evidence to support forfeiture of certain automobiles.

1. Fed.R.Crim.P. Rule 32(c)(3)(D)

Fed.R.Crim.P. 32(c)(3)(D) provides that:

If the comments of the defendant and the defendant's counsel or testimony or other information introduced by them allege any factual inaccuracy in the presentence report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence report thereafter made available to the Bureau of Prisons.

Puma contends that the trial court's failure to make written findings rejecting Puma's challenges to the pre-sentence report, is reversible error. This contention is meritless. The trial court's express rejection of Puma's challenges to the pre-sentence report appears in the record. This oral finding satisfies 32(c)(3)(D)'s requirement that the trial court "make a finding as to the allegation" raised by Puma. United States v. Burch, 873 F.2d 765, 768 (5th Cir.1989); United States v. Lawal, 810 F.2d 491, 493 n. 2 (5th Cir.1987). Puma's only objection must be that this ruling was not attached in writing to the pre-sentence report that was sent to the Bureau of Prisons. If so, the record does not show any prejudice for any such omission.

2. Accuracy of Information on which Sentence was Based

Puma's second contention, that his sentence was based on inaccurate information, is similarly meritless. The trial court expressly considered and rejected Puma's objections to the pre-sentence report. Puma alleges only one specific example of reliance on erroneous facts. He argues that the trial court should not have relied on the pre-sentence report because the report refers to acts committed before the charged conduct. A sentencing court, however, may consider for sentencing purposes...