U.S. v. Zidell

• Decision Date: 21 March 2003
• Docket Number: No. 00-6787.,00-6787.
• Citation: 323 F.3d 412
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bobby Marshall ZIDELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

323 F.3d 412

UNITED STATES of America, Plaintiff-Appellee, v. Bobby Marshall ZIDELL, Defendant-Appellant.

No. 00-6787.

United States Court of Appeals, Sixth Circuit.

Argued: August 7, 2002.

Decided and Filed: March 21, 2003.

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Thomas L. Parker (argued and briefed), Asst. U.S. Attorney, Memphis, TN, for Plaintiff-Appellee.

Thomas Edwards Hansom (argued and briefed), Law Offices of Thomas E. Hansom, Memphis, TN, for Defendant-Appellant.

Before: MOORE and GILMAN, Circuit Judges; ROSEN, District Judge.^*

ROSEN, D. J., announced the judgment of the court and delivered an opinion, in which MOORE and GILMAN, JJ., concurred except as to Part III.C.2. As to Part III.C.2., MOORE and GILMAN, JJ concurred in the result and reasoning of that Part only to the extent that it relies on the doctrine of harmless error to uphold the defendant's conviction and sentence. MOORE, J. (pp. 434-435), delivered a separate concurring opinion, in which GILMAN, J., joined.

OPINION

ROSEN, District Judge.

I. INTRODUCTION

Defendant/Appellant Bobby Marshall Zidell appeals his conviction and sentence for conspiracy to possess with intent to distribute methamphetamine and attempt to possess with intent to distribute methamphetamine, both in violation of 21 U.S.C. § 846. Following a trial, the jury returned guilty verdicts against Defendant on both of these charges. On December 8, 2000, Defendant was sentenced to a 292-month term of imprisonment and 5 years of supervised release. This timely appeal followed.

Defendant has identified four issues on appeal. First, he argues that venue was improperly placed in the Western District of Tennessee on the attempt charge set forth in Count Two of the indictment because, in Defendant's view, the Government's evidence showed that all of the criminal conduct relating to this charge occurred in Texas. Next, Defendant complains that the Government lacked any evidentiary basis for questioning him during cross-examination at trial regarding his alleged attempt to encourage a witness to lie on his behalf.

Defendant's remaining two challenges arise from the Supreme Court's ruling in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), a decision handed down just days before Defendant's trial. First, Defendant contends that the District Court's instructions to the jury regarding drug quantities failed to comport with Apprendi, where the jury was asked to make drug quantity findings, but was told that these quantities were not "elements" of the charged drug offenses, and where the instructions as to Count Two referenced a quantity different from (and lower than) the drug amount set forth in the indictment. Finally, Defendant argues that the District Court erred in calculating and imposing a 292-month sentence based upon an amount of methamphetamine in excess of the quantities charged in the indictment and established through the jury's verdict.

For the reasons stated below, we affirm Defendant's conviction and sentence.

II. FACTUAL AND PROCEDURAL BACKGROUND

For purposes of this appeal, only a limited portion of the facts and evidence presented at trial need be recounted here. Count One of the superseding indictment in this case charged Defendant Bobby Marshall Zidell and two co-defendants, Bobby Smith and Kevin Cranford, with conspiring in the period from March, 1998 to April 8, 1999 to possess with intent to distribute "an amount in excess of 1 kilogram of a mixture and substance containing a detectable amount of methamphetamine." (J.A. at 24.) Count Two charged that, from April 1 to April 8, 1999, Defendant and Cranford attempted to possess with intent to distribute "approximately 1 pound of a mixture or substance containing a detectable amount of methamphetamine." (J.A. at 25.) Co-defendants Smith and Cranford both entered guilty pleas as to Count One, and then testified at Defendant's trial.

A. The Government's Proofs at Trial

The Government's case rested principally upon the testimony of co-defendants Smith and Cranford and a third individual, Robert Rook, who was identified as a co-conspirator in the indictment but not charged in exchange for his cooperation. Through these witnesses, the Government sought to establish that Defendant, a resident of Dallas, Texas, had supplied methamphetamine to Smith, a native of Memphis, Tennessee who had moved to Dallas, and Cranford and Rook, who still lived in Memphis. Smith testified that he began to supply methamphetamine to Cranford in March of 1998, and that his sources of supply in Dallas were Defendant and "a couple of different Mexicans." (J.A. at 227-30.) Smith estimated that he served as the middleman between Defendant and Cranford "about three or four times," and that each transaction with Defendant involved "2 to 4 pounds" of methamphetamine. (J.A. at 230.)

