U.S. v. Ramsdale, 93-2392

• Decision Date: 17 August 1995
• Docket Number: No. 93-2392,93-2392
• Citation: 61 F.3d 825
• Parties: 42 Fed. R. Evid. Serv. 1109 UNITED STATES of America, Plaintiff-Appellee, v. John Dale RAMSDALE, Charles Christoferson, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 825

61 F.3d 825

42 Fed. R. Evid. Serv. 1109

UNITED STATES of America, Plaintiff-Appellee, v. John Dale RAMSDALE, Charles Christoferson, Defendants-Appellants.

No. 93-2392.

United States Court of Appeals Eleventh Circuit.

Aug. 17, 1995.

Marcia G. Shein, Richard D. Biggs, Barbara A. Leitner, Miller & Shein, Atlanta, GA, for John Dale Ramsdale.

Pamela A. Moine, Asst. U.S. Atty., Pensacola, FL, for appellee.

Leo A. Thomas, Pensacola, FL, for Charles Christoferson.

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

Before KRAVITCH and BIRCH, Circuit Judges, and GOODWIN ^*, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

A jury convicted Appellants John Dale Ramsdale and Charles Christoferson of conspiracy to manufacture methamphetamine, in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(A)(viii), and 846. The district court sentenced each Appellant to 360 months imprisonment. Ramsdale and Christoferson both appeal their convictions and sentences. We AFFIRM Appellants' convictions, but because the district court failed to make any findings as to the type of methamphetamine involved in the conspiracy, we VACATE the sentences imposed and REMAND for resentencing.

I. Facts and Background

This case arises out of a scheme to transport phenylacetic acid ("PA"), a listed precursor chemical ¹ used in the manufacture of methamphetamine, from Florida to Oregon. Between August 1991 and February 1992, Matt Reed sold approximately $40,000 worth of methamphetamine in Newport, Oregon, for Ramsdale and Christoferson. When Reed mentioned to Christoferson that he was considering visiting a friend in Florida, Christoferson offered to give Reed a better price on methamphetamine in exchange for obtaining PA in Florida. He also instructed Reed on how to repackage the PA for shipment to Oregon. Reed contacted Mark Beachy, a Florida resident, and asked for his assistance in purchasing PA.

Ramsdale gave Reed $5,000 to cover the Florida trip expenses and the purchase of the PA. Reed stayed at Beachy's residence in Florida and, in return for Beachy's assistance, Reed paid some of Beachy's household bills. Reed put a message on an answering machine at Beachy's residence with a bogus perfume company's name, ² so as to appear that he had a legitimate use for the PA. ³ While in Florida, Reed remained in touch with Ramsdale and Christoferson through calls to their homes and cellular phones. In turn, Ramsdale called Beachy's residence to check on Reed.

Claiming to be Beachy, Reed contacted Basic Chemicals, Inc. regarding the purchase of PA. ⁴ Rick Spooner, of Basic Chemicals, believed it might be illegal to sell the PA without notifying the proper authorities; accordingly, he contacted the Drug Enforcement Agency ("DEA"). The DEA set up a surveillance operation in connection with the PA purchase. Spooner subsequently tape-recorded a conversation with Reed (identifying himself as Beachy) during which Spooner provided Reed with price information on the PA, ⁵ and told Reed that a down payment would be required. On or about December 12, 1991, Beachy went to Basic Chemicals and placed a $1,700 cash down-payment for the PA; this transaction was videotaped by the DEA. A few weeks later, while Reed waited outside in a truck, Beachy picked up the PA and paid another $981 in cash. Although the order was for 21 kilograms of PA, due to factory production problems, only 15.5 kilograms were delivered to Beachy.

After picking up the PA, Reed and Beachy drove to a parking lot where Reed transferred the PA to plastic freezer bags, as per Christoferson's instructions. ⁶ Reed then placed the PA in a black duffel bag which he transported back to Oregon by bus. DEA agents followed Beachy and stopped him after they observed him disposing of the empty PA containers. Following his arrest, Beachy admitted assisting Reed in the PA purchase and agreed to cooperate with law enforcement officials.

Back in Oregon, Reed delivered the duffel bag containing the PA to Christoferson. Two to three weeks later, Reed resumed selling methamphetamine, which Christoferson provided at a discounted rate. On January 15, 1992, Beachy and Reed spoke on the phone; Beachy, then cooperating with the authorities, inquired as to the status of the methamphetamine production and asked about getting a sample. Reed told Beachy that "they" intended to continue using Beachy to purchase PA and that Beachy would receive money for his assistance. Reed stated that once the back-ordered PA from the first shipment was received, they would try to order 15 kilograms of PA every three weeks. Ramsdale also spoke with Beachy, promising to assist him in getting Reed to pay outstanding phone bills from Reed's visit.

