U.S. v. Samuelson, s. 81-2346

• Decision Date: 06 January 1983
• Docket Number: Nos. 81-2346,82-1103,s. 81-2346
• Parties: UNITED STATES of America, Appellee, v. Jay Kenton SAMUELSON, Appellant. UNITED STATES of America, Appellee, v. Danny Gene HOFFARTH, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 255

697 F.2d 255

UNITED STATES of America, Appellee, v. Jay Kenton SAMUELSON, Appellant.

UNITED STATES of America, Appellee, v. Danny Gene HOFFARTH, Appellant.

Nos. 81-2346, 82-1103.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 11, 1982.

Decided Jan. 6, 1983.

Michael L. Pritzker, Ltd., Michael L. Pritzker, Marcia L. Smith, Chicago, Ill., for Samuelson.

Maurice Graham, Brimmell & Graham P.A., Fort Lauderdale, Fla., for appellant, Hoffarth.

Rodney S. Webb, U.S. Atty., H. Gary Annear, First Asst. U.S. Atty., Fargo, N.D., for appellee.

Before LAY, Chief Judge, HENLEY, Senior Circuit Judge, and ARNOLD, Circuit Judge.

HENLEY, Senior Circuit Judge.

Jay Kenton Samuelson and Danny Gene Hoffarth challenge their convictions for various drug related offenses. Their appeals, which are based on separate trials, have been consolidated. With respect to Samuelson, the judgment of the district court is affirmed in part and reversed in part. With respect to Hoffarth, the judgment of the district court is affirmed.

Appellants were charged in a fifty-nine count indictment along with sixteen other defendants. The charges arose from an alleged drug conspiracy involving the sale of amphetamines and cocaine. Samuelson was the central figure in the operation, which was based in Fargo, North Dakota. Hoffarth's participation was based on a number of cocaine transactions in Bismarck.

Samuelson was involved directly or indirectly in numerous drug transactions during the period from July or August of 1978 to April or May of 1980. The government produced a number of witnesses who testified that Samuelson sold drugs directly to them, or that he supervised the transactions, or that he was the source of the drugs they purchased.

One of Samuelson's buyers, Thomas Hornbacher, testified about a series of amphetamine purchases beginning in November, 1978 and ending in November, 1979. Hornbacher was introduced to Samuelson in Fargo by Wayne Hetland who arranged with Samuelson for Hornbacher to take over Hetland's "business" while Hetland was out of town. On November 10, 1978 Hornbacher purchased a large quantity of amphetamines from Samuelson. Later in November Samuelson arranged another sale to Hornbacher, and, during the early part of December, the two men travelled to Minneapolis to complete the transaction. They returned to Minneapolis in April, 1979 for yet another sale. Later in April Hornbacher placed another large order and was instructed by Samuelson to rent a room at a certain motel in Fargo. After renting the room, Hornbacher gave the key to Samuelson. Hornbacher later returned to the motel pursuant to Samuelson's instructions and found the drugs in a suitcase. The next day Samuelson asked Hornbacher to deliver another suitcase of drugs to Joseph Schmalz in Minot.

Hornbacher further testified that in June, 1979 he accompanied Samuelson and Samuelson's brother to Minnesota to buy some cocaine. ¹ Samuelson called Hornbacher in September to negotiate another amphetamine sale. Hornbacher and Hetland, who had returned from out of town, agreed to the terms and the drugs were delivered by another of Samuelson's brothers. Another sale also took place in September at which time Samuelson was present. In October Hornbacher arranged to sell a large quantity of amphetamines to Dennis Siewert who intended to sell them to Charles Another of Samuelson's buyers, Joseph Schmalz, testified that he was in contact with Samuelson in April, 1979, concerning a delivery of amphetamines and that Samuelson asked him to be a distributor in Minot. Samuelson would front the amphetamines to Schmalz who would sell them to two individuals designated by Samuelson. After the sale, Samuelson would make arrangements to pick up the money. Schmalz also corroborated Hornbacher's testimony concerning Hornbacher's delivery of amphetamines to Schmalz in Minot.

Lee, an undercover agent. The sale was not completed due to Samuelson's failure to supply the drugs to Hornbacher. In November Hornbacher again attempted to complete the deal with Siewert, and obtained the drugs pursuant to Samuelson's directions. Hornbacher and Siewert were subsequently arrested.

In connection with a drug purchase in the fall of 1979, Samuelson instructed Schmalz to drive to Fargo and then to fly to Sioux Falls, South Dakota, where he met Samuelson's brothers and other individuals. He then returned to Samuelson's residence in Fargo where the purchase was completed. Pursuant to another sale in the early part of 1980, Schmalz went to Denver at Samuelson's direction, where he met one of Samuelson's brothers and two other individuals whom he remembered from Sioux Falls. Schmalz was instructed to go to the airport where he was given a baggage claim ticket for two suitcases. The suitcases were claimed, and, after completing the transaction, he returned to Minot. A month or two later, Samuelson came to Schmalz and arranged still another purchase. This time, Schmalz was told to go to Billings, Montana. After some delay in Billings, Schmalz left without completing the transaction.

