United States v. Benedict

• Decision Date: 01 May 2017
• Docket Number: No. 14-3412, No. 15-1014,14-3412
• Citation: 855 F.3d 880
• Parties: UNITED STATES of America, Plaintiff-Appellee v. Derek Edward BENEDICT, Defendant-Appellant United States of America, Plaintiff-Appellee v. Lyle Robert Carpenter, Defendant-Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

855 F.3d 880

UNITED STATES of America, Plaintiff-Appellee

v.Derek Edward BENEDICT, Defendant-Appellant

United States of America, Plaintiff-Appellee

v.Lyle Robert Carpenter, Defendant-Appellant

No. 14-3412

No. 15-1014

United States Court of Appeals, Eighth Circuit.

Submitted: March 29, 2017

Filed: May 1, 2017

Rehearing and Rehearing En Banc Denied June 8, 2017

Counsel who represented the appellant Benedict was Tom Dunnwald of Minneapolis. Counsel who represented appellant Carpenter was Mark D. Nyvold of Fridley, MN.

Counsel who represented the appellee was James Lackner, AUSA, of Saint Paul, MN.

Before MURPHY, COLLOTON, and BENTON, Circuit Judges.

MURPHY, Circuit Judge.

Appellants Derek Benedict and Lyle Carpenter were convicted by a jury of conspiracy and burglarizing various drug stores in Minnesota and Iowa where they stole pharmaceutical products and cash from safes, registers, and ATMs. They now appeal their convictions and their sentences imposed by the district court.¹ We affirm.

I.

A.

From 2009 to 2012, Derek Benedict and Lyle Carpenter were involved in a series of commercial burglaries, conspiring at various times with six other people: Jason Mussehl, Julia Julien, Tim Kielb, Cher Mayotte, Jennifer Stanley, and Jonathan Quast. Jason Mussehl was involved in burglaries for over 25 years, which were his primary source of income. He knew Benedict from elementary school and met Carpenter in 2009. Mussehl's half brother was Jonathan Quast, and Mussehl dated both Julia Julien and Jennifer Stanley. Additional members of the conspiracy were Tim Kielb and his girlfriend, Cher Mayotte.

The group's burglaries focused on the theft of money and pharmaceuticals from businesses they investigated as potential targets, where they would first look for motion sensors and locate any alarm systems. They would then return at night to break into a targeted building, often cutting a hole in the roof near an alarm which they proceeded to disarm. At other times they entered a building by knocking down an exterior wall or by prying open the front door and disabling any alarm before a signal could be sent. Once an alarm was disabled, the burglars would leave the location for a half hour or more to ensure that they had not been detected. One of the group was tasked with waiting outside in the vicinity of a targeted business to watch for any law enforcement personnel. After being satisfied that they had not been detected, the burglars would reenter the store, drill open safes and ATMs, and carry away their contents. The burglars working inside a store would communicate by two way radio with their confederate remaining outside. Carpenter specialized in drilling into safes and ATM machines, a task at which he excelled. Benedict served as driver and kept watch outside for any approaching police.

On October 4, 2009, Carpenter, Mussehl, Tim Kielb and Jennifer Stanley burglarized a Walgreens drug store in Minneapolis and transported its ATM to the house of a friend. After breaking into the machine and obtaining its contents, the burglars disposed of the machine in the Mississippi River. Later that month, Benedict, Carpenter, Mussehl, and Stanley burglarized a Walgreens store in Robbinsdale, Minnesota. Then the same four burglars broke into a Golden Valley Walgreens in November and a South Minneapolis Walgreens in December.

Carpenter went to prison after he was convicted of a different crime, but Mussehl continued to burglarize Walgreens stores. Benedict wanted to participate in these burglaries, but Mussehl turned him down. When Carpenter was released from prison in 2012, he again joined in burglaries with Benedict and Mussehl. On July 15, 2012, Benedict and Carpenter, together with Mussehl, Kielb, Cher Mayotte, and Julia Julien, burglarized a pharmacy in Bloomington, Minnesota (Bloomington Drug). The burglars took both money and pharmaceuticals. Carpenter, Mussehl, Kielb, and Mayotte next committed a burglary at a gas station in Prior Lake, Minnesota on August 19, 2012. They removed an ATM belonging to South Metro Federal Credit Union and transported it in Mussehl's truck to a friend's garage, where they broke into it. Four days later, Carpenter, Mussehl, Kielb and Quast burglarized a Walgreens store in Circle Pines, Minnesota.

On September 9, 2012, Benedict, Carpenter, Mussehl and Julien burglarized a Walgreens store in Des Moines, Iowa. Benedict again kept watch outside the store, and Carpenter and Mussehl entered the building. Later that day, Benedict bought an Infiniti using his share of the proceeds from the burglary.

