U.S. v. Severson, s. 92-3818

• Decision Date: 18 August 1993
• Docket Number: 92-3836,Nos. 92-3818,s. 92-3818
• Citation: 3 F.3d 1005
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David SEVERSON and John Steele, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1005

3 F.3d 1005

UNITED STATES of America, Plaintiff-Appellee, v. David SEVERSON and John Steele, Defendants-Appellants.

Nos. 92-3818, 92-3836.

United States Court of Appeals Seventh Circuit.

Argued June 3, 1993.

Decided Aug. 16, 1993.

As Corrected Aug. 18, 1993.

Robert Anderson, Asst. U.S. Atty., argued, Madison, WI, for plaintiff-appellee in Nos. 92-3818 & 92-3836.

Charles W. Giesen, Morris D. Berman, argued, Giesen & Berman, Madison, WI, for defendant-appellant in No. 92-3818.

David E. Lasker, argued, Julian, Olson & Lasker, Madison, WI, for defendant-appellant in No. 92-3836.

Before BAUER, Chief Judge, CUDAHY, and KANNE, Circuit Judges.

BAUER, Chief Judge.

A jury convicted David Severson and John Steele of conspiracy to possess marijuana with the intent to distribute. 21 U.S.C. Sec. 846. The district court sentenced each defendant to 87 months imprisonment followed by four years supervised release. We affirm their convictions, and affirm their sentences in part. We remand a portion of their sentences so that the district court may conduct further proceedings to evaluate new evidence and its possible affect on the sentencing increase for obstruction of justice and denial of a reduction for acceptance of responsibility.

I.

Debra Gahring was driving on an Arizona highway en route to Madison, Wisconsin on October 30, 1991. She and another woman were transporting 170 pounds of marijuana intended for distribution in the dairy state. Gahring was pulled over by a state trooper, who discovered the goods. She told the trooper that the marijuana came from a source in Mexico. She also told him about her trip, and agreed to cooperate with the authorities. (Tr. v. 13 p. 28). Federal agents were called in, and they decided that Gahring should complete the trip to Madison, but instead of her passenger, they decided she should be accompanied by a Drug Enforcement Administration ("DEA") agent. (Tr. 2-A-17).

This was not the first time that Gahring had made the marijuana run to Wisconsin. She had made six previous trips between December 1990 and September 1991. (Tr. v. 13 p. 6-26). Those six runs involved increasing quantities of marijuana, ranging from 20 pounds in 1990 to 80 pounds in September 1991. The amounts increased because her Wisconsin connection, Thomas Kaltenberg, indicated he could distribute more marijuana than the amount she had been providing. (Tr. v. 13 p. 27). Madison police estimated that Gahring transported more than 400 pounds of marijuana during that time. (Tr. 3-B-32). On the final run, which lead to her arrest, Gahring transported more than double the amount of the most recent load of marijuana.

Typically, when Gahring arrived in Madison, she rented a motel room and called Kaltenberg. Kaltenberg would contact other distributors, and they would meet to break the marijuana into smaller packages for later resale. In the three runs prior to the arrests, the marijuana was taken to Steele's farmhouse for this purpose. (Tr. 3-A-9-36). On the final run, Gahring followed the usual drill, checked into a motel and called Kaltenberg. Later, she and the agent met with him at the motel room, where they discussed the marijuana transaction. (Tr. 2-A-21). The meeting among the agent, Kaltenberg, and Gahring was recorded. (Govt.Exh. 2). Usually when Gahring delivered the marijuana, she allowed the Wisconsin distributors to sell it and then pay her from the proceeds. This time, however, Gahring and the agent told Kaltenberg that they had to collect the money upfront. Kaltenberg balked at the change, but stayed in the deal. The next day Kaltenberg called Gahring at the motel. (Govt.Exh. 3). In that conversation, Kaltenberg told Gahring he was going to meet "Dave" at a specified time and that they would discuss the marijuana transaction. Surveillance on Kaltenberg's house revealed that David Severson went to Kaltenberg's house at the specified time. Agents followed Severson when he left Kaltenberg's home and tailed him as he drove to Steele's house. (Tr. 3-B-36-38).

