U.S. v. Slagg

• Citation: 651 F.3d 832
• Decision Date: 05 October 2011
• Docket Number: 10–3369.,Nos. 10–3269,s. 10–3269
• Parties: UNITED STATES of America, Appellee,v.Donavan Michael SLAGG, Appellant.United States of America, Appellee,v.Gregory Scott Taylor, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

651 F.3d 832

UNITED STATES of America, Appellee,

v.Donavan Michael SLAGG, Appellant.United States of America, Appellee,

v.Gregory Scott Taylor, Appellant.

Nos. 10–3269

10–3369.

United States Court of Appeals, Eighth Circuit.

Submitted: June 13, 2011.Filed: Aug. 11, 2011.Rehearing and Rehearing En Banc Denied Oct. 5, 2011.

Christopher Lancaster, AFPD, argued, Scott D. McGregor, on the brief, Fargo, ND, for appellant in No. 10–3269.Marlo Pfister Cadeddu, argued, Dallas, TX, for appellant in No. 10–3369.Christopher C. Myers, AUSA, argued, Fargo, ND, for appellee.Before LOKEN, BEAM, and GRUENDER, Circuit Judges.GRUENDER, Circuit Judge.

A federal grand jury returned a superseding indictment charging seven defendants with conspiracy to possess with intent to distribute and to distribute methamphetamine. Five of the defendants pled guilty. The superseding indictment also charged six defendants—three of whom also were indicted on the drug conspiracy count—with conspiracy to launder money. Donavan Slagg and Gregory Taylor, two defendants who were charged with participating in both the drug conspiracy and the money laundering conspiracy, proceeded to trial. A jury found Slagg guilty of both counts and found Taylor guilty only of the drug conspiracy count. Both appeal.

I. BACKGROUND

This case concerns a loosely knit, non-hierarchical collection of persons who engaged in a series of transactions involving distribution-quantities of methamphetamine in and around Bismarck, North Dakota, from late 2008 to early 2009. Commencing no later than the fall of 2008, Slagg began supplying a significant number of persons with distribution-quantities of methamphetamine, including Amanda Harper, Levi Foerderer, Jared Reinisch, Billy Crawford, and Clint McBeth. Taylor, the other appellant in this case, also conducted numerous transactions with Slagg and Ty Zacher, an unindicted co-conspirator. He also engaged in various activities demonstrating his knowledge of and cooperation with the charged conspiracy.

During the same 2008–2009 period, another pair of methamphetamine dealers, Joseph Forrest and Robert Chavez, arrived in the Bismarck area from California. Although neither Forrest nor Chavez engaged in direct transactions with Slagg, they cultivated distribution-related relationships with many of Slagg's cohorts, including Bob Zacher, Harper, Engst, Foerderer, and Reinisch. At trial, Forrest testified that Taylor asked him what price he paid per ounce for methamphetamine and that Taylor then “said he was getting them somewhere else in Minnesota ... a little cheaper than what I said and that if I was willing to meet or beat his price that he would work with me or something.” Forrest declined Taylor's offer, although he continued to engage in drug-related ventures with other members of the Bismarck network. Harper helped Forrest sell methamphetamine by introducing him to people interested in purchasing drugs. Foerderer sold quantities of methamphetamine for both Forrest and Chavez, and, on one occasion, Bob Zacher and Foerderer pooled their money with Forrest to purchase methamphetamine from California. That purchase garnered a half pound of methamphetamine, to which Forrest added another half pound of cutting agent. Forrest also traveled to Las Vegas and Colorado on two or three occasions and brought back half-pound to one-pound quantities of methamphetamine. Moreover, at Reinisch's request, Engst traveled with Forrest to California to obtain four ounces of methamphetamine, and, upon their return to North Dakota, she sold at least one ounce on Forrest's behalf.

On January 13, 2009, Slagg was arrested and charged with drug violations under North Dakota law. The state district court judge set his bail at $50,000 cash. Slagg contacted his mother, Tamara Heid, to request her help in getting him out of jail. Slagg and Heid discussed the availability of funds in a series of telephone conversations, recorded by the Burleigh County Jail. Heid repeatedly expressed reluctance to discuss the issue on the telephone, asserting “I cannot go into details about anything on this, on anything, with the phones or anything, okay, I'm not going to do that, alright?” Gov't Ex. 12, at 4:54–5:04. Harper testified that Slagg did not have a legitimate job at this time and that she, Taylor, and Heid discussed sources for the bail money, including people “who owed [Slagg] money.” Additionally, Harper testified that Taylor, Bob Zacher, and Ty Zacher collected the money for Slagg's bail, and a petition for remission, submitted to the Drug Enforcement Administration (“DEA”) by Heid, stated that Taylor gave Heid $10,000 and Bob Zacher gave her $9,000. Having assembled the necessary funds, Heid and her companions were reluctant to post the bail. In a telephone call involving Heid, Slagg, and an “unidentified male,” the unidentified male characterized the risk of delivering the money as “the only problem right now” and “the one thing” impeding bailing Slagg out of jail. Gov't Ex. 16 at 3:14–3:16, 3:55–3:56. Additionally, the unidentified male twice remarked that using the money as bail would risk it “disappear[ing].” Id. at 11:53–11:55, 13:18–13:33. Although a bail bondsman was not necessary to post the bail, Heid ultimately retained two bail bondsmen to deliver the money to the Burleigh County Courthouse and paid them $1,000. Initially, she did not accompany the bondsmen to the court clerk's office, although she soon joined them there when they discovered that the money was $2,000 short. After they located the errant funds, the court clerk informed Heid and the bail bondsmen that one of them would have to sign the requisite IRS currency transaction form. Both Heid and the bail bondsmen manifested reluctance, but one of the bail bondsmen eventually signed the document. Heid then collected Slagg.

