U.S. v. Stelivan, s. 97-1031

• Decision Date: 08 September 1997
• Docket Number: 97-1032 and 97-1034,Nos. 97-1031,s. 97-1031
• Citation: 125 F.3d 603
• Parties: UNITED STATES of America, Plaintiff--Appellee, v. Ruffus Raglin STELIVAN, Defendant--Appellant. UNITED STATES of America, Plaintiff--Appellee, v. Paul Anthony McGEE, Defendant--Appellant. UNITED STATES of America, Plaintiff--Appellee, v. Michael Dean RAGLIN, Defendant--Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 603

125 F.3d 603

UNITED STATES of America, Plaintiff--Appellee, v. Ruffus Raglin STELIVAN, Defendant--Appellant.

UNITED STATES of America, Plaintiff--Appellee, v. Paul Anthony McGEE, Defendant--Appellant.

UNITED STATES of America, Plaintiff--Appellee, v. Michael Dean RAGLIN, Defendant--Appellant.

Nos. 97-1031, 97-1032 and 97-1034.

United States Court of Appeals Eighth Circuit.

Submitted April 17, 1997.

Decided Sept. 8, 1997.

Omar F. Greene II, Little Rock, AR (Lori L. Freno-Engman, Little Rock, AR, on the brief), for appellant Stelivan in No. 97-1031.

Michael Warren Spades, Jr., Little Rock, AR, argued, for appellant McGee.

Paul Joseph James, Little Rock, AR, argued, for appellant Raglin.

John E. Bush, Little Rock, AR, argued (Paula J. Casey, United States Attorney, on the brief), for appellee.

Before RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON, and FAGG, Circuit Judges.

FLOYD R. GIBSON, Circuit Judge.

Appellant Ruffus Stelivan pleaded guilty to one count of conspiring to distribute cocaine and one count of conspiring to transport stolen property across a state line. See 18 U.S.C. § 371 (1994). The district court sentenced Stelivan to two consecutive sixty-month terms of imprisonment. ¹ Stelivan challenges his sentence on appeal.

A jury convicted appellants Michael Raglin and Paul McGee of aiding and abetting the interstate transportation of stolen property. See 18 U.S.C. § 2314 (1994). Raglin and McGee challenge their convictions on appeal.

I. BACKGROUND

In February of 1995, Patricia Davis agreed to assist the Federal Bureau of Investigation ("FBI") in its investigation of stolen four-wheel all-terrain vehicles ("four-wheelers") in Arkansas. The FBI's efforts focused primarily on Stelivan. Davis's cooperation was helpful because she had purchased numerous stolen four-wheelers from Stelivan in the past. During the investigation, the FBI monitored and recorded several illicit transactions between Stelivan and Davis. On four separate occasions in early October, Stelivan sold cocaine and crack cocaine to Davis. On October 25, 1995, Stelivan sold five stolen four-wheelers to Davis. Stelivan transported the vehicles from Arkansas to Oklahoma with the help of Raglin and McGee. Stelivan believed Davis wanted to sell the vehicles in Oklahoma because she already had a potential buyer and it would be safer to sell the vehicles in Oklahoma rather than in the area from which they were stolen. On October 25, Raglin, McGee, and Davis traveled from Arkansas to Oklahoma in a car borrowed from Raglin's girlfriend. Stelivan followed the threesome in a U-Haul truck loaded with the stolen four-wheelers. When the group reached Oklahoma, Raglin and Stelivan attempted to start the four-wheelers, to ensure that they were sale-worthy. McGee and Davis stood watch. An FBI agent arrived on the scene posing as Davis's "buyer." Davis gave Stelivan partial payment for the four-wheelers. Stelivan, Raglin, and McGee drove back to Arkansas, while Davis and the "buyer" remained behind with the U-Haul and stolen vehicles.

Stelivan pleaded guilty to one count of conspiracy to distribute cocaine and one count of interstate transportation of stolen property. The district court sentenced Stelivan to two consecutive sixty-month terms of imprisonment. Stelivan challenges his sentence claiming that the district court committed error when it applied the Sentencing Guidelines Manual's career offender guideline to his sentence. He also contends that the crack cocaine versus powder cocaine sentencing ratio is unconstitutional. We affirm Stelivan's sentence.

A jury convicted Raglin and McGee of aiding and abetting the interstate transportation of stolen property. On appeal, Raglin and McGee argue that the district court abused its discretion when it improperly admitted hearsay testimony and committed error when it denied their motions for acquittal. Raglin additionally claims that the government's use of leading questions prejudiced his trial. Because we conclude that the district court ² did not commit error, we affirm.

