U.S. v. Wiley, s. 92-2469

• Decision Date: 28 June 1993
• Docket Number: Nos. 92-2469,92-2497,s. 92-2469
• Citation: 997 F.2d 378
• Parties: UNITED STATES of America, Appellee, v. Jeffrey WILEY, Appellant, UNITED STATES of America, Appellee, v. Curtis HOLUB, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 378

997 F.2d 378

UNITED STATES of America, Appellee, v. Jeffrey WILEY, Appellant, UNITED STATES of America, Appellee, v. Curtis HOLUB, Appellant.

Nos. 92-2469, 92-2497.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 14, 1993.

Decided June 28, 1993.

Nancy Hollander, Albuquerque, NM, argued, for Jeffrey Wiley.

John Wesley Hall, Jr., Little Rock, AR, argued, for Curtis Holub.

Steven M. Colloton, Asst. U.S. Atty., Cedar Rapids, IA, argued (Patrick J. Reinert, Asst. U.S. Atty., on the brief), for U.S.

Before RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge.

RICHARD S. ARNOLD, Chief Judge.

Jeffrey Wiley and Curtis Holub appeal their convictions and sentences for distribution of marijuana and other related offenses. We affirm.

I.

Wiley owned and operated a motorcycle shop in Marion, Iowa. In addition to repairing motorcycles, Wiley used the business to store and distribute marijuana. He served as a source in a drug conspiracy involving Holub and several others.

Early in 1988, federal drug-task-force agents began investigating this conspiracy. On February 11, Chris Mottinger, who was cooperating with the agents and wearing a recorder, obtained a sample of marijuana from Holub at Holub's home. A few days later, an informant named Newland recorded a conversation between himself, Kevin Meggers, and Wiley, in which they discussed Wiley's drug trafficking. Another cooperating individual, Barton Hoffman, recorded a conversation between himself and Meggers, in which Meggers described Wiley's drug activities. On February 19, Holub sold one pound of marijuana to Mottinger and an undercover agent. He also negotiated another sale with the agent of 50 pounds of marijuana, which was to occur on February 22. On that day, Holub went to Meggers's house to get the marijuana. Wiley was supposed to have delivered it to Meggers. Meggers did not have the marijuana, and the sale between the agent and Holub never took place. At this same time, Pat McMickle was purchasing 82 pounds of marijuana from Wiley at Wiley's shop. McMickle testified that Wiley sold to him rather than to Meggers because Wiley thought McMickle was a better salesman.

McMickle immediately sold the marijuana to an undercover agent and was arrested. He agreed to cooperate and identified Wiley as the person who sold him the marijuana. McMickle also told Agent Badger that Wiley had more marijuana stored in the garage. In cooperation with the federal task force, McMickle returned to Wiley's shop wearing a recorder and told Wiley that the purchasers had not shown up. Shortly thereafter, agents approached and took both McMickle and Wiley into custody.

The agents took Wiley to a motel room, told him they had seized the 82 pounds of marijuana from McMickle, and said they were interested in his cooperation. Although no one advised Wiley of his rights under Miranda, Agent Badger testified that he informed Wiley that if he agreed to cooperate and plead guilty to conspiracy to distribute marijuana, the statements he made would not be used "to formulate additional charges." Wiley claims, however, that Agent Badger said that the information he provided would not be used against him at all. At any rate, Wiley talked and also consented to a search of his business. He gave names of others to whom he was dealing drugs and a very brief sketch of their activities. ¹ In the motorcycle shop, Wiley gave them over 30 pounds of marijuana, scales, and a notebook of drug-transaction records. Wiley later decided not to cooperate.

On September 26, 1991, a grand jury indicted Holub, ² Wiley, and two others, Ronald Tank and Craig Pflughaupt. ³ Count 12 charged all four of them with conspiracy to distribute marijuana. In Counts 1, 2, 3, 5, 8, and 9, the indictment charged that Holub used a communications facility to facilitate the distribution of marijuana. Holub was also charged with two counts of distributing marijuana, Count 4 and Count 6. Count 7 charged Wiley with distribution of 82 pounds of marijuana, and Count 10 charged him with possession of an additional 30 pounds with the intent to distribute. In Count 11, the indictment charged that Wiley managed and controlled a building for the purpose of storing and distributing a controlled substance. Finally, Count 13 sought the forfeiture of Wiley's business. Holub entered a conditional plea of guilty to Counts 1, 4, 6, and 8, reserving the issue of whether the first indictment should have been dismissed with prejudice under the Speedy Trial Act. Wiley went to trial and was convicted by a jury of Counts 7, 10, 11, and 12. The Court sentenced Wiley to 188 months' imprisonment, three years' supervised release, an $83,200 fine, and a $50 special assessment on each of the four counts. The jury also found that his business was forfeitable. These appeals followed.

