U.S. v. Schultz

• Decision Date: 08 December 1988
• Docket Number: No. 87-1394,87-1394
• Citation: 855 F.2d 1217
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leonard SCHULTZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1217

855 F.2d 1217

UNITED STATES of America, Plaintiff-Appellee, v. Leonard SCHULTZ, Defendant-Appellant.

No. 87-1394.

United States Court of Appeals Sixth Circuit.

Argued June 13, 1988.

Decided Sept. 1, 1988.

Rehearing and Rehearing En Banc Denied Dec. 8, 1988.

William VanDercreek (argued), Dallas, Tex., for defendant-appellant.

Frank J. Marine (argued), Sp. Counsel to Chief Organized Crime & Racketeering, Criminal Div., U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Before LIVELY and JONES, Circuit Judges, and BROWN, Senior Circuit Judge.

BAILEY BROWN, Senior Circuit Judge.

Defendant Leonard Schultz appeals his jury convictions for conspiracy to possess with intent to distribute and to distribute cocaine (21 U.S.C. Sec. 846), unlawful use of a communications facility (21 U.S.C. Sec. 843(b)), and interstate travel in aid of racketeering (18 U.S.C. Sec. 1952). Schultz argues that there is not sufficient evidence to sustain a conviction of conspiracy and that his travel, purely coincidental to the drug deal negotiations, did not violate the Travel Act. Schultz also contends that the trial court erred in refusing his request to subpoena FBI records, in refusing to give a jury instruction on Schultz's defense theory, in admitting certain government testimony linking him to organized crime, and in admitting evidence regarding an allegedly unrelated cocaine deal of Schultz's coconspirator. Finally, Schultz argues that the trial court failed to comply with the sentencing requirements of Federal Rule of Criminal Procedure 32, and that the judge fined Schultz consecutively in the written order after fining him concurrently in the oral sentence from the bench. We determine that none of these arguments is meritorious, and accordingly AFFIRM the convictions.

I

Schultz was charged, tried, and found guilty on all three counts of a three count indictment. Count Two, unlawful use of a communication facility (telephone), and Count Three, interstate travel in aid of racketeering, were premised on the underlying conspiracy to distribute cocaine of Count One. Defendant was sentenced to a total of five years imprisonment on all three counts and fined $250,000 on Count One and $250,000 on Count Two.

Schultz had been a confidential informer for the FBI for over thirty years but none of the information he supplied regarded drug transactions. His defense was that he was "setting up" his alleged coconspirators and conducting his own investigations. Schultz has a permanent residence in Detroit Michigan, and a condominium in North Miami Beach, Florida. The government offered evidence to show that from December 1984 to March 1985, Schultz conspired with Alan Nadell and with Sam Einhorn to distribute ten kilograms of cocaine. Nadell was arrested in March 1985, when he delivered one-half kilogram of cocaine to undercover Michigan State Police Officer James Tuttle. Nadell then became a government informer and witness at the trial. Also testifying were two FBI agents, as well as Einhorn, Tuttle, and Jeffrey Sand, a paid police informer.

In December 1984, Nadell and Schultz discussed distributing drugs for profit. Schultz also asked Einhorn, who lived in Detroit, to help sell cocaine and find buyers. Einhorn agreed. In early January, Einhorn asked Sand if he wanted to buy cocaine from a Florida contact. Einhorn arranged a meeting between himself, Sand, and Schultz in Detroit. Schultz agreed to sell Sand ten kilograms at $40,000 a kilo. Schultz would act as intermediary and obtain the cocaine from a source in Florida.

Schultz then contacted Nadell and asked him to obtain cocaine for some people in Detroit. Nadell agreed and contacted his drug source. Splitting of the profits from the deal was never discussed, but Nadell testified that he intended to split the profits 50/50 with Schultz.

Sand informed police of the deal and subsequent contacts, in person and over the telephone, were tape-recorded. In a January 17, 1985 conversation, Sand told Einhorn that he had the money for the cocaine and Einhorn agreed to arrange a meeting. Two days later, the two met with Schultz. Sand told Schultz that he had the money and was willing to drive to Florida to get the drugs, but that he first wanted a sample. Schultz suggested that the money be put in a safe deposit box and that his Florida contact would arrange the deal. From January 21 to January 31, 1985, Sand and Schultz discussed the deal over the phone. Schultz suggested a partial delivery since his contact was still trying to get the ten kilos. Sand told Schultz that the money was already in Florida and that he and his partner planned to go there in early February.

On February 5, Schultz told Sand that he was leaving for Florida on the 8th and told Sand to go to Florida. After arriving in Florida, Schultz spoke to Sand, still in Michigan, on the 12th and told him that his contact had the "ten acres" but that he wanted "42" ($42,000 per kilo rather than $40,000). Sand agreed to bring an additional $20,000. The next day Sand agreed to meet Schultz and Nadell on the 14th in Florida.

