UNITED STATES оf America, Appellee, v. Peter George NOE, Appellant. United States of America, Appellee, v. Timothy James Schultz, Appellant. United States of America, Appellee, v. Amy Marie Placek, Appellant. United States of America, Appellee, v. Terry Lynn Bauman, Appellant.
Nos. 03-3837, 03-3879, 03-3880, 03-4048.
United States Court of Appeals, Eighth Circuit.
Submitted: Nov. 15, 2004. Filed: June 9, 2005.
411 F.3d 878
In sum, on this record, we cannot be certain that the district court properly considered and rejected Mr. Baretz’ departure arguments with a full recognition of its discretion to depart downward. Such a misunderstanding constitutes legal error warranting remand. See United States v. Hegge, 196 F.3d 772, 774 (7th Cir.1999).
Conclusion
Because we have determined that the district court applied the incorrect version of the United States Sentencing Guidelines and because the record reveals that the district court misapprehended its authority to depart downward from the applicable guideline range,9 this case must be remanded to the district court, and the district court instructed to conduct a new sentencing.10 As our cases require, in order to comply with the direction of the Supreme Court in Booker, the district court must compute the applicable guideline sentence and employ that computation as a guide in determining the actual sentence to be imposed.11
Accordingly, the sentence imposed by the district court is vacated and the case is remanded for resentencing.
SENTENCE VACATED; CASE REMANDED
Jenny Chaplinski, argued, Minneapolis, Minnesota, for appellant Noe.
Douglas B. Altman, argued, Minneapolis, Minnesota (Deborah Ellis, on the brief), for appellants Schultz and Placek.
Paul Applebaum, argued, St. Paul, Minnesota, for appellant Bauman.
Jeff Paulsen, Assistant U.S. Attorney, argued, Minneapolis, Minnesota (Thomas B. Heffelfinger, on the brief), for appellee.
Before WOLLMAN, HEANEY, and FAGG, Circuit Judges.
WOLLMAN, Circuit Judge.
A jury found Peter Noe guilty of conspiring to distribute methamphetamine in violation of
I. Background
Noe and Schultz headed a methamphetamine conspiracy in Austin, Minnesota, from 2000 to 2002. Noe dealt marijuana on the side. Placek and Bauman participated in the conspiracy, and a number of other individuals served as sub-dealers. Others transported, mailed, received, and otherwise facilitated the flow of drugs, which emanated from Californian sources. One such individual was Jessica Taft, who began receiving packages of methamphetamine from Schultz before her eighteenth birthday. The group specialized in a powerful form of methamphetamine known as glass.
In 1999, a police raid on a house inhabited by Noe and Schultz yielded several loaded handguns, approximately 32 pounds of marijuana, and approximately $28,700 in cash. Noe was in and out of jail for various offenses until August of 2001. In April 2002, police raided a hotel room occupied by Noe, discovering more drugs and cash. During his re-incarceration, despite posted notice that phone calls were subjeсt to monitoring, Noe made references during phone conversations to drug orders, particular firearms, and even his confidence that he could best the police and the federal government. In speaking with his grandmother from the jail phone, Noe noted, “It’s all a big *ss game with the cops because they f*cked with me ... they drew the line in the sand.” His grandmother replied, “Let me tell you about that line in the sand, Peter. They’ve got ... a lot of stuff on their side and don’t get yourself blown away.” Noe responded, “Yeah well I’ve got guns too” and went
The raids and ongoing investigations necessitated careful storage of the drugs, which led Noe and Schultz to rely on Placek and Bauman. Bauman, for example, kept a safe in his basement where he stored methamphetamine at Schultz’s behest. At times, however, managing the underlings of the conspiracy proved difficult. On one occasion, a sub-dealer named Keith Price took three ounces of Schultz’s methamphetamine and failed to pay the $10,000 that Schultz requested for it. Placek lured Price to her house, where Schultz ambushed him, beat him, broke two of his teeth, and removed another tooth with pliers. At the end of this ill-fated encounter, Schultz told Price that he owed him only $5,000.