In February 1992, Reed was arrested at a motel in Newport, Oregon, with methamphetamine in his possession. Ramsdale subsequently provided $5,000 for Reed's attorneys' fees, as per an earlier agreement. On May 13, 1992, an Oregon state narcotics officer stopped a vehicle in which Ramsdale was a passenger. The officer, realizing that there was an outstanding arrest warrant for Ramsdale, arrested him. Ramsdale had 12.8 grams of methamphetamine and $1,074 in cash in his possession.

Reed and Beachy both were indicted for offenses arising out of their possession of the PA; ⁷ they pleaded guilty and cooperated with authorities in the present case.

II. Sufficiency of the Evidence

On appeal, Christoferson argues that the district court erred in failing to grant his motion for a judgment of acquittal. ⁸ Ramsdale also contends that there was insufficient evidence to support his conviction. ⁹ We review sufficiency of the evidence de novo, viewing the evidence in the light most favorable to the government. See United States v. Muscatell, 42 F.3d 627, 632 (11th Cir.1995), cert. denied, --- U.S. ----, 115 S.Ct. 2617, 132 L.Ed.2d 859 (1995). All reasonable inferences and credibility choices are made in favor of the jury verdict. United States v. Young, 39 F.3d 1561, 1565 (11th Cir.1994). "We ask whether a reasonable trier of fact, when choosing among reasonable constructions of the evidence, could have found the defendant guilty beyond a reasonable doubt." United States v. Cannon, 41 F.3d 1462, 1466 (11th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 86, --- L.Ed.2d ---- (1995). The evidence need not exclude every reasonable hypothesis of innocence. United States v. Perez-Tosta, 36 F.3d 1552, 1556 (11th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 2584, 132 L.Ed.2d 833 (1995).

To sustain Appellants' convictions for conspiracy, the evidence must show: (1) that a conspiracy existed, (2) that Ramsdale and Christoferson knew of it, and (3) that they knowingly and voluntarily joined it. Id. at 1557. Participation in a criminal conspiracy need not be proved by direct evidence; rather, a common purpose and plan may be inferred from a "development and collocation of circumstances." Id. (quoting Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469-70, 86 L.Ed. 680 (1942) (quoting U.S. v. Manton, 107 F.2d 834, 839 (2d Cir.1939))).

The evidence in this case supports the jury's verdict. ¹⁰ Ramsdale and Christoferson provided Reed with methamphetamine to sell in Oregon. In exchange for acquiring the PA, Christoferson gave Reed better prices on methamphetamine. Christoferson explained how to repackage the PA for the trip back to Oregon and accepted the PA from Reed upon his return. Ramsdale provided money for the purchase of the PA and Reed's airline ticket for the trip down to Florida. Telephone records and testimony indicated that Appellants monitored Reed's progress during his time in Florida. Furthermore, after Reed was arrested, Ramsdale provided him with funds for an attorney.

The jury also heard testimony regarding two vehicle stops. On September 21, 1991, when Christoferson's vehicle was stopped for a defective rear license, he had in his possession: 3.05 grams of methamphetamine, sectioned off into squares; $7801 in cash, most of it in twenties and fifties; a shotgun with a laser sight; and a .9 millimeter pistol. Ramsdale possessed 12.8 grams of methamphetamine and over $1074 in cash when a vehicle in which he was travelling was stopped and he was arrested.

Based upon the foregoing evidence, we conclude that "a reasonable trier of fact, when choosing among reasonable constructions of the evidence, could have found the defendant[s] guilty beyond a reasonable doubt." Cannon, 41 F.3d at 1466.

III. Vehicle Stop Evidence

Christoferson argues that the district court erred by allowing Officer Chantal Marie Thomas to testify regarding the stop of Christoferson's vehicle on September 21, 1991. We review the trial court's admission of evidence for abuse of discretion. Perez-Tosta, 36 F.3d at 1560.

Fed.R.Evid. 404(b) provides that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." Nevertheless, as this court previously has explained:

Evidence of criminal activity other than the charged offense is not extrinsic under Rule 404(b) if it is (1) an uncharged offense which arose out of the same transaction or series of transactions as the charged offense, (2) necessary to complete the story of the crime, or (3) inextricably intertwined with the evidence regarding the charged offense.

United States v. Veltmann, 6 F.3d 1483, 1498 (11th Cir.1993); see also United States v. Weeks, 716 F.2d 830, 832 (11th Cir.1983) (per curiam).

Christoferson's vehicle stop occurred during the time of the conspiracy as charged in the indictment. Christoferson possessed methamphetamine, the same drug that he was accused of conspiring to manufacture. The amount of money in the vehicle and the fact that the methamphetamine was sectioned off into squares, with a portion removed, supported the inference that Christoferson was selling methamphetamine. Officer Thomas also noted, as has ...