Sand and Tuttle flew to Miami on the 14th and met with Nadell. They agreed to meet the next day to discuss the arrangements for the deal. The following morning, Nadell told Sand and Tuttle that his people wanted to sell one kilo at a time with the money fronted. Tuttle would not accept the arrangement. Nadell informed Schultz of these meetings and told him he was having trouble getting all ten kilos.

On February 15, Schultz and Nadell spoke by telephone with Sand. Schultz explained that the piecemeal deal was to protect Sand and create trust. Sand responded that he had to talk with Tuttle. An hour later, Schultz and Nadell called Tuttle, who complained about the piecemeal deliveries. Schultz explained that he established that arrangement because it was their first deal. Tuttle said he would have to return to Michigan unless he received all ten kilos. Schultz and Tuttle agreed to try to work something out. Schultz told Nadell to make the arrangements and Nadell agreed to call Tuttle in Michigan.

The next day Tuttle and Sand returned to Michigan. Tuttle and Nadell spoke by telephone until March 22, 1985, in an attempt to complete the sale. During this time, Nadell had three or four telephone conversations with Schultz, who had returned to Michigan. Nadell asked Schultz to check out Tuttle. Schultz later informed Nadell that the telephone number that Tuttle had given Schultz was a workable number. Nadell called Schultz and told him that he might go to Michigan to complete the deal with Tuttle, and Schultz replied that if Nadell ever came to Michigan, Schultz could see that he was protected.

After numerous phone conversations between Nadell and Tuttle, the latter agreed to buy one-half kilo of cocaine to be delivered in Michigan. On March 22, 1985, Nadell did fly to Detroit, gave Tuttle the one-half kilo of cocaine in exchange for $25,000, and was arrested.

Although Nadell did not tell Schultz he was going to Michigan to sell cocaine to Tuttle and Schultz did not know that he was there, Nadell testified that he intended to split the profit from this sale with Schultz. Shortly after learning of the arrest, Schultz asked Einhorn if Sand was an informant. Schultz told Einhorn that if questioned by the FBI, he should tell "the truth" that Schultz was trying to "clean up the condo complex" to rid it of drug dealers.

The jury found Schultz guilty on all three counts. Schultz's motion for a judgment of acquittal was denied. The judge sentenced Schultz to a term of five years and a $250,000 fine on Count One, four years concurrent with Count One and a $250,000 fine on Count Two, and five years concurrent with Counts One and Two on Count Three.

II

Sufficient evidence for conspiracy

In reviewing a denial of a motion for judgment of acquittal, we must view the evidence and inferences drawn therefrom in the light most favorable to the government. Witness credibility is solely within the province of the jury. United States v. Pelfrey, 822 F.2d 628, 632 (6th Cir.1987). To sustain the jury's verdict, the evidence does not need to be inconsistent with every conclusion save that of guilt. United States v. Nelson, 419 F.2d 1237, 1242-43 (9th Cir.1969). We must affirm a conviction if any rational trier of fact could have found defendant guilty beyond a reasonable doubt. United States v. Bourjaily, 781 F.2d 539, 544 (6th Cir.1986), aff'd, --- U.S. ----, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987).

The nature of the agreement comprising a conspiracy can be inferred from circumstantial evidence. United States v. Butler, 618 F.2d 411, 414 (6th Cir.), cert. denied, 447 U.S. 927, 100 S.Ct. 3024, 65 L.Ed.2d 1121 (1980). "Drug distribution conspiracies are often 'chain' conspiracies such that agreement can be inferred from the interdependence of the enterprise." Bourjaily, 781 F.2d at 544. It is not necessary to prove that the defendant was aware of each act of his coconspirators in furtherance of the conspiracy. Pinkerton v. United States, 328 U.S. 640, 646-47, 66 S.Ct. 1180, 1183-84, 90 L.Ed. 1489 (1946).

Schultz argues that a conspiracy did not exist because he only participated in preliminary negotiations concerning the deal and did not agree to the details of the sale. The testimony showed that in December 1984, Einhorn had agreed to help Schultz sell cocaine by finding prospective buyers, and that by January, the two were meeting with Sand to arrange a sale of ten kilos. At the same time, Nadell agreed to get ten kilos of cocaine from his Florida drug source for Schultz to sell to persons in Michigan at $40,000 per kilo. Therefore, by January 1985, a conspiratorial agreement between Schultz, Einhorn, and Nadell had been reached regarding the quantity, price, and source of the drug. In addition, they understood what each of their roles was to be in the deal. See United States v. Anello, 765 F.2d 253,...