United States of America v. Wicahpe George Milk
No. 21-3722
United States Court of Appeals For the Eighth Circuit
May 3, 2023
Wicahpe Milk was convicted by a jury of conspiracy to distribute 500 grams or more of a substance containing methamphetamine, possession of a firearm as a convicted felon, and obstruction of justice. On appeal, Milk challenges several district court decisions that span from indictment through sentencing. After careful review of the record and of all issues raised on appeal, we affirm.
I.
“We present the facts in a light most favorable to the verdicts, drawing all reasonable inferences from thе evidence that support the jury‘s verdicts.” United States v. Ramon-Rodriguez, 492 F.3d 930, 934 (8th Cir. 2007). In January 2015, Milk moved to California after he was released from federal prison on an unrelated offense. Shortly thereafter, Milk turned to distributing methamphetamine. Milk used his cousin, Frank Milk (Frank), as one of his first distributors. In late-summer 2015, Frank traveled from South Dakota to California to visit Milk. While there, Milk advanced, or “fronted,” distribution-level quantities of methamphetamine for Frank to sell in South Dakota, and Frank agreed to bring his profits back to Milk. Frank, on his return to South Dakota, enlisted the help of “trusted” associates to sell the drugs. Frank later made two more trips to California, each time receiving distribution-level quаntities of methamphetamine from Milk.
Milk, too, made at least two trips to South Dakota to sell methamphetamine he transported from California. The Lakota Prairie Ranch Resort in Kyle, South Dakota, served as the initial “base of operations” for Milk‘s drug activity, and Milk rented rooms at this motel to engage in drug transactions. Milk soon became known as the drug source, or “plug,” to his distributors and associates. Frank and several others, including Harold Brewer and Julissa Poor Bear, served as Milk‘s distributors. Milk frequently fronted them large quantities of methamphetamine that they quickly sold throughout South Dakota.
Milk later relocated from California to South Dakota, and he continued to acquire his methamphetamine from California. Milk rented a house called Turtle Creek in Rapid City, South Dakota, where he lived with Poor Bear, Brewer, and others. Together, Milk and his distributors regularly engaged in drug deals inside the home. Isaac Francis, owner of the Turtle Creek home, occasionally obtained user-level quantities of methamphetamine from Milk and Poor Bear, and the two sometimes paid him for rent with methamphetamine. Neighbors complained of the noise and foot traffic in and out of the home, and after two or three months, Francis asked Milk and the others to move out. Milk and Poor Bear relocated to the Pine Ridge Reservation in Wanblee, South Dakota, where the two continued selling drugs.
On August 17, 2016, Milk was arrested by local law enforcement during a traffic stop in Box Elder, South Dakota. Officers discovered 156.12 grams of methamphetamine, a handgun, and drug paraphernalia
Milk remained incarcerated in the Pennington County Jail in Rapid City, South Dakota, pending his trial. Brewer, incarcerated in the same jail, began receiving contraband jailhouse notes from Milk about Brewer‘s statements to law enforcement. Milk‘s notes to Brewer said things like, “Tell them nothing,” “[I]f you tell them about any dope you gonna get us jambed up,” “Get that story recanted,” and “Follow my lead and stick to the code of silence.” In other notes, Milk demanded that Brewer call his own or Milk‘s attorney to explain that Brewer‘s previous statemеnts to law enforcement were “lie[s].” On April 16, 2019, the government obtained a second superseding indictment against Milk, adding a charge for obstruction of justice in violation of
Later, law enforcement received information that Milk and several other inmates were attempting to intimidate a witness—also an inmate at the jail—who was scheduled to testify in the criminal trial of one of Milk‘s distributors. The government responded by establishing a “taint team,” composed of an investigating agent and attorney separate from the team investigating and prosecuting Milk, to search Milk‘s jail cell for evidence of witness tampering. The taint team initially screened the materials seized from Milk‘s cell for any potentially privileged documents before turning the remaining documents over to the prosecution team.
Before trial, Milk filed several pretrial motions, which the district court2 denied in whole or in part, and the case proceeded to trial. After the jury returned guilty verdicts on all counts, Milk moved to dismiss the case for lack of jurisdiction. The district court3 denied the motion. Milk received a sentence of 360 months of imprisonment on the drug conspiracy count and 120 months of imprisonment on the firearm and obstruction of justice counts, with all sentences to run concurrently, followed by 5 years of supervised release.
II.
On appeal, Milk challenges several of the district court‘s pre- and post-trial rulings, argues the evidence was insufficient to support his convictions, and challenges the calculation of his advisory Guidelines range at sentencing. We address Milk‘s various arguments in turn and present additional facts as relevant to the arguments.
A.
