U.S. v. Zarnes
| Decision Date | 01 February 1995 |
| Docket Number | Nos. 90-3024,90-3280,90-3374,91-1316 and 91-1419,90-3648,90-3139,s. 90-3024 |
| Citation | 33 F.3d 1454 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Marina ZARNES, Michael W. Nietupski, Jeffrey L. Hunter, Benny L. Battles, Michael R. Dionne, Marvin G. Bland, and Thomas J. Nietupski, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
David E. Risley (argued), Springfield, IL, for U.S.
Michael H. Vonnahmen, Springfield, IL, for Marina Zarnes.
Jay D. Stein, Stein & Stein, Chicago, IL, for Michael W. Nietupski.
Jeff Justice (argued), Hull, Campbell & Robinson, Decatur, IL, for Jeffrey L. Hunter.
James A. Pappas, Michael J. Costello (argued), Costello Law Office, Springfield, IL, for Benny L. Battles.
Monroe McWard, Taylorville, IL, for Michael R. Dionne.
James T. LaVecchia (argued), William H. Wise, Wise & Kuzas, Chicago, IL, for Marvin G. Bland.
Kevin P. Connor, Chicago, IL, for Thomas J. Nietupski.
Before BAUER, FLAUM, and KANNE, Circuit Judges.
This is a consolidated direct appeal by seven defendants convicted of drug conspiracy and firearms offenses. They raise numerous challenges to their convictions and sentences. For the reasons stated below we affirm the judgments entered by the district court.
In 1986, William Zahm began selling small amounts of the drug methamphetamine in the San Diego, California area for his friend Phillip Noble. The next year, in May 1987, Zahm's aunt, Nancy Nietupski, came to San Diego from Yuma, Arizona to visit Zahm's parents. During her stay, Nancy asked Zahm if he knew where she could buy methamphetamine. Nancy said that her ex-husband, Thomas Nietupski, a dentist in Decatur, Illinois, was interested in buying the drug if he could make a profit by reselling it. Zahm told Nancy he had a friend from whom he could get methamphetamine, and arranged a meeting between her and Noble. Nancy and Noble discussed prices, and Noble gave her a small sample of methamphetamine which she mailed to Thomas. Thomas, pleased with the quality of the sample, flew to San Diego in June 1987 to purchase half of a pound of methamphetamine. At Nancy's direction, Zahm picked up the methamphetamine from Noble and gave it to Thomas, who paid Zahm $4,500 in cash.
In October 1987, Nancy Nietupski returned to San Diego and asked Zahm about buying another half of a pound of methamphetamine. Zahm told Nancy that he had a new source for methamphetamine, a woman named Marina Zarnes, who also lived in California. Nancy gave Zahm $70 to buy a sample of methamphetamine from Zarnes. Zahm informed Nancy that Zarnes would sell her half of a pound of methamphetamine for $4,500. Nancy told Zahm that she had contacted Thomas Nietupski, and that Zahm should tell Zarnes she and Thomas wanted to purchase a half pound of methamphetamine. A short time later, Thomas flew to California and gave $4,500 to Zahm, who bought the methamphetamine from Zarnes on Nancy and Thomas's behalf.
In November 1987, Zahm became involved with two men he knew as "Kenny" and "Dusty" who needed financing to start a methamphetamine laboratory near San Diego. Zahm called Nancy Nietupski and asked her to invest $1,000 in the lab in return for half of a pound of methamphetamine. Nancy wired Zahm $800. Nancy and her son Michael Nietupski thereafter drove from Arizona to San Diego where Zahm introduced them to Kenny and Dusty. Michael stayed at Kenny's house and contributed an additional $1,100 for the lab, which was unsuccessful.
In December 1987, Nancy Nietupski and Thomas Nietupski went to California and offered Zahm $1,000 to arrange an introductory meeting with Zarnes. Zahm obliged and took Nancy and Thomas to meet Zarnes. Zarnes had no methamphetamine available that day, but she did sell Nancy and Thomas two kilograms of cocaine and five pounds of marijuana for $27,000. Thomas expressed interest in buying methamphetamine from Zarnes in the future. Thomas said that Nancy would make all the purchases, and that Zarnes should deal directly with Nancy. The women exchanged phone numbers. The next day, the Nietupskis told Zahm that they were able to obtain a pound of methamphetamine from Zarnes. Zahm asked Thomas about his $1,000 commission, but Thomas refused to pay, citing his investment loss in Kenny's and Dusty's lab.
In April 1988, Nancy Nietupski contacted a friend of Michael Nietupski's named Fred Hadowsky, who lived near Pana, Illinois. Nancy told Hadowsky that she needed his help in developing a street-level network for distributing methamphetamine in the Pana, Taylorville, Decatur, and Springfield, Illinois areas, and that Michael said Hadowsky could be trusted. Hadowsky agreed to distribute one-eighth of an ounce quantities for Nancy that she "fronted" (sold on consignment). This arrangement lasted until November 1988 when Hadowsky got behind in his drug debts. Hadowsky recalled that during their transactions Nancy kept a gun inside her purse to prevent anyone from "ripping her off." (Tr. 633).
