United States v. John J. Torre ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-1173
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Western
v. * District of Missouri.
*
John J. Torre, * [UNPUBLISHED]
*
Appellant. *
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Submitted: September 16, 1999
Filed: September 22, 1999
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Before BEAM and FAGG, Circuit Judges, and BOGUE,* District Judge.
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PER CURIAM.
While in pursuit of a fleeing suspect, police entered a private home where they
detected a chemical odor and other signs of methamphetamine manufacture. After
securing a search warrant, the officers discovered a methamphetamine laboratory and
arrested the house’s occupants, including Charles J. Dunne, Kent E. Byrom, Steven C.
McDonald, Chad Schlag, and John J. Torre. Schlag died from methamphetamine
ingestion three hours after his arrest. Torre was later found guilty of attempt to
*
The Honorable Andrew W. Bogue, United States District Judge for the District
of South Dakota, sitting by designation.
manufacture methamphetamine and was sentenced to 312 months in prison. Torre
appeals his conviction and sentence. We affirm.
Torre first challenges the sufficiency of the evidence supporting his conviction.
We review the evidence in the light most favorable to the government and reverse only
if no reasonable jury could have found the defendant guilty. See United States v.
Wagner, 884 F.2d 1090, 1096 (8th Cir. 1989). Torre asserts he was not adequately
identified at trial. We disagree. Four witnesses and defense counsel identified Torre
and referred to him during the trial, and thus, the jury could infer Torre’s identity as the
person who committed the acts charged. See United States v. Capozzi, 883 F.2d 608,
617 (8th Cir. 1989). Torre also asserts the evidence failed to show he took a
substantial step toward manufacturing methamphetamine, a necessary element of
attempt to manufacture. Again, we disagree. Codefendant Dunne testified that during
the week before the arrests Torre contributed items, including acetone and equipment,
to the laboratory for use in manufacturing methamphetamine. Dunne also testified that
methamphetamine was made three or four times that week, and Torre was present in
the laboratory on one of those occasions. On the day of the arrests, Torre drove his
codefendants to six stores to purchase items used to make methamphetamine. Police
later found the items in the laboratory and a list of those items in Torre’s possession.
Given this evidence, we conclude a reasonable jury could find Torre took substantial
steps toward the manufacture of methamphetamine. See Wagner, 884 F.2d at 1096-97;
United States v. Mazzella, 768 F.2d 235, 239-40 (8th Cir. 1985).
Torre next claims Schlag’s death did not result from the use of drugs
manufactured during Torre’s involvement, so the minimum 20-year sentence required
by 21 U.S.C. § 841(b)(1)(A) and U.S.S.G. § 2D1.1(a)(2) is not applicable. The district
court found by a preponderance of the evidence that Torre intended to manufacture
methamphetamine, Torre’s efforts led to the production of methamphetamine, and the
methamphetamine that caused Schlag’s death was reasonably attributable to Torre’s
actions. These findings are not clearly erroneous. See United States v. Snoddy, 139
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F.3d 1224, 1226-27 (8th Cir. 1998) (standard of review). We also reject Torre’s
argument that the district court should have used a higher standard of proof in making
those findings. See United States v. Alvarez, 168 F.3d 1084, 1088 (8th Cir. 1999).
Torre last contends the district court erroneously denied his motion to sequester
a witness. Again, we disagree. The district court properly declined to sequester the
case agent assisting the government. See United States v. Holmes, 594 F.2d 1167,
1172-73 (8th Cir. 1979); Fed. R. Evid. 615. We have also reviewed Torre’s pro se
arguments and conclude they are without merit.
We thus affirm Torre’s conviction and sentence.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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