Bobby Sea, Schultz’s counsel, cross-examined Price, who had testified to the pliers incident on direct examination. Sea began by establishing that, prior to meeting Schultz, Price used marijuana, had driven and crashed a car under the influence of alcohol, and had vandalized police cars. Sea then went on to cross-examine Price regarding the substantive matters about which Price had testified on direct examination. On redirect examination, the prosecutor referred to Sea’s question about vandalizing police cars and inquirеd whether somebody had asked Price to do this. Price replied that Noe had asked him to do it. The prosecutor continued: “And what did he want you to do to [the police cars]?” Price’s response: “He said he’d give us a hundred dollars if we wrote I.E. Wood on each cop car.” When asked the meaning of “I.E. Wood,” Price answered, “In the Empire of Wood or [a] white supremacist gang.” The prosecutor then asked who belonged to that gang and Price replied, “Pete [Noe] and Tim [Schultz], as far as I know.” The court later instructed the jury to disregard the testimony about I.E. Wood.
On appeal, Noe contends that the district court erred by admitting evidence that he was a member of a white supremacist gang and by denying his motion to sever his trial from that of Schultz. Schultz joins in Noe’s first contention and further contends that the district court erred by admitting evidence of his assault on Price. Schultz also asserts that the district court erred by enhancing his sentence for use of a minor, possession of a firearm, and for his role as an organizer or leader. In addition, Noe and Schultz filed motions to remand their cases for resentencing in light of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
Placek pleaded guilty pursuant to a plea agreement that required her to testify fully and truthfully against her co-defendants. Subsequent to making this agreement, however, Placek telephoned Noe and reassured him that despite the plea agreement she was “trying not to do anything that’s gonna f*ck with everybody’s life,” and that she could “discredit” Eric Borg, one of the government’s witnesses. She also told Noe that the government “probably won’t want me to [testify] because I changed my story every time I talk to ‘em.” At a meeting with the government one week before Schultz’s and Noe’s trial, Placek changed her story in a way consistent with her promise to Noe. The prosecutor decided not to use Placek as a witness at trial and, citing her telephone conversation with Noe and her evasiveness at the meeting, decided not to make a downward departure motion on her behalf at sentencing. The district court found that Placek’s attempts at the evidentiary hearing to explain away her exchange with Noe were “flat and blatant
After pleading guilty to methamphetamine trafficking charges, Bauman testified against Noe and Schultz at trial. The district court granted the government’s § 5K1.1 downward departure motion and sentenced Bauman to 100 months’ imprisonment, a term substantially lower than the applicable Guidelines range of 188-235 months. On appeal, Bauman claims that the district court abused its discretion by declining to sentence him to less than 100 months’ imprisonment. We dispose of his claim here: Bauman did in fact receive a substantial downward departure in his sentence and “[i]n this circuit, the extent of a district court’s downward deрarture is not reviewable.” United States v. McCarthy, 97 F.3d 1562, 1577 (8th Cir.1996).
II. Gang-Related Testimony
Noe and Schultz argue that it was reversible error for the court to admit evidence of their membership in a white supremacist gang. Because defense counsel did not object to the admission of the evidence at trial, we review for plain error. United States v. Whitetail, 956 F.2d 857, 861 (8th Cir.1992).
As described above, it was Noe’s counsel, Sea, who first asked Price about vandalizing police cars. The government then delved into the topic on redirect examination, causing Price to disclose that Noe had asked him to vandalize the police cars by spraypainting the name of a gang on them. Sea objected to the relevance of the prosecutor’s questions only when the government began to inquire more broadly into vandalism in the Austin area, whereupon the prosecutor withdrew the question. The evidence of Noe and Schultz’s membership in the gang, however, had already been admitted without objection on relevancy grounds.
When Price said that Noe and Schultz belonged to the gang, Albert Garcia, counsel to Noe, objected only on the ground that the testimony was speculative. The court sustained the objection, instructing the government to lay some foundation. The prosecutor then asked Price how he knew of their membership in the gang, and Price replied that Noe and Schultz had the name of the gang tattooed on their bodies.
Attorney Garcia returned to the subject on re-cross examination, attempting to show that Noe was not sincere in his request that Price spraypaint the name of the gang on the police cars. Soon thereafter, the court addressed the jury, instructing it in regard to the “testimony concerning an organization or something of that nature” as follows: “You will not consider that as part of the evidence against the defendants on the subject of whether or not they have committed or not committed the crimes thаt are charged in the indictment. Do you understand that? So I’m striking that or making it clear that that is not evidence of the substantive crimes with which the defendants are charged in this case, okay.” Tr. at 131-32.