After meeting with Severson, Kaltenberg went to Gahring's hotel room to examine the marijuana. He was arrested after negotiating to buy the marijuana; 10 pounds for himself, and 50-60 pounds for "Dave". (Tr. 2-A-31). When he was arrested, officers seized a duffel bag containing a triple beam scale and zipper-lock plastic bags. (Tr. 2-A-33). Kaltenberg agreed to cooperate with the agents. He called Severson, and then put the agent on the telephone to discuss the marijuana deal. (Govt.Exh. 7). They arranged to meet at a local bar to discuss the transaction further. At the bar, Severson tried to negotiate a delivery of 50 pounds of marijuana without fronting the money. To assuage the agent's fears that she would never be paid, Severson told her that he had three or four customers that he had dealt with for years and whom he trusted. He told the agent that the customers could be counted on for money. (Tr. 2-A-41 & 42). Severson was arrested shortly after this conversation. Like Kaltenberg and Gahring, Severson agreed to cooperate with the agents. He told Madison Police Sergeant Mark Bradley that he was to make sure that approximately 30 pounds of marijuana was delivered to another individual at a different location. (Tr. 3-B-49). ¹ Severson also acknowledged his earlier telephone conversation with Kaltenberg in which they arranged the time and place to deliver the marijuana. (Tr. 3-B-51).

Severson called Steele to discuss the shipment and the need to pay for the marijuana upfront. This call was also recorded. (Tr 2-A-34). Steele was peeved that Gahring and the agent were demanding money instead of fronting the marijuana as Gahring had done in the past. He asked about "Tom and the other one", meaning Kaltenberg and the undercover DEA agent. Steele suspected the agent of being a cop, but told Severson to bring her to his house, where he could talk to her himself. Severson brought more than the undercover agent. He also brought several members of the law enforcement community to the house, who arrested Steele. (Tr. 2-A-44). Inside the house, officers seized a triple beam scale and a box of gallon-size plastic bags. (Govt.Exh. 8/8A).

Steele began cooperating with the authorities after his arrest. He told Sergeant Bradley that he had three to five customers and that three of those customers had been told that the marijuana shipment had arrived. Steele also told Bradley that two of the three customers were his, and the other "belonged" to Severson. (Tr. 3-B-57). Further arrests were made when the "customers" came to Steele's house to buy marijuana. (Tr. 3-B-58-76).

Gahring, Kaltenberg, and other defendants pleaded guilty. Steele and Severson stopped cooperating and chose to stand trial. They were tried before a jury, and convicted on the counts charged in the indictments. When sentencing them, the district court increased their sentences for obstruction of justice based on contradictory testimony they delivered at the pretrial hearings and at the trial. (Testimony Abstracts, Dkt. 136 & 137). The court also denied their motions for reductions in their sentences for acceptance of responsibility.

Steele and Severson appeal their convictions and sentences. First, they challenge the district court's denial of their request for a multiple conspiracy jury instruction. Second, they challenge the quantity of marijuana that the district court attributed to them when calculating their sentences. Third, they challenge the denial of a decrease in their sentences for acceptance of responsibility for the crimes, and they challenge the increase in their sentences for obstruction of justice. The defendants also raise separate challenges. Steele argues that his due process rights were violated because he received an unusually harsh sentence because he opted for a jury trial. He also argues that his sentence should be reduced because he was a "minor participant" in the conspiracy. Severson argues that the government committed prosecutorial misconduct because the assistant United States Attorney improperly vouched for the credibility of one of the witnesses.

II.

A. The Joint Claims:

1. Multiple conspiracy claims:

Steele and Severson claim that the district court improperly denied their tendered "multiple conspiracy" jury instruction. They argue that the instruction should have been given because the evidence at trial did not establish the overarching conspiracy charged in the indictment. The defendants did not present any proof at trial of separate conspiracies but they rely instead on the government's evidence. Severson argues that the evidence shows only that he conspired with Kaltenberg. (Severson Brief at 16-19). Steele argues that the evidence shows only that he conspired only with Severson, or with Severson and Lysa Wisland, a Severson customer. They argue, therefore, that the conspiracy charged is at variance with the conspiracy proved at trial. (Steele Brief at 32-35).

A variance occurs only when the proof adduced at trial is not enough for a reasonable jury to find beyond a reasonable doubt that a single conspiracy existed, but rather, that multiple conspiracies existed. United States v. Townsend, 924 F.2d 1385, 1389 (7th Cir.1991). A defendant's conviction must be reversed only if the variance between the indictment and the proof affected the defendants' substantial rights. United States v. Marshall, 985 F.2d 901, 906 (7th Cir.1993). If the proof at trial shows that the defendants participated in both the conspiracy charged in the indictment and a different, "varying" conspiracy, the variance is harmless and will not result in reversal. Id. at 907. A variance challenge to multiple conspiracies is similar to a challenge to the sufficiency of the evidence of proof that the defendants participated in the single conspiracy. Townsend, 924 F.2d at 1389.

We look to United States v. Curry, 977 F.2d 1042, 1052 (7th Cir.1992), for guidance. There, the...