U.S. v. Roach

• Decision Date: 22 December 1998
• Docket Number: Nos. 98-1762,98-1767 and 98-1768,s. 98-1762
• Citation: 164 F.3d 403
• Parties: UNITED STATES of America, Appellee, v. LaVonne ROACH, Appellant. United States of America, Appellee, v. Rodney Jackson, Appellant. United States of America, Appellee, v. Kevin Eagle Tail, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 403

164 F.3d 403

UNITED STATES of America, Appellee, v. LaVonne ROACH, Appellant.

United States of America, Appellee, v. Rodney Jackson, Appellant.

United States of America, Appellee, v. Kevin Eagle Tail, Appellant.

Nos. 98-1762, 98-1767 and 98-1768.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 19, 1998.

Decided Dec. 22, 1998.

Rehearing Denied in Nos. 98-1762

and 98-1767 Feb. 24, 1999.

Rehearing and Suggestion for Rehearing En Banc Denied in

No. 98-1768 Feb. 24, 1999.

John R. Murphy, Rapid City, SD, argued, for appellant Roach.

James F. Margadant, Rapid City, SD, argued, for appellant Jackson.

Brian L. Utzman, Rapid City, SD, argued, for appellant Eagle Tail.

Mark A. Vargo, Asst. U.S. Atty., Rapid City, SD, argued, for appellee.

Before HANSEN, LAY, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

LaVonne Roach, Rodney Jackson, and Kevin Eagle Tail appeal their convictions and sentences for conspiracy to distribute methamphetamine in violation of 21 U.S.C. § 846. They seek a new trial or resentencing because of claimed errors including admission of hearsay evidence, juror misconduct, improper jury instructions, and several sentencing issues. We affirm.

I.

A one count indictment charged appellants with a conspiracy to distribute methamphetamine in South Dakota. The government presented evidence at trial indicating that the conspiracy began no later than the summer of 1994 and continued until January 1996. Its organization changed over time. In the beginning Mario Osario controlled a distribution network which moved methamphetamine from California to Rapid City, South Dakota by way of Salt Lake City. Although Osario occasionally travelled to Rapid City and participated in transactions there, his associate Sergio Gutierrez was primarily responsible for the flow of drugs and money between the states. At least monthly and sometimes weekly, Gutierrez delivered methamphetamine to LaVonne Roach, Osario's contact in Rapid City. Payment for the drugs was made by Roach to Gutierrez within a few days. Gutierrez made between 10 and 20 trips during this period, generally carrying between 3 and 10 pounds of methamphetamine per trip. On the return trips he carried money back to Osario.

Roach distributed the methamphetamine to a number of local users and dealers, including Rodney Jackson, Kevin Eagle Tail, Phyllis Fairbanks, ¹ Patrick Peschong, Jeff Mousel, and others. Osario was often present when Mousel purchased methamphetamine from Roach. Clay Williamson and Toby Ness became involved in distributing the methamphetamine through Mousel. The dealers Roach supplied would turn to one another when she was unavailable or without drugs. The government presented evidence of transactions between Fairbanks and Eagle Tail, Mousel and Jackson, and Peschong and Eagle Tail.

The supply chain changed with the death of Osario on April 30, 1995. Law enforcement officers had arrested him on his way into Rapid City and seized 2.74 pounds of 99% pure methamphetamine. Osario agreed to cooperate by making a controlled delivery to Jeff Mousel. Instead of completing the transaction, however, he obtained a gun from Mousel and committed suicide shortly after their meeting. After Osario's death, Gutierrez developed another methamphetamine source and agreed to continue supplying Roach, but he also sold to other dealers in the Rapid City area, including Jackson and Eagle Tail. Gutierrez was arrested in January 1996.

After a three day trial, the jury found all three defendants guilty of conspiracy. The defendants filed a motion for new trial based on juror misconduct. The district court denied that motion and a subsequent motion to reconsider. At sentencing the court found that the conspiracy involved over 42 kilograms of methamphetamine, producing a base offense level of 38 under U.S. Sentencing Guidelines Manual § 2D1.1(c)[U.S.S.G.]. The court gave Roach a four level enhancement based on her leadership role in the conspiracy and Eagle Tail a two level enhancement for possession of a firearm. After taking into account their individual criminal histories, the district court sentenced Roach to 30 years imprisonment and both Jackson and Eagle Tail to 25 years.

Appellants appeal their convictions, the denial of their post-trial motion for a new trial, and their sentences. They claim that they are entitled to a new trial because of hearsay evidence, the court's refusal to issue a subpoena for certain bank records or to give a multiple conspiracy instruction, and juror misconduct. Appellants also claim the court erred in its drug quantity findings and in attributing drugs to them that Osario had intended to deliver to Mousel, and Rodney Jackson contends that it was wrong to consider two misdemeanor convictions in determining his criminal history.