Sea’s relevance objection did not come when the prosecutor asked Price what he had been instructed to do with the police cars. Nor did it come when the prosecutor asked Price to explain the meaning of “I.E. Wood.” His only objection at this stage went to Price’s basis of knowledge, and thus he did not raise a
Thus, we find no improper cоnduct on the government’s part in pursuing the foregoing line of questioning. In any event, even if we found that the questioning delved into irrelevant matters, we would not reverse unless we were persuaded that the questioning probably prejudiced the defendant and that the district court took no action to eliminate any prejudice flowing from the questions. Keeble v. United States, 347 F.2d 951, 956 (8th Cir.1965), cert. denied, 382 U.S. 940, 86 S.Ct. 394, 15 L.Ed.2d 350 (1965). In light of the substantial evidence against the appellants and the court’s limiting instruction, to which no objection was raised, we conclude that no reversible error occurred.
III. Failure to Sever
Noe contends that the district court erred in denying his motion to sever his trial from Schultz’s trial. “A denial of a motion to sеver will not be reversed unless clear prejudice and an abuse of discretion are shown.” United States v. Pherigo, 327 F.3d 690, 693 (8th Cir.2003). Severance is not required “simply because the evidence may have been more damaging against one appellant than the others.” United States v. Garcia, 785 F.2d 214, 220 (8th Cir.1986). Our strong presumption against severing properly joined cases, see, e.g., United States v. Delpit, 94 F.3d 1134 (8th Cir.1996), is consistent with the goal of achieving a correct outcome. Zafiro v. United States, 506 U.S. 534, 537, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993) (joint trials “avoid[] the scandal and inequity of inconsistent verdicts“); United States v. Darden, 70 F.3d 1507, 1528 (8th Cir.1995) (“[A] joint trial gives the jury the best perspective on all of the evidence and therefore increases the likelihood of a correct outcome“). Severance does, however, become necessary “where the proof is such that a jury could not be expected to compartmentalize the evidence as it relates to separate defendants.” United States v. Jackson, 549 F.2d 517, 525 (8th Cir.1977).
Noe alleges that the prosecutor made “no effort to separate the violent acts of Mr. Schultz from Mr. Noe.” He further alleges that the strength of the evidence of his involvement in the conspiracy was surpassed by the strength of the evidence of Schultz’s involvement and that there is a significant chance that the jury attributed Schultz’s violent behavior to Noe. Even if we were to accept Noe’s argument about the disparity between the strength of the evidence presented against him and that presented against Schultz, severance would not be warranted. See Garcia, 785 F.2d at 220. To support his claim of attributed violent behavior, Noe refers to the prosecutor’s choice of words in a sentence uttered during closing arguments: “that’s just one example of the willingness of these people to use violence.” Tr. at 563. We reject Noe’s assertion that this statement prevented the jury from properly compartmentalizing the
IV. Evidence of Assault
Schultz maintains that the evidence of his assault on Price should have been excluded as unduly prejudicial under
Relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.”
As to the question whether this evidence, though relevant, presented too great a danger of prejudice, we consider “the degree of unfairness of the prejudicial evidence and whether it tends to support a decision on an improper basis.” United States v. Dierling, 131 F.3d 722, 730 (8th Cir.1997). Schultz’s use of violence underscored to Price and others in the conspiracy the seriousness of the business and the consequences of disloyalty. It was highly probative of the conspiracy itself and Schultz’s leadership role within it. Although doubtless graphic, the pliers incident evidence was not so inflammatory as to mandate a finding that it was so unfair and had such a tendency to support a decision on an improper basis that the district сourt abused its discretion in admitting it. In a word, the danger of unfair prejudice arising from this evidence did not substantially outweigh its probative value, as is evident from our holdings in similar cases. See id. at 730-31 (upholding the admission of evidence of the brutal murder of a member of a drug conspiracy, as it related to the maintenance of control of the conspiracy); United States v. Johnson, 169 F.3d 1092, 1096-97 (8th Cir.1999) (upholding the admission of evidence of the rape and beating of a member of the conspiracy as relevant to establishing the defendants’ drug collection methods and enforcement of rules in furtherance of the conspiracy).
V. Constitutionality of the Sentences
We turn to the question whether Noе’s and Schultz’s sentences
Plain error review proceeds under the four-part test of United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Noe’s and Schultz’s claims fail the third part of the test. In order to show that the error affected substantial rights, they must show a reasonable probability based on the record as a whole that but for the mandatory application of the guidelines they would have received a lesser sentence. Pirani, 406 F.3d at 557. Nothing in the record suggests that they would have received a lesser sentence if the district court had known that the guidelines were merely advisory. Even under the mandatory regime in effect at the time of sentencing, the district court could have sentenced Noe and Schultz to lesser sentences of 360 months’ imprisonment under the guidelines even aftеr applying the enhancements. That the district court imposed sentences well in excess of the minimum guidelines range forecloses any plausible contention that a merely advisory guidelines regime would probably have resulted in lesser sentences.