We begin with Milk‘s assertion that the district court lacked subject matter jurisdiction over his case. “The issue of whether federal subject matter jurisdiction exists is subject to de novo review.” United States v. Thunder Hawk, 127 F.3d 705, 706 (8th Cir. 1997).
Milk, who is Native American and an enrolled member of the Oglala Sioux Tribe, contends that the district court lacked jurisdiction because (1) he was convicted of crimes that are not enumerated under the Major Crimes Act,
B.
Next, we turn to Milk‘s appeal of the denial of his motions to suppress evidence seized during the traffic stop and from his jail cell. “In evaluating the denial of a motion to suppress, we review the district court‘s legal conclusions de novo and factual findings for clear error.” United States v. Nyah, 35 F.4th 1100, 1105 (8th Cir. 2022). “We will affirm unless the denial of the motion is unsupported by substantial evidence, is based on an erroneous interpretation of the law, or it is clear, based on the entire record, that a mistake was made.” United States v. Walker, 840 F.3d 477, 483 (8th Cir. 2016).
1.
First, Milk contends the August 17, 2016, traffic stop was unlawful. The
Deputy Keith Carlson conducted the traffic stop, and he stated that in the early morning hours of August 17, while on “saturation patrol,”7 he observed a red Pontiac driving erratically. Carlson testified that he saw the car sit at a stop sign for “approximately 30 seconds,” drive “into the gravel area” of the road‘s shoulder before “jerking back into the roadway,” and then “braking randomly[,] slowing down[,] and speeding up.” The district court credited this testimony. Milk nonetheless argues that Carlson was “fibbing.” But “[a] credibility determination made by a district court after a hearing on the merits of a motion to suppress is virtually unassailable on appеal.” United States v. Morris, 915 F.3d 552, 555 (8th Cir. 2019) (quotations omitted). And Deputy Carlson‘s dashcam video from his patrol vehicle captured the Pontiac crossing the center line of the roadway. We find no clear error in the district court‘s factual findings and agree that Deputy Carlson had probable cause to stop the Pontiac.
Next, Milk challenges the warrantless search of the Pontiac. “Under the automobile exception to the
2.
Before trial, Milk filed a motion to suppress evidence seized from his jail cell on
On appeal, Milk reasserts his argument that the proper remedy was dismissal of the indictment. But the remedy for any
C.
Milk argues that the delay between his arrest on August 17, 2016, and his initial appearance beforе a federal magistrate judge on September 26, 2016, violated
Under
When Milk was arrested on August 17, 2016, he was taken into state custody. Milk has offered no evidence to suggest he was held in state custody at the direction of or in concert with federal officers. As a result,
D.
Milk also appeals the district court‘s denial of his motion for a bill of particulars on his conspiracy charge. “We review a district court‘s ruling regarding a bill of particulars for abuse of discretion.” United States v. Shepard, 462 F.3d 847, 860 (8th Cir. 2006). To establish reversible error based on a denial of his motion, Milk “must show that he was actually surprised
Milk argues the indictment lacked sufficient facts to allow him to mount a defense against the charge of conspiracy. “A bill of particulars serves to inform the defendant of the nature of the charge against him with sufficient precision to enable him to prepare for trial, and to avoid or minimize the danger of surprise at trial.” Shepard, 462 F.3d at 860 (cleaned up); see Livingstone, 576 F.3d at 883 (“If a defendant believes that an indictment does not provide enough information to prepare a defense, then he or she may move for a bill of particulars.“);
The indictment here set forth the elements of the offense, apprised Milk of the type of drugs involved, and specified the time frame of the alleged drug conspiracy. This was sufficient to inform Milk of the basis for the charge. See United States v. Huggans, 650 F.3d 1210, 1218 (8th Cir. 2011) (holding that an indictment for conspiracy to distribute a controlled substance provides “‘specific facts constituting the offense’ if it apprises the defendant of the time frame of the alleged drug conspiracy and the type of drugs involved” (citation omitted)). Furthеr, Milk concedes the government provided voluminous discovery prior to trial, including proffer statements and witness interviews. Milk has failed to show any actual surprise at trial or prejudice. See United States v. Maull, 806 F.2d 1340, 1346 (8th Cir. 1986) (finding no prejudice or surprise where, in response to the defendant‘s motion for a bill of particulars, the government provided the names of unindicted conspirators and the statements of relevant individuals). The district court did not abuse its discretion in denying Milk‘s motion for a bill of particulars.
E.