II.

A.

Government witnesses testified at trial about many out of court statements relating to drug distribution. ² There were statements attributed to Roach, Jackson, Eagle Tail, Mousel, Fairbanks, Peschong, Osario, Gutierrez, Wanda Edwards, Beaver Pacheco, Steve Cordova, Pat Tracy, and others. Appellants claim that this testimony was hearsay and that the government failed to establish that the declarants had participated in a conspiracy with each defendant and that every statement was in furtherance of a single conspiracy. They also claim the district court did not make sufficient findings in ruling on these issues. We review the trial court's evidentiary decisions for abuse of discretion and will only reverse if an error substantially prejudiced the outcome. See United States v. Goodson, 155 F.3d 963, 969 (8th Cir.1998); Pittman v. Frazer, 129 F.3d 983, 989 (8th Cir.1997).

The district court addressed the admissibility of coconspirator statements at several points during the proceedings, starting with an objection during the testimony of the first government witness. When the prosecutor asked Toby Ness about statements by Jeff Mousel, defense counsel objected. The court overruled the objection, saying:

The objection has been made to the statement as hearsay.... [A] statement is not hearsay if made by a co-conspirator of a party during the course and in furtherance of the conspiracy [citation omitted]. To satisfy the requirements of [the exception], the government must demonstrate that, 1. A conspiracy existed, 2. That the defendants were part of the conspiracy; and 3. That the declaration was made in the course of and in furtherance of the conspiracy. These elements must be proven ... by a preponderance of the evidence.... [S]tatements by a co-conspirator identifying a fellow conspirator, are considered to be in furtherance of a conspiracy.... Moreover, statements which reveal the existence and progress of the conspiracy are also in furtherance of a conspiracy. The evidence so far does establish a conspiracy on the part of Mousel and Mr. Ness. Statements which were made identifying others would be in furtherance of the conspiracy.... The objection that testimony is hearsay is denied.

Soon thereafter, Roach's counsel requested and received a standing hearsay objection to cover every witness. ³

The court again addressed the coconspirator exception during the testimony of Sergio Gutierrez after he referred to statements by Mario Osario. Jackson's attorney objected and the district court ruled that the evidence was admissible under 801(d)(2)(E). ⁴

At the close of the government's case, the defendants moved for a mistrial or judgment of acquittal and Jackson's attorney argued that the government had not established the foundation for coconspirator statements because it had not shown that the evidence revealed a single conspiracy instead of multiple conspiracies. The court replied that there was "absolutely overwhelming" evidence of a conspiracy to distribute methamphetamine in Rapid City and specifically found that Ness, Peschong, Gutierrez, Fairbanks, Williamson, Mousel, and all three defendants were involved in this conspiracy.

Later, during the charge conference, the court stated, "[U]nder United States v. Bell, I have concluded all of what would otherwise be hearsay statements [sic] and admitted them under 801(d)(2)(E) as statements made in furtherance of the conspiracy, made by a co-conspirator, whether an indicted or nonindicted co-conspirator." The court went on to find that the conspiracy included Mousel, Williamson, Peschong, Ness, Gutierrez, and Osario. None of the parties requested further findings or made a record of the specific points of objection they now address on appeal.

An out of court statement by a coconspirator is not hearsay and may be introduced as an admission by a party opponent. Fed.R.Evid. 801(d)(2)(E). As the district court indicated, there are several requirements that a proponent must show. They are that a conspiracy existed, that the declarant and the defendant were both members of the conspiracy, and that the statement was made during the course of and in furtherance of the conspiracy. ⁵ See United States v. Bell, 573 F.2d 1040, 1043 (8th Cir.1978). See also United States v. Jorgensen, 144 F.3d 550, 561-62 (8th Cir.1998); United States v. Escobar, 50 F.3d 1414, 1423 (8th Cir.1995). The district court also correctly stated that the proponent must prove these requirements by a preponderance of the evidence. See Bourjaily v. United States, 483 U.S. 171, 175, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987); Jorgensen, 144 F.3d at 561; United States v. Roulette, 75 F.3d 418, 424 (8th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 147, 136 L.Ed.2d 93 (1996).

A court may conditionally admit a challenged statement subject to later proof to satisfy the coconspirator rule and defer a final ruling on admissibility until after hearing the relevant evidence. See Bell, 573 F.2d at 1044. See also United States v. Coco, 926 F.2d 759, 761 (8th Cir.1991); United States v. Williams, 604 F.2d 1102, 1112-13 (8th Cir.1979). The content of the proffered...