VI. Application of the Sentencing Guidelines
Schultz claims that the district court erroneously applied three enhancements to his sentence under the United States Sentencing Guidelines:
A.
Schultz does not contest that he involved a minor, Jessica Taft, in the drug conspiracy. Rather, he suggests that
B.
Schultz claims that his possession of a firearm was not proven by a prepon-
Borg testified that he helped build a safe in Bauman’s wall to hold Schultz’s drugs and firearms, and Price testified that Schultz owned several guns and that he once helped Schultz send one via mail to California. Firearms were recovered in December of 1999 from Schultz and Noe’s residence, and the evidence of Noe’s possession of firearms in relation to the drug offenses was unequivocal. The conspiracy at issue began in 2000, and thus we do not take into account the guns recovered from the residence in 1999. “[A]ny enhancement for possession of a firearm requires proof that the firearm was present during the drug offense.” United States v. Johnson, 260 F.3d 919, 922 (8th Cir.2001). The district court also noted that Schultz was responsible for the reasonably foreseeable activities of his co-defendant. The issue, however, is not whether Noe possessed firearms, but rather whether Schultz was shown to possess firearms. Although Schultz is responsible for certain activities of his co-defendant, his sentence cannot be enhanced for firearm possession on the sole basis that his co-defendant possessed firearms. Therefore, the validity of the enhancement depends on the trial testimony of Borg and Price.
The government was required to establish that Schultz possessed a firearm and that a nexus existed between that firearm and the offenses of which Schultz was convicted. See Betz, 82 F.3d at 210. If the testimony of Borg and Price is accepted as proof of possession, the nexus follows, as their testimony related to the drug conspiracy and not to other activities in relation to which one might use a firearm. Credible and substantial testimony by an accomplice is sufficient to support a conviction, United States v. Tucker, 169 F.3d 1115, 1119 (8th Cir.1999), and can prove firearm possession under the preponderance of the evidence standard. Chesney v. United States, 367 F.3d 1055, 1060 (8th Cir.2004). Based on the mutually reinforcing testimony of Borg and Price, we conclude that the district court did not сlearly err in applying the enhancement.
C.
Schultz contends that he was a manager or supervisor and not a leader or organizer. He argues that Noe was responsible for a greater share of the criminal activity and that evidence of Noe’s firearm possession far surpassed the evidence presented about his own involvement with firearms. Even if true, these allegations do not advance his claim. The four-level role enhancement under
Having determined that the district court correctly calculated the applicable guidelines range, we proceed to review whether the sentence was reasonable in light of
The reasoning and conclusion in the foregoing reasonableness analysis applies to Noe’s sentence as well, and thus we need not discuss further his challenge to the sentence.
VII. Placek’s Claims
A.
Placek first claims that the government violated
B.
Pointing to her meeting with the government one week prior to thе trial, Placek next claims that the government’s decision not to provide her attorney with a transcript at that time of her conversation with Noe constituted a denial of counsel in violation of the Sixth Amendment. Placek contends that had her attorney received notice of this evidence at that time, he would have attended the meeting. Her attorney was aware of the meeting, however, and of the fact that the date of trial was rapidly approaching. The government did nothing to discourage his attendance and did not, in fact, confront Placek with the evidence at this meeting. Placek states that “the government’s lack of candor and failure to disclose [her] statement depleted [her] waiver of any intelligent [sic] or voluntariness which were essential to a valid waiver of her right to counsel.” She goes on to note that the “intercepted telephone conversation was certainly a concern for the government that [she] was not truly willing to cooperate [sic] but yet [her] own counsel was kept in the dark that [her] conduct potentially jeopardized her sentencing options.” Citing United States v. Leonti, 326 F.3d 1111 (9th Cir.2003), Placek claims that the “period of time between a guilty plea and sentencing ... is a critical stage in a criminal рroceeding during which a defendant is entitled to the assistance of counsel.” Leonti states that “[a] critical
C.
Placek’s claim that the government acted in bad faith when it declined to file a departure motion under
VIII. Conclusion
The sentences of all four appellants are affirmed.
WOLLMAN
CIRCUIT JUDGE