UNITED STATES of America, Plaintiff–Appellee v. Derek Edward BENEDICT, Defendant–Appellant; United States of America, Plaintiff–Appellee v. Lyle Robert Carpenter, Defendant–Appellant.
Nos. 14-3412, 15-1014.
United States Court of Appeals, Eighth Circuit.
Submitted: Oct. 20, 2015. Filed: March 2, 2016.
815 F.3d 377
AFFIRMED.
Tom Dunnwald, argued, Minneapolis, MN, for Derek Benedict.
Mark D. Nyvold, argued, Fridley, MN, for Lyle Carpenter.
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
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 Julia 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, conspir-
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 same conspiracy, and their cases were properly joined. See Delpit, 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).
The district court also concluded that the subject of the proffered expert testimony was improper. Dr. Neuschatz, the proffered expert, had authored an article entitled The Effects of Accomplice Witnesses and Jailhouse Informants on Jury Decision Making, 32 Law & Hum. Behav. 137 (2008). His article warned that mock jurors provide “undue weight to confession evidence when rendering guilt decisions.” Id. at 138. In his affidavit filed in the district court, Dr. Neuschatz claimed that “[w]ithout expert assistance, jurors’ abilities to assess the veracity of a witness’s testimony are extremely limited.” Benedict argues on appeal that the testimony would have been proper and necessary to demonstrate the unconscious impact of live testimony and “the substantial bias of testimonial evidence from any source on a listener.” It is however “plain error to admit testimony that is a thinly veiled comment on a witness’ credibility.” Nichols v. Am. Nat‘l Ins. Co., 154 F.3d 875, 884 (8th Cir. 1998). Moreover, “[w]eighing evidence and determining credibility are tasks exclusive to the jury.” Id. at 883. The district court did not abuse its discretion by declining to admit Dr. Neuschatz’s testimony.
Benedict also challenges the sufficiency of the evidence. He argues that there was not corroborated evidence to show he acted with a purpose in common with the other members of the conspiracy. We review such a challenge de novo, examining the evidence in the light most favorable to the government, resolving evidentiary conflicts in the government’s favor, and granting all reasonable inferences which support the verdict. United States v. Casteel, 717 F.3d 635, 644 (8th Cir. 2013). Benedict’s coconspirators testified that he had participated in a conspiracy to commit burglary and the other charged offenses. The testimony of coconspirators alone is sufficient to support a conviction for conspiracy unless it is “incredible or insubstantial on its face.” United States v. Thompson, 533 F.3d 964, 970 (8th Cir. 2008) (internal quotation marks omitted). The coconspirator testimony introduced in this case was credible and supported by other evidence. Contrary
Benedict also relies upon Mussehl’s testimony that for a period of time Benedict unsuccessfully sought to participate in burglaries with Mussehl. Benedict claims this shows he was not part of a single conspiracy. Mussehl’s full testimony, however, shows that Benedict engaged in numerous burglaries with the group of coconspirators. Benedict’s claim that the evidence does not show his participation in a conspiracy is flatly contradicted by the trial record. We conclude that the evidence was sufficient to sustain his convictions.
III.
Carpenter makes one claim relevant only to his case, arguing that restitution was wrongly imposed under the Mandatory Victim Restitution Act (MVRA). We review such questions of law de novo. United States v. Senty-Haugen, 449 F.3d 862, 865 (8th Cir. 2006). Carpenter maintains that corporations are not victims under the Mandatory Victims Restitution Act because they are not “persons” within the meaning of the statute. The MVRA requires that a district court shall order a defendant to make restitution in cases “in which an identifiable victim or victims has suffered a physical injury or pecuniary loss.”
