U.S. v. Ziesman
| Decision Date | 23 June 2005 |
| Docket Number | No. 04-2042.,04-2042. |
| Citation | 409 F.3d 941 |
| Parties | UNITED STATES of America, Appellee, v. Travis ZIESMAN, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Alfredo Parrish, argued, Des Moines, Iowa, for appellant.
Charles J. Williams, argued, Cedar Rapids, Iowa, for appellee.
Before COLLOTON, LAY, and GRUENDER, Circuit Judges.
Travis Ziesman appeals his conviction and sentence for manufacturing methamphetamine and for making a false statement to a federal agent. Ziesman contends that there was insufficient evidence to support the jury verdict and that the district court1 erred in several of its rulings. In addition, Ziesman raises for the first time on appeal the argument that his sentence, resulting from the application of the United States Sentencing Guidelines in a mandatory fashion and based in part on judge-found facts, is unconstitutional. For the reasons discussed below, we affirm the conviction and sentence.
In July 2002, Travis Ziesman was arrested by Iowa law enforcement authorities as a result of his participation in a methamphetamine distribution ring centered around supplier Vincent Deherrerea. Soon after Ziesman's arrest, Iowa state authorities asked for assistance from federal agencies in investigating the Deherrerea group. Ziesman signed a proffer agreement as a prelude to cooperation with federal authorities. The proffer agreement expressly provided that any information given by Ziesman could be used against him in a subsequent prosecution for acts committed by Ziesman after the date of the proffer agreement. As a result of his cooperation, the federal government made a favorable recommendation to the state prosecutor, and Ziesman received only a suspended sentence for his state drug charges.
From August 2002 through May 2003, Agent Mike Wempen of the Bureau of Alcohol, Tobacco and Firearms and Ziesman's probation officer, Joyce Lien, received occasional tips that Ziesman was using and manufacturing methamphetamine. When questioned, Ziesman alleged that former friends, angry at Ziesman for cooperating with federal agents, were starting rumors to discredit him. Ziesman also alleged that he was living with his parents and that trespassers were using his unoccupied farm to manufacture methamphetamine without his permission. Although federal agents suspected the information about Ziesman's renewed drug involvement might be accurate, they did not believe they had probable cause to arrest Ziesman.
On May 23, 2003, as part of his cooperation with federal authorities, Ziesman testified in a grand jury proceeding against Deherrerea group-member Shawn Owen. As part of his testimony, Ziesman described his own role in the Deherrerea group and stated under oath that he had been drug-free since his arrest in July 2002.
Finally, on May 28, 2003, federal agents received a tip sufficient to establish probable cause that Ziesman was manufacturing methamphetamine and obtained a search warrant for his farmhouse. The search revealed typical methamphetamine laboratory items such as peeled batteries, starting fluid cans, empty pseudoephedrine packets, coffee filters and a blender coated with pseudoephedrine residue, and surveillance cameras. The search also revealed 2.59 grams of methamphetamine and a methamphetamine pipe.
One of Ziesman's girlfriends, Jamie Olthoff, was present at the farmhouse during the search and gave Agent Wempen information about Ziesman's methamphetamine manufacturing. On June 6, 2003, just before her grand jury testimony, Olthoff informed Agent Wempen that she was disavowing what she had told him on the day of the search. Agent Wempen and Assistant United States Attorney (AUSA) C.J. Williams confronted Olthoff about her sudden change of story, allegedly employing raised voices and profane language. Nevertheless, Olthoff testified before the grand jury that what she had told Agent Wempen on the day of the search was false. That grand jury eventually returned a first superseding indictment for one count of manufacturing methamphetamine, plus one count of making a false statement to a federal agent and one count of perjury before a grand jury based on Ziesman's testimony that he was drug-free.
Ziesman moved to dismiss the first superseding indictment, based in part on alleged governmental intimidation of Olthoff before her grand jury testimony. To avoid any appearance of impropriety, the Government presented the case anew to a different grand jury. The new grand jury, however, was the same one before which Ziesman had testified against Shawn Owen on May 23, 2003. The Government dropped the perjury charge arising from Ziesman's May 23 testimony to avoid potential grand jury bias. This grand jury returned a second superseding indictment for one count of manufacturing methamphetamine, one count of making a false statement to a federal agent and one count of providing a location to manufacture methamphetamine.