On September 24, 2009, a federal grand jury returned a superseding indictment charging Slagg, Taylor, Harper, Bob Zacher, Engst, Forrest, and Chavez with conspiracy to possess with intent to distribute and to distribute methamphetamine, a violation of 21 U.S.C. §§ 841(a)(1) and 846. The indictment also charged Slagg, Taylor, Heid,¹ Bob Zacher, and the two bondsmen with conspiracy to launder money, a violation of 18 U.S.C. § 1956(h), arising out of their efforts to post Slagg's bail. Finally, the indictment sought forfeiture of property “constituting or derived from any proceeds ... obtained directly or indirectly as a result of the violations,” including the $50,000 posted for Slagg's bail, pursuant to 18 U.S.C. § 982 and 21 U.S.C. § 853.

Harper, Engst, Forrest, and Chavez pled guilty to the drug conspiracy count, and Bob Zacher pled guilty to both the drug conspiracy and money laundering conspiracy counts. Slagg and Taylor elected to proceed to trial. At the close of the Government's case-in-chief, both defendants moved pursuant to Fed.R.Crim.P. 29(a) for a judgment of acquittal, which the district court ² granted only as to the money laundering conspiracy charge against Taylor. The jury found Slagg guilty on both the drug conspiracy and the money laundering conspiracy counts and found Taylor guilty on the drug conspiracy count, making a specific finding that the drug conspiracy in which they had participated involved 500 grams or more of methamphetamine. Both defendants then filed post-trial motions for judgment of acquittal and for a new trial, which the district court denied.

The district court sentenced Slagg to life imprisonment on the drug conspiracy count, the minimum sentence mandated by 21 U.S.C. § 841(b)(1)(A), to be served concurrently with a 240–month sentence on the money laundering conspiracy count. The court sentenced Taylor to 120 months' imprisonment on the drug conspiracy count, the minimum sentence mandated by § 841(b)(1)(A). Both defendants appeal.

II. DISCUSSIONA. Donavan Slagg

Slagg appeals the district court's denial of his motion for judgment of acquittal on both the drug conspiracy count and the money laundering conspiracy count. We review such a denial de novo, “viewing evidence in the light most favorable to the government, resolving conflicts in the government's favor, and accepting all reasonable inferences that support the verdict.” United States v. Yarrington, 634 F.3d 440, 449 (8th Cir.2011) (quoting United States v. Scofield, 433 F.3d 580, 584–85 (8th Cir.2006)). We will reverse “only if no reasonable jury could have found the defendant guilty beyond a reasonable doubt.” United States v. Donnell, 596 F.3d 913, 924 (8th Cir.2010) (quoting United States v. Espinosa, 585 F.3d 418, 423 (8th Cir.2009)), cert. denied, 562 U.S. ––––, 131 S.Ct. 994, 178 L.Ed.2d 831 (2011). Slagg also challenges the denial of his motion for a new trial on sufficiency grounds. We review this denial for abuse of discretion. United States v. Aguilera, 625 F.3d 482, 486 (8th Cir.2010). “The decision to grant or deny a motion for a new trial based upon the weight of the evidence is within the sound discretion of the trial court,” but “[u]nless the district court ultimately determines that a miscarriage of justice will occur, the jury's verdict must be allowed to stand.” United States v. Campos, 306 F.3d 577, 579 (8th Cir.2002).

1. Drug Conspiracy

“To establish that a defendant conspired to distribute drugs under 21 U.S.C. § 846, the government must prove: (1) that there was a conspiracy, i.e., an agreement to distribute the drugs; (2) that the defendant knew of the conspiracy; and (3) that the defendant intentionally joined the conspiracy.” United States v. Rolon–Ramos, 502 F.3d 750, 754 (8th Cir.2007) (quoting United States v. Jiminez, 487 F.3d 1140, 1146 (8th Cir.2007)). “An agreement to join a conspiracy ‘need not be explicit but may be inferred from the facts and circumstances of the case,’ ” United States v. Rodriguez–Mendez, 336 F.3d 692, 695 (8th Cir.2003) (quoting United States v. Evans, 970 F.2d 663, 669 (10th Cir.1992)), and “[a] single...