Other witnesses also testified regarding Samuelson's drug related activities, and telephone records were introduced to show the numerous calls between Samuelson and the persons involved in the various drug transactions.

The evidence of Hoffarth's drug related activities focused on his sales of cocaine to Lowell Baillie. Baillie had purchased amphetamines on several occasions in the early part of 1978 in Bismarck from Adrian Volk, who allegedly obtained his supply from Samuelson. In the late summer of 1978 Baillie met Danny Hoffarth and Bill Griffin in Bismarck and soon thereafter purchased a large quantity of cocaine from Hoffarth. In October, 1979 Baillie made a smaller purchase from Hoffarth and Griffin, and then negotiated a larger purchase of cocaine which he in turn sold to an undercover agent. A similar transaction with the agent was arranged in November, at which time Baillie and Griffin were arrested. While Baillie was in jail, a bondsman from Fargo contacted him, as did Fred Kraemer, an attorney from Fargo who had represented Hornbacher. Baillie had never met either man, but both men indicated that they had been sent to help him. After he was released on bond, they all got into Kraemer's car, and Kraemer made a call on the car's mobile telephone to Samuelson who was apparently at a motel in Bismarck. Hornbacher testified that Samuelson later expressed concern to him about the arrest in Bismarck and said that the cocaine involved in that arrest was his and that he had lost his money because of the arrest.

After separate jury trials, Samuelson was convicted of possession of amphetamines with intent to distribute, distribution of amphetamines, conspiracy to distribute amphetamines and cocaine, engaging in a continuing criminal enterprise, and related offenses; Hoffarth was convicted of possession of cocaine with intent to distribute, distribution of cocaine, and conspiracy to distribute amphetamines and cocaine. We will address their arguments separately.

SAMUELSON

Samuelson contends that the evidence was insufficient to sustain his convictions. In reviewing the record, we must consider the evidence in the light most favorable to the government and accept all reasonable inferences as established. United States v Samuelson first attacks the sufficiency of the evidence supporting his conviction for engaging in a continuing criminal enterprise. A conviction for violation of 21 U.S.C. Sec. 848 requires the establishment of the following elements: the commission of a continuing series of violations of federal narcotics laws, in concert with five or more persons, by a person occupying a management or organizing position, who receives substantial income therefrom. We think the record fully supports Samuelson's conviction on this count. His convictions on numerous counts charging violations of federal narcotics laws establish a continuing series of violations. ² It is clear that at least five persons acted in concert with Samuelson in the series of drug transactions, ³ and that Samuelson occupied a position of management and supervision. He negotiated the sales of large quantities of drugs, made arrangements for payment and delivery, instructed the participants in the transactions, and perhaps furnished bonds and attorneys for those who were arrested. See United States v. Mannino, 635 F.2d 110, 116-17 (2d Cir.1980); United States v. Kirk, 534 F.2d 1262, 1277-78 (8th Cir.1976), cert. denied, 430 U.S. 906, 97 S.Ct. 1174, 51 L.Ed.2d 581 and 433 U.S. 907, 97 S.Ct. 2971, 53 L.Ed.2d 1091 (1977). The evidence also indicates that Samuelson received substantial income from his drug related activities.

Swarek, 656 F.2d 331, 333 (8th Cir.), cert. denied, 454 U.S. 1034, 102 S.Ct. 573, 70 L.Ed.2d 478 (1981).

We find no merit in Samuelson's argument that the only evidence of his guilt consisted of hearsay statements which were contradicted by exculpatory hearsay, and that the evidence is therefore insufficient to uphold his convictions. In the first place, there was non-hearsay evidence, such as telephone records and testimony relating to Samuelson's actions. Furthermore, "[i]t is for the jury to resolve questions about conflicting evidence and questions as to the weight and credibility of witnesses." United States v. Todd, 657 F.2d 212, 216 (8th Cir.1981), cert. denied, --- U.S. ----, 102 S.Ct. 1288, 71 L.Ed.2d 469 (1982).

We are more troubled by Samuelson's contention that the conspiracy and substantive drug charges are lesser included offenses of the continuing criminal enterprise, and that if his conviction for engaging in a continuing criminal enterprise is upheld, double jeopardy bars conviction and sentence on these other counts. We note that Samuelson apparently made no request for a lesser included offense instruction, although he did object at the sentencing hearing to the imposition of...