Milk argues that the district court abused its discretion when it refused to sever the conspiracy, firearm, and obstruction counts for trial under
Evidence that Milk unlawfully possessed a firearm would have been admissible in a separate trial on the conspiracy charge because Milk was alleged to have possessed the firearm during the drug conspiracy. The government‘s evidence showed that Milk possessed distribution-quantity drugs and a firearm simultaneously, making his possession of the firearm relevant to the charged drug conspiracy. See United States v. Jones, 880 F.2d 55, 61-62 (8th Cir. 1989). And in a separate trial for obstruction, evidence of Milk‘s conspiracy and firearm charges would have been probative and admissible to show his intent or motive for seeking to influence a witness‘s testimony on those underlying charges. See United States v. Rock, 282 F.3d 548, 552 (8th Cir. 2002) (finding no showing of prejudice where the defendant‘s “felon-in-possession charge would have been admissible in a separate trial of the witness tampering charge, beсause [his] witness tampering was an attempt to avoid prosecution of the firearms charge“). Under these circumstances, Milk has not shown that he would have had an appreciable chance for an acquittal on any count had the trials been severed. See Reichel, 911 F.3d at 915.
Milk nonetheless contends he was prejudiced because he “had to make the decision to testify as to all or none of the counts.” But “[a] defendant arguing for severance on this basis must make a ‘persuasive and detailed showing regarding the testimony he would give on the one count he wishes severed and the reason he cannot testify on the other counts.‘” McCarther, 596 F.3d at 443 (quoting United States v. Possick, 849 F.2d 332, 338 (8th Cir. 1988)). Milk‘s bare assertion fails to make the requisite showing. See United States v. Little Dog, 398 F.3d 1032, 1037 (8th Cir. 2005) (holding that a defendant‘s contention that “he was prejudiced because he did not want to testify to the obstruction charge but did want to testify to the sexual charges” was “not enough to require severance“). The district court did not abuse its discretion in denying Milk‘s motions to sever.
F.
Milk next argues that
Milk also argues that the phrase “due administration of justice” in
For an as-applied challenge, “we look to whether the statute gave adequate warning, under a specific set of facts, that [Milk‘s] behavior was a criminal offense.” United States v. Palmer, 917 F.3d 1035, 1038-39 (8th Cir. 2019) (quoting United States v. Washam, 312 F.3d 926, 931 (8th Cir. 2002)). Milk‘s only argument is that the phrase “due administration of justice” can mean “anything that a prosecutor or judge says it is.” But the evidence showed that Milk engaged in conduct that was intended to discourage a witness from testifying, or to convince him to change his testimony, at proceedings in Milk‘s and Poor Bear‘s federal criminal cases. These allegations, included in the indictment, gave Milk adequate warning of the nature of the conduct as well as the proceedings the conduct was intended to obstruct. The statute also contains a mens rea requirement that limits its scope to those who act “corruptly.”
G.
We now address whether the evidence was sufficient to sustain Milk‘s cоnvictions. Our review is de novo, “viewing evidence in the light most favorable to the government, resolving conflicts in the government‘s favor, and accepting all reasonable inferences that support the verdict.” United States v. Maurstad, 35 F.4th 1139, 1144 (8th Cir. 2022) (quoting United States v. Casteel, 717 F.3d 635, 644 (8th Cir. 2013)). “We will reverse only if no reasonable jury could have found [Milk] guilty beyond a reasonable doubt.” Id.
1.
To convict Milk of conspiracy to distribute a controlled substance under
Milk contends that there was insufficient evidence of his participation in a conspiracy to distribute methamphetamine in part because the government failed to present “objective evidence,” such as a controlled buy, at trial. But “evidence at trial that consists primarily of testimony from other members of the conspiracy may suffice to establish [a] defendant‘s guilt.” United States v. Conway, 754 F.3d 580, 587 (8th Cir. 2014). The evidence demonstrated that Milk was the link between methamphetamine sourced from California and a network of distributors in South Dakota and that he recruited others to
Milk questions the credibility of most witnesses who testified, but we defer to the jury‘s assessment of witness credibility and will not reweigh the evidence or the credibility of the government‘s witnesses. See United States v. Moya, 690 F.3d 944, 950 (8th Cir. 2012); United States v. Taylor, 813 F.3d 1139, 1147 (8th Cir. 2016). Viewing the evidence in the light most favorable to the verdict, it was sufficient to allow a jury to find beyond a reasonable doubt that there was a conspiracy between Milk and others to distribute methamphetamine in the amounts charged, that Milk knew abоut the conspiracy, and that he intentionally joined it.
2.
To support a conviction for possession of a firearm as a convicted felon, the government must establish that (1) Milk had been previously convicted of a crime punishable by a term of imprisonment exceeding one year; (2) Milk knowingly possessed a firearm; (3) the firearm was in or affecting interstate commerce; and (4) Milk knew he belonged to the relevant category of persons barred from possessing a firearm. United States v. McKee, 42 F.4th 910, 913 (8th Cir. 2022).