On the eve of trial, the parties reached an agreement to drop the count for providing a location to manufacture methamphetamine. The jury returned a verdict of guilty on the two remaining counts, and Ziesman was sentenced to a 300-month prison term. On appeal, Ziesman contends that there was insufficient evidence to support the jury verdict and that the district court erred in denying Ziesman's motion to dismiss the second superseding indictment. He also alleges that the district court erred in not instructing the jury on a lesser included offense, in the admission and exclusion of certain evidence, and in denying his motion for a mistrial based on prosecutorial misconduct. In addition, Ziesman argues that the district court's application of the United States Sentencing Guidelines was erroneous and that district court should have reviewed the government's refusal to make a substantial assistance motion. Finally, Ziesman raises for the first time on appeal the argument that he was unconstitutionally sentenced using judge-found facts under a mandatory Guidelines regime.
We review the sufficiency of the evidence to sustain a conviction de novo. United States v. Fitz, 317 F.3d 878, 881 (8th Cir.2003). "We will uphold a jury verdict if substantial evidence supports it." United States v. Cruz, 285 F.3d 692, 697 (8th Cir.2002). We view the evidence in the light most favorable to the verdict and accept as established all reasonable inferences supporting the verdict. Fitz, 317 F.3d at 881.
The evidence against Ziesman included the testimony of ten witnesses who variously saw him making and using methamphetamine, delivered methamphetamine laboratory supplies to him, and sold methamphetamine for him. Ziesman argues that no reasonable jury could find those ten witnesses credible because they were drug users involved in criminal enterprises who had something to gain from their testimony. However, it is well established that "[t]he issue of witness credibility `is virtually unreviewable on appeal because it is preeminently the job of the finder of fact.'" United States v. Beaman, 361 F.3d 1061, 1064 (8th Cir.2004) (quoting United States v. Morris, 327 F.3d 760, 761 (8th Cir.2003)). Ziesman's argument also ignores the discovery of the methamphetamine lab at his farmhouse and corroborating evidence indicating that he occupied the farmhouse during the relevant period. We conclude that there was sufficient evidence to support the jury verdict.
We review de novo a district court's order denying a motion to dismiss an indictment. United States v. Two Eagle, 318 F.3d 785, 793 (8th Cir.2003). "A grand jury indictment will only be dismissed upon a showing of actual prejudice to the accused." Id. Dismissal of an indictment based on grand jury bias is an extreme remedy, and the party seeking relief carries a heavy burden. Id.
Ziesman argues that the grand jury which returned the second superseding indictment was biased against him because it had previously seen him testify in the Owen proceeding. In particular, the same grand jury had already heard Ziesman testify to his previous involvement in the Deherrerea group, his resulting arrest and guilty plea on state charges, and his cooperation with federal authorities. However, all of this information was also admissible against Ziesman in the new grand jury proceeding because Ziesman's proffer agreement specifically permitted the Government to use the information he provided to prosecute him for crimes committed after the date of the agreement. See United States v. Luloff, 15 F.3d 763, 766 (8th Cir.1994).2 Because the Government was entitled to present this evidence to the grand jury in any event, Ziesman cannot establish the actual prejudice necessary for him to obtain relief.
Ziesman also contends that the grand jury was improperly biased against him as a result of his earlier false testimony before them. If the proposed charges against Ziesman were true, then Ziesman had lied to the grand jury at the Owen proceeding when he denied any involvement with drugs since his previous arrest. Ziesman's argument is foreclosed by United States v. Brimberry, 779 F.2d 1339 (8th Cir.1985). Brimberry perjured himself while testifying against someone else in a grand jury proceeding. The same grand jury later returned an indictment against Brimberry for that perjury. Like Ziesman, Brimberry contended that the grand jury was biased against him because his lie had impeded their earlier proceeding. This Court refused to dismiss the indictment against Brimberry because "[i]t cannot be assumed that grand jurors will violate their oath `to indict no one because of prejudice' solely because an individual has lied to them on a matter material to the...
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