In May 1988, Nancy Nietupski went on a "drug run" to the west coast. (Tr. 155). Before leaving, Nancy told Cindylou Matthews Anthony ("Matthews"), Violet Blankenship, a drug distributor for her sister, and Bob Blankenship, her nephew, that Nancy only had $15,000 to make her purchases, and that Nancy needed contributions from investors. Matthews, who learned from Violet that Nancy was "the lady in charge" of the methamphetamine business, contributed $1,500. (Tr. 155). In late May or early June 1988, Nancy returned from the west coast with methamphetamine. In partial repayment of Matthews' investment, Nancy gave half of an ounce of methamphetamine to Matthews, who sold about one-eighth to one-fourth of an ounce to Michael Dionne, one of Matthews' main customers. A week later, Nancy fully repaid Matthews for her investment by giving Matthews another half of an ounce of methamphetamine. Nancy thereafter fronted two to four ounces of methamphetamine per week to Matthews, who became Nancy's primary distributor.
In mid-July 1988, Matthews met Nancy Nietupski's son Michael Nietupski. Michael told Matthews that he came from Arizona to Illinois to kill her because Violet Blankenship suspected Matthews was "singing like a bird." (Tr. 168). Michael displayed a revolver as he spoke to Matthews. Michael concluded after speaking with Matthews that Violet's suspicions were baseless. At Matthews' request, Michael obtained about two pounds of methamphetamine. Of this amount, Michael fronted Matthews one-fourth to one-half of a pound, and told Matthews to pay Nancy for this drug delivery.
Matthews saw Michael Nietupski again later that month. Nancy Nietupski asked Michael to exert control over Bob Blankenship, who threatened to harm Matthews if she continued to conduct business with Nancy. Michael arrived in Pana with a gun and several rounds of ammunition. A few days later, Michael told Matthews that he was unable to find Bob, but that he shot at a target range near the Blankenship farmhouse "as a calling card" to make sure Bob knew that he was in town. (Tr. 174).
Towards the end of July 1988, Nancy, Matthews, Matthews' young son, and a man named "Roach" drove to California to see Zarnes. In the course of the drive, Matthews learned from Nancy that Zarnes was her source for drugs, that Nancy had brought money to buy drugs, and that Nancy had arranged for Zarnes to have the drugs ready. When the foursome arrived at Zarnes' trailer, Nancy went inside and purchased half of a pound of methamphetamine and two ounces of cocaine. As Nancy and Zarnes were leaving the trailer, Matthews overheard Zarnes tell Nancy that she was in enough trouble already and did not want to meet anyone new.
From August to mid-September 1988, Matthews distributed greater amounts of methamphetamine (one-quarter to one-half of a pound per week) for Nancy Nietupski, all on a front for $1,600 per ounce. Concomitantly, the amount of methamphetamine Matthews sold to Dionne grew. Matthews fronted one- to two-ounce quantities per week to Dionne, who resold the drugs to Michael Day, Michael Smith, and William Worker, among others. Many of Matthews' deals with Dionne took place at Dionne's apartment, where Matthews saw a large number of handguns, a "miniature machine gun," knives, and "SWAT clothes." (Tr. 224-25). Dionne told Matthews that if she was ever arrested, he would come in like a SWAT team and rescue her from jail. According to customers Day and Smith, Dionne was constantly armed during drug transactions.
In August 1988, Nancy Nietupski told Matthews that she had several other distributors working for her, and that two of them, Benny Battles and Jeffrey Hunter, were particularly trustworthy. While these two men sold less than Matthews, they were "just as valuable" to Nancy. (Tr. 210). Nancy told Matthews that Battles was "very close to her," that Battles could be counted on in an emergency, and that Battles was to be contacted in the event that Nancy was unavailable. (Tr. 216). Nancy also told Matthews that Battles distributed about half as much methamphetamine as Matthews did, which would have amounted to one-eighth to one-quarter of a pound of methamphetamine per week. Matthews frequently saw Battles at Nancy's house. Battles would ask Matthews if Nancy had drugs, or if Matthews knew when Nancy would be receiving drugs. Matthews once overheard Battles tell Nancy that he needed half of a pound of methamphetamine for a motorcycle club. Matthews herself bought drugs from Battles on several occasions.
Matthews also saw Hunter at Nancy Nietupski's house. Nancy told Matthews that Hunter would pick up drugs and drop off money for her. Matthews recalled that Nancy sometimes asked Hunter if he needed more methamphetamine and how his sales were going. Nancy once asked Matthews to tell Hunter and Battles that she...
To continue reading
Request your trial
-
U.S. v. Jarrett
...say, and there was no longer a conspiracy of which they could have been acting "in furtherance." But see, e.g., United States v. Zarnes, 33 F.3d 1454, 1468 (7th Cir.1994) (stating that the defendant's incarceration did not establish her withdrawal from a conspiracy), cert. denied, 515 U.S. ......
-
United States v. Daugerdas
...We have held that “[t]he Sixth Amendment right to an impartial jury, like any constitutional right, may be waived.” United States v. Zarnes, 33 F.3d 1454, 1472 (7th Cir.1994); accord United States v. Joshi, 896 F.2d 1303, 1307 (11th Cir.1990). Brazelton's on-the-record decision to pass up n......
-
Rodriguez v. U.S.
...unprofessional errors the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. See also United States v. Zarnes, 33 F.3d 1454, 1473 (7th Cir.1994). In terms of the performance prong, "[j]udicial scrutiny of counsel's performance must be highly deferential." Stric......
-
U.S. v. Lane
...other circumstances surrounding the crime, is not evidence of "other acts" within the meaning of Rule 404(b). See United States v. Zarnes, 33 F.3d 1454, 1469 (7th Cir.1994) (evidence of drug transactions completed before conspiracy began was intricately related to conspiracy case because it......