II. DISCUSSION

A. Stelivan's arguments

At Stelivan's sentencing, the district court applied the career offender guideline after determining that he committed an offense involving a controlled substance. See U.S. Sentencing Guidelines Manual § 4B1.1 (1995). Stelivan claims that the district court should not have applied the career offender guideline because 18 U.S.C. § 371, the statute under which he pleaded guilty, is a conspiracy offense rather than a controlled substance offense. Stelivan pleaded guilty to conspiring to distribute cocaine. Under the sentencing guidelines, the term "controlled substance offense" includes "the offenses of aiding and abetting, conspiring, and attempting to commit such offenses." U.S. Sentencing Guidelines Manual § 4B1.2, application note 1 (1995); see also United States v. Mendoza-Figueroa, 65 F.3d 691, 694 (8th Cir.1995) (en banc) (holding that Sentencing Commission's decision to include conspiracies to commit controlled substance offenses under career offender guideline was within statutory authority), cert. denied, 516 U.S. 1125, 116 S.Ct. 939, 133 L.Ed.2d 864 (1996). Therefore, the district court properly determined that Stelivan should be sentenced as a career offender. ³ See Mendoza-Figueroa, 65 F.3d at 694. We also reject Stelivan's contention that the crack cocaine versus powder cocaine sentencing ratio is unconstitutional because this argument is foreclosed by opinions of this court. See, e.g., United States v. Jackson, 67 F.3d 1359, 1367 (8th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1684, 134 L.Ed.2d 785 (1996); United States v. Clary, 34 F.3d 709, 710-14 (8th Cir.1994), cert. denied, 513 U.S. 1182, 115 S.Ct. 1172, 130 L.Ed.2d 1126 (1995).

B. Raglin's and McGee's arguments

During Raglin and McGee's trial, Davis testified extensively about conversations she had with Stelivan regarding the October 1995 four-wheeler transaction. Davis also testified about conversations she had with Raglin and McGee during their drive to Oklahoma. McGee contends that the district court should not have allowed Davis's testimony regarding statements by Stelivan and Raglin because the Government did not establish McGee's participation in a conspiracy by a preponderance of evidence. McGee therefore reasons that the statements were inadmissible as hearsay. Raglin raises the same argument regarding statements by Stelivan and McGee.

"A coconspirator's out-of-court statement is admissible against a defendant if the government establishes: (1)[t]hat a conspiracy existed; (2) that the defendant and the declarant were members of the conspiracy; and (3) that the declaration was made during the course and in furtherance of the conspiracy." United States v. Raymond, 793 F.2d 928, 930 (8th Cir.1986) (quotation and citation omitted). The Government must demonstrate the conspiracy by a preponderance of the evidence and "may meet its burden using the disputed statements themselves." United States v. Carper, 942 F.2d 1298, 1301 (8th Cir.), cert. denied, 502 U.S. 993, 112 S.Ct. 614, 116 L.Ed.2d 636 (1991). The following evidence established McGee's participation in the conspiracy by a preponderance of evidence: (1) Stelivan testified that, prior to the trip, he told McGee he was going to transport vehicles to Oklahoma; (2) McGee agreed to accompany Stelivan and Davis on the trip; (3) McGee called Stelivan to tell him where to find the keys to the U-Haul; (4) Davis testified that Stelivan told her that McGee would be going with them to Oklahoma; (5) photographic evidence showed McGee and Raglin picking up Davis to drive her to Oklahoma; (6) during the trip to Oklahoma, McGee asked Davis if she had a need for any stolen John Deere lawnmowers; and (7) photographic and video evidence showed McGee's presence in Arkansas and Oklahoma during the interstate transportation of the stolen property.

Similar evidence established Raglin's participation in the conspiracy: (1) Raglin borrowed his girlfriend's car to drive Davis to Oklahoma; (2) photographic and video evidence showed Raglin's presence in Arkansas and Oklahoma during the commission of the crime; (3) upon arrival in Oklahoma, Raglin helped Stelivan get the four-wheelers started; (4) Stelivan told Davis ahead of time that Raglin and McGee would drive her to Oklahoma; (5) Davis testified that, during the drive to Oklahoma, Raglin informed her that he was very tired because he had been up since 2:30 a.m. "getting" the four-wheelers; (6) Raglin and McGee picked Davis up to drive her to Oklahoma; (7) Raglin told Davis he was glad to be going on the trip because he had not worked in some time and needed the money; and (9) Raglin told Davis that he had rented the U-Haul for the trip and bought a lock for the U-Haul. After reviewing the evidence in the record, we conclude the Government established that McGee and Raglin participated in a conspiracy to transport stolen property across state lines by a preponderance of the evidence. Therefore, the district court properly admitted the testimony in question as nonhearsay. See Fed.R.Evid. 801(d)(2)(E).

McGee and Raglin further argue that the district court committed error when it rejected their motions for judgment of acquittal. Specifically, both appellants claim that the Government did not prove they had knowledge that the four-wheelers were stolen. When reviewing the sufficiency of the evidence, we will view the evidence in the light most favorable to the Government and will give the Government the benefit of all inferences that may logically be drawn from such evidence. See ...