By early 2013, coconspirator Tim Kielb had been arrested and began to cooperate with law enforcement agents. He used a recording device to capture several discussions with Benedict and Carpenter about burglaries. In February of that year, police found a glove at the site of an Aldi Foods store in Blaine, Minnesota, which had been burglarized by entering through the roof. A DNA swab of the Aldi glove linked to a predominate profile that matched to Lyle Carpenter. On June 9, 2013, Carpenter was arrested while burglarizing a Super America gas station. He was apprehended along with a crowbar, sledgehammer, mask and two way radio.

B.

Benedict and Carpenter were jointly charged with conspiracy to commit bank burglary, bank larceny, and interstate transportation of stolen property, conspiracy to steal controlled substances, bank larceny, burglary involving controlled substances, and interstate transportation of stolen property. The ten count indictment also charged Carpenter on additional substantive charges of bank burglary, bank larceny, credit union burglary, and burglary involving controlled substances. Benedict and Carpenter were the only two defendants to proceed to trial; each of the other coconspirators pled guilty. In addition to testimony from numerous law enforcement officials and others, the government called coconspirators Mussehl, Julien, Kielb, Stanley, and Mayotte to testify and describe their own roles in the conspiracy, as well those of Benedict and Carpenter. Coconspirator Jonathan Quast was additionally called to testify about the burglary he committed with Carpenter in Circle Pines, Minnesota.

Benedict moved to sever, but severance was denied. He also sought to have an expert witness testify to the subject of the untrustworthiness of coconspirator testimony, but his request was untimely and rejected by the district court. Both men were convicted of all charged crimes. At sentencing the district court concluded that both Benedict and Carpenter were career offenders. They were sentenced accordingly: Carpenter to 210 months with $272,561 ordered in restitution, and Benedict to 150 months with $199,007 ordered in restitution. The two defendants now appeal their convictions and sentences.

II.

Benedict makes three claims relevant only to his case: that he was improperly denied a severance, that he should have been permitted to present expert testimony, and that the evidence was insufficient to convict him of the charged offenses.

Benedict moved for a severance. Federal law favors joint trial for individuals charged in the same indictment, and there is a "strong" presumption against severing properly joined cases. United States v. Delpit , 94 F.3d 1134, 1143 (8th Cir. 1996). A denial of a motion to sever is only reversed when a defendant has shown an abuse of discretion resulting in severe prejudice. United States v. Young , 701 F.3d 1235, 1238 (8th Cir. 2012). To prevail on such a claim a defendant must show prejudice to a specific trial right or that a joint trial would not enable the jury to make "a reliable judgment about guilt or innocence." United States v. Dierling , 131 F.3d 722, 734 (8th Cir. 1997) (internal quotation marks omitted). Varying strength in the evidence against each defendant does not require a severance. Id.

Benedict and Carpenter were indicted together for their participation in the same conspiracy, and their cases were properly joined. SeeDelpit , 94 F.3d at 1143. Benedict argues however that some of the evidence focused solely on Carpenter, including a video of Carpenter being arrested while burglarizing a Super America store and evidence about a glove matching Carpenter's DNA profile which had been found outside a burglarized Aldi Foods store. This evidence is not sufficient to show that the jury could not have made a reliable judgment about Benedict's guilt or innocence because of the district court's limiting jury instructions that each defendant "is entitled to have his case decided solely on the evidence which applies to him," and that the jury "must give separate consideration to the evidence about each individual Defendant." This trial was not the "unusual case" in which the efficiency of joinder would have been outweighed by difficulty for the jury to analyze separately the evidence against each individual defendant. See United States v. Martin , 777 F.3d 984, 995 (8th Cir. 2015).

Benedict next claims that the district court erred by rejecting his request to permit expert testimony from Dr. Jeffrey Neuschatz. While Benedict contends this amounted to the denial of his right to defend himself and therefore is subject to de novo review, a court's exclusion of expert testimony is appropriately reviewed for abuse of discretion. United States v. Martin , 391 F.3d 949, 954 (8th Cir. 2004). The district court's decision was based on Benedict's failure to make disclosures required under Federal Rule of Criminal Procedure 16(b)(1)(C). That rule requires a defendant, upon the government's request, to provide a summary of proposed testimony describing "the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications." Fed. R. Crim. P. 16(b)(1)(C). Five days before trial was to begin, Benedict first indicated his intention to call Dr. Neuschatz. The district court permitted the disclosures to be made at that time, but they were not. Then on December 11, the court prohibited its...