The government adds that the context within the MVRA itself indicates that corporations are eligible to be considered victims within the meaning of the act. Section
Carpenter claims that the district court erred in ordering $53,729 in restitution to the targeted stores for sums of money taken from safes and cash registers during the burglaries, as opposed to money taken from ATMs. He claims these sums represent money taken during the commission of state law crimes for which restitution is not appropriate. We look to the “scope of the indictment to determine
Even if the conspiracy charged in the indictment had not included the stolen property charge, the restitution order for payments to the burglarized stores was proper under the plain language of the MVRA. That act requires that restitution be made to every victim.
a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered including, in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant’s criminal conduct in the course of the scheme, conspiracy, or pattern.
IV.
Both defendants challenge an evidentiary stipulation which established jurisdictional elements of the charged offenses, including the stipulation that certain Walgreens stores which had been burglarized were used in part as a bank, that certain ATMs were owned by a bank insured by the FDIC or by a credit union insured by the National Credit Union Administration, that Bloomington Drug was registered with the FDA, and that the stolen drugs contained FDA controlled substances. Benedict and Carpenter now claim they did not knowingly and voluntarily agree to the admission of their stipulation. Our review is for plain error because the defendants did not object to the stipulation before the district court. Martin, 777 F.3d at 993.
We recently rejected a very similar argument in Martin. There, as here, the defendants did not object to an evidentiary stipulation in district court, yet claimed on appeal that it had not been knowingly made. 777 F.3d at 993. We noted there that a defendant is ordinarily bound by an agreed upon stipulation “[u]nless the defendant indicates objection at the time the stipulation is made.” Id. (internal quotation marks omitted). Martin also reaffirmed our circuit rules that 1) an inquiry as thorough as that provided for in
Appellants now emphasize what they see as the sole difference between Martin and their case: in Martin the stipulation was signed by the defendant, while here the stipulation was signed only by defense counsel. This argument fails. The stipulation was read verbatim in open court in the presence of appellants and defense counsel represented that they did not object to its admission. Appellants are bound by their stipulation, and it was not plain error for the district court to accept it. See 777 F.3d at 993.
At sentencing both Benedict and Carpenter received enhancements under the sentencing guidelines for being career offenders as defined in
Subsequently, in United States v. Stymiest, 581 F.3d 759 (8th Cir. 2009), the court broadened the type of burglary qualifying as an enumerated crime of violence. The Stymiest appellant had a prior conviction for third degree burglary of a research building. 581 F.3d at 767-68. The court noted that this generic burglary would have been an enumerated offense if the Sentencing Commission had not limited the definition of crime of violence in
In the case now before our court, appellants seek resentencing under the Supreme Court’s recent decision in Johnson v. U.S., 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). This decision focused on the Armed Career Criminal Act (ACCA) definition of violent felony. The Court decided that the language used in the residual clause of that definition is unconstitutionally vague. Id. at 2563. Thereafter, a panel of our court remanded for resentencing in United States v. Taylor, 803 F.3d 931, 932-33 (8th Cir. 2015), a case in which the appellant had been sentenced under the identically worded residual clause in
Assuming without deciding that the holding of the Supreme Court’s Johnson decision applies to the residual clause in the guidelines, we affirm appellant’s classifications as career offenders under Stymi-
V.
The district court did not err by holding a joint trial for these coconspirators, accepting counsel’s evidentiary stipulation, or excluding expert witness testimony. Nor did the trial court err in its imposition of restitution. The evidence was also more than sufficient to convict Benedict. Because our decision in Stymiest qualifies the appellants’ prior convictions as crimes of violence under the guidelines, we affirm their career offender status and sentences. See Stymiest, 581 F.3d at 769. The judgments of the district court are affirmed.
COLLOTON, Circuit Judge, concurring.
I concur in the opinion of the court, but with reservations about the alternative holding in United States v. Stymiest, 581 F.3d 759, 769 (8th Cir. 2009), and its application to the sentences imposed in this case. Stymiest, adopting dicta from United States v. Bell, 445 F.3d 1086, 1090 (8th Cir. 2006), said that the Sentencing Commission’s decision to define “crime of violence” in the career offender guideline,