Smith testified that he began to fall behind in his payments to Defendant, and that, as a solution to this problem, he proposed in October of 1998 that Defendant and Cranford deal directly with each other. Smith introduced Defendant to Cranford at a casino in Tunica, Mississippi, and Cranford testified that Defendant supplied him with four pounds of methamphetamine on that occasion in the fall of 1998. Cranford further testified that he paid Defendant a few thousand dollars at the time of their meeting, and that he sent the balance of the $60,000 payment afterward via Federal Express.

Following this initial meeting, Cranford stated that he had several telephone conversations with Defendant over the next few weeks regarding the payment still owed by Cranford and arrangements for the next shipment. According to Cranford and Robert Rook, this next transaction occurred in late October or early November of 1998, when Defendant met with the two men at a Waffle House in Memphis. Cranford and Rook both testified that, upon arriving at the restaurant, Defendant instructed Rook to retrieve some packages from his car and place them into Cranford's vehicle. Upon returning to Cranford's apartment, Cranford and Rook discovered that Defendant had provided only nine pounds of methamphetamine, and not the twelve pounds that Cranford had anticipated. Cranford also testified that he was dissatisfied with the quality of the drugs supplied by Defendant.

Because of this latter problem, Cranford stated that he was only able to sell about two of the nine pounds of methamphetamine provided by Defendant. As for the remaining seven pounds, Cranford and Rook delivered them to Smith in Little Rock, Arkansas in December of 1998, with the understanding that Smith would return these drugs to Defendant, and that Cranford would then settle up with Defendant as to any amounts owed for the two pounds he had retained. Smith, however, never returned the seven pounds of methamphetamine to Defendant. Rather, Smith testified that he became nervous and threw the drugs in a dumpster. Cranford, on the other hand, stated his belief that Smith repackaged these drugs and included them in a larger shipment that Smith delivered to Cranford a week or so later.

Cranford testified that he next heard from Defendant at the end of January, 1999, when Defendant called to demand his money for the Waffle House transaction. Cranford explained to Defendant what had happened, and the two men purportedly agreed, over the course of several subsequent telephone conversations, to resume their direct relationship without Smith's involvement. According to Cranford, Defendant sent him a quarter ounce of "good quality" methamphetamine via Federal Express as a "sample of what [Defendant] could do," (J.A. at 177-78), and Cranford and Rook then flew to Dallas on April 2, 1999 to obtain additional methamphetamine from Defendant. Cranford stated that Defendant was only able to provide four ounces of drugs on this trip, which Cranford quickly sold upon his return to Memphis.

A few days later, on April 7, 1999, Cranford and Rook again flew down to Dallas to obtain additional methamphetamine from Defendant. Rook and Cranford both testified that they drove directly to Defendant's home upon their arrival in Dallas that evening, and that they were given approximately a pound of methamphetamine. They placed these drugs in a rental car, and began driving back to Memphis. Cranford and Rook were stopped by the police in Hopkins County, Texas, as they traveled along Interstate 30 between Dallas and Little Rock. Upon discovering a gun in the back of the car, the officers placed Rook and Cranford under arrest, and apparently discovered the package of methamphetamine during a subsequent inventory search of the vehicle.

Following his arrest, Cranford initially denied any knowledge of the methamphetamine found in the car. He subsequently agreed to cooperate with law enforcement authorities, however, by participating in two recorded telephone conversations with Defendant. These tapes were played at trial, and Cranford also was asked to explain their contents. Cranford testified that he and Defendant discussed the debt he still owed for the two pounds of methamphetamine he had retained from the Waffle House transaction, and that Defendant indicated a willingness to arrange some additional purchases upon receiving at least some payment toward this debt.

B. The Defense at Trial

Defendant called two witnesses at trial, and also testified on his own behalf. In his testimony, Defendant flatly denied that he had ever conspired with Cranford, Smith, or Rook to buy or sell methamphetamine. Although Defendant conceded that he had met with Cranford on the evening of April 7, 1999, he stated that the two had discussed the "mortgage brokerage business" on this occasion, and not any transactions involving methamphetamine. (J.A. at 270.)

One of the issues on appeal concerns a portion of the Government's cross-examination of Defendant at trial. The Government first established that a woman named Dita Ghaemi...