II.

Wiley first contends that the District Court erred in denying his motion to dismiss the indictment because the government used immunized statements against him in violation of the immunity agreement between him and the government. Wiley argues that Agent Badger told him that the information he provided would not be used against him. The government claims that Agent Badger told Wiley that the information he provided would not be used to formulate additional criminal charges against him--that is, in addition to charges about which the government already had information--but would be provided to the Court as part of the relevant conduct for sentencing. After a two-day hearing on the issue, the District Court believed the government as to the substance of the agreement and held that enough information existed before Wiley gave his statement to charge him with the four crimes charged in the indictment. The Court also held that the government did not use information provided by Wiley to formulate additional charges. We are persuaded neither that the Court's finding as to the substance of the agreement is clearly erroneous nor that its holding regarding the use of that agreement is in error.

A.

On the substance-of-the-agreement issue, Wiley argues that since agents Knott and Noonan testified that the standard procedure at that time was to grant full use immunity, the District Court's finding believing Agent Badger is clearly erroneous. We disagree. As a preliminary matter, we note that it is very difficult to prove that a court's assessment of credibility was clearly erroneous when that court, not this Court, had the opportunity to observe and listen to the witnesses. Agent Badger, not Captain Noonan or Lieutenant Knott, was responsible for conveying the terms of the cooperation agreement to Wiley. Knott was not even present when this was done, and Noonan admitted that he did not know the details of the agreement. We see no clear error. Wiley's contention that written agreements between the United States Attorney's Office and other defendants contained different terms also does not convince us that the District Court's finding with regard to Wiley's oral agreement is clearly erroneous. There was no written agreement between the government and Wiley, and certainly no overwhelming evidence that the government would treat Wiley, an arguably bigger fish, as it treated these other defendants.

B.

On the use-of-the-statement issue, Wiley points to the following "uses" of his statement in violation of the immunity agreement: the government used his statement to induce Pat McMickle to testify; the government used his statement in formulating its strategy before the grand jury and at trial, determining which witnesses to call, deciding what evidence to present to the grand jury, and shaping its theory of prosecution; the government failed to prove that its evidence was obtained independently of the statement; and the government told the grand jury that Wiley made a statement admitting his guilt and later withdrew his cooperation. We reject Wiley's contentions.

First, McMickle had already decided to cooperate and implicate Wiley before he learned that Wiley had provided information on him. In fact, McMickle gave information on Wiley before Wiley was even arrested or questioned. In any event, the proof is substantial that McMickle's motive for assisting the government was solely to reduce his own sentence. Trial Transcript 722-23. Second, after an exhaustive review of the Motion to Dismiss Hearing Transcript and the Trial Transcript, we affirm the District Court's holding that there was abundant evidence gathered by the government through independent means, precluding us from concluding that the government's use of Wiley's statement in shaping its case, if it did so, had any effect on Wiley's substantial rights.

Next, we reject Wiley's claim that the government did not prove that the trial testimony of each witness was derived from a wholly legitimate, independent source. In rejecting this claim, the District Court explained that the argument ignored the nature of the agreement. We agree. The agreement here was not that the government would not use Wiley's statement, but that the government would not use Wiley's statement to formulate additional charges against him, and it didn't. Had the government brought charges in addition to the four charges supported by the evidence on February 22, 1988, it would have had to prove that the new charges were based on evidence that was derived from a "legitimate source wholly independent of the compelled testimony." Kastigar v. United States, 406 U.S. 441, 460, 92 S.Ct. 1653, 1665, 32 L.Ed.2d 212 (1972). Here, there was no requirement that the government prove this. In any event, we agree with the District Court that the transcript of the Motion to Dismiss Hearing shows that the burden would have been met. See Motion to Dismiss Hearing Transcript 59-62, 75, 80-81, 100, 118, 194, 219.

Finally, Wiley contends that his statement was used at the grand jury when the...