Milk challenges only the second element, arguing that the government failed to prove he knowingly possessed the firearm found in the Pontiac whеn he was arrested on August 17. This element may be satisfied by proof of actual or constructive possession. United States v. Green, 835 F.3d 844, 852 (8th Cir. 2016). “To show constructive possession, the government must prove that the defendant had dominion over the premises where the firearm was located, or control, ownership, or dominion over the firearm itself.” United States v. Parsons, 946 F.3d 1011, 1014 (8th Cir. 2020) (cleaned up) (quoting United States v. Maxwell, 363 F.3d 815, 818 (8th Cir. 2004)). “Mere physical proximity to a firearm is not enough to show constructive possession, but knowledge of a firearm‘s presence, combined with control is constructive possession.” United States v. Battle, 774 F.3d 504, 511 (8th Cir. 2014) (alterations omitted) (quoting United States v. Mann, 701 F.3d 274, 304-05 (8th Cir. 2014)).
The government presented evidence that Milk had dominion over the Pontiac, where the firearm was found. The testimony at trial showed that Milk borrowed the car from another man, who emptied and cleaned out the vehicle before loaning it to Milk. Milk‘s personal items, including at least one purchase receipt, were found inside the vehicle. The government also presented evidence that Milk had knowledge of the firearm. The gun was recovered from inside a red drawstring bag in the Pontiac, and surveillance footage showed Milk leaving a Walmart carrying the same distinctive red bag one hour before the Pontiac was stopped. Deputy Carlson also testified that, although the red drawstring bag was found on the floor of the front passеnger side while Milk sat in the rear passenger side, he saw the occupants of the vehicle move around after he initiated his traffic stop, suggesting the occupants may have rearranged themselves or their belongings. Finally, the government presented evidence that Milk on occasion traded methamphetamine for guns. Under these facts, a jury could conclude beyond a reasonable doubt that Milk knowingly possessed the firearm as charged.
Turning to Milk‘s charge for obstruction of justice,
Milk argues the evidence is insufficient to support the verdict because the government failed to establish that anyone was intimidated by his alleged obstructive conduct or that his actions caused a witness to testify falsely. But to convict under
H.
Finally, we address the challenges to the calculation of Milk‘s Guidelines range. We review the district court‘s interpretаtion and application of the Guidelines de novo, and we review findings of fact for clear error. See Lewis, 976 F.3d at 797.
1.
The district court applied a two-level enhancement pursuant to
Milk‘s only argument is that he did not own, reside at, or control access to the Turtle Creek house. Although Milk did not own the house, the evidence established that he lived there for a few months and paid rent for the property, which he sometimes paid with methamphetamine. The evidence also showed that Milk exercised control over the house, including who lived at Turtle Creek and the nature of the drug trafficking that took place there. We disсern no clear error in the district court‘s findings, which support the application of
2.
Finally, Milk argues that the district court clearly erred in calculating the drug quantity for purposes of establishing his base offense level. When calculating drug quantity in a conspiracy case, the district court may consider “drug quantities attributable directly to the defendant as well as quantities attributable to the reasonably foreseeable actions of others taken to further the conspiracy.” United States v. Young, 689 F.3d 941, 945 (8th Cir. 2012); see also United States v. Washington, 968 F.3d 860, 865 (8th Cir. 2020). Where, as here, there is “no drug seizure or the amount seized does not reflect the scale of the offense,” the district court “shall approximate the quantity of the controlled substance.” Young, 689 F.3d at 945 (quoting United States v. Pugh, 25 F.3d 669, 677 (8th Cir. 1994)). The district court‘s approximation may be “based on imprecise evidence so long as the record reflects a basis for the court‘s decision.” United States v. Yellow Horse, 774 F.3d 493, 497 (8th Cir. 2014) (quoting United States v. Roach, 164 F.3d 403, 413-14 (8th Cir. 1998)).
Milk contends the drug quantity attributed to him was based solely on “arbitrary estimations” and “speculation.” But the district court‘s findings of drug quantities were supported by the evidence. Multiple witnesses testified consistently about the amount of methamphetamine they received from Milk or that they personally observed him with. And because Frank, Brewer, Poor Bear, and others were members of the same conspiracy, the court permissibly attributed thе quantities they distributed over the course of the conspiracy to Milk in the sentencing calculation. Some of the evidence presented at trial regarding quantity was admittedly imprecise. But the government substantiated this evidence with expert testimony from Special Agent Dan Cooper, who approximated the weight of the methamphetamine based on testimony elicited from other witnesses at trial. The district court did not clearly err in its quantity determination.
III.
Based on the foregoing, we affirm the judgment of the district court.
KELLY
CIRCUIT JUDGE