United States v. Brian Hulse ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-1891NI
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United States of America, *
*
Appellee, *
* On Appeal for the United
v. * States District Court
* for the Northern District
* of Iowa.
Brian Hulse, *
*
Appellant. *
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Submitted: November 17, 1999
Filed: December 6, 1999
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Before RICHARD S. ARNOLD, FLOYD R. GIBSON, and BEAM, Circuit Judges.
___________
RICHARD S. ARNOLD, Circuit Judge.
A jury convicted Brian Hulse of conspiracy to distribute and possess with intent
to distribute methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and
841(b)(1)(A), and use of a communication facility to facilitate the conspiracy, in
violation of 21 U.S.C. § 843(b). The District Court1 sentenced the defendant to 126
months' imprisonment on the conspiracy count and 48 months' imprisonment on the
1
The Hon. Michael J. Melloy, Chief Judge, United States District Court for the
Northern District of Iowa.
communication count, to run concurrently. The Court also imposed a five-year term
of supervised release and a $100 special assessment. The defendant appeals his
conviction, arguing that there was insufficient evidence that he conspired to distribute
methamphetamine, and that the District Court erred in admitting what should have been
inadmissible hearsay. We affirm the judgment of the District Court.
I.
We state the facts in the light most favorable to the verdict. The individuals in
this conspiracy were Brian Hulse, Terry Swant, Steve Damjanovic, Reuben Saldivar,
and Leonzo Saldivar. Terry Swant, the chief witness against the defendant, pleaded
guilty to conspiracy to distribute and possess with intent to distribute
methamphetamine. Swant testified against the defendant pursuant to his plea
agreement. According to Swant's testimony at trial, he started shipping
methamphetamine via United Parcel Service from California to Damjanovic in Iowa as
early as January of 1988.
Swant became familiar with the defendant in November of 1988 when they both
worked at Alexander Battery. Swant testified that in 1990, he and the defendant agreed
to have boxes containing methamphetamine sent from California directly to Alexander
Battery. Further, the defendant agreed to set aside the packages of methamphetamine
received at Alexander Battery. Swant testified that both Damjanovic and the defendant
would give him money to fly to California and obtain methamphetamine.
Swant testified that beginning in 1990, he would go to California on these
methamphetamine runs every six to eight weeks. Swant would call the defendant and
tell him how to identify the package so that the defendant could put it aside. Swant
testified that the defendant would then set the package aside, and then Swant would
retrieve the package either from Alexander Battery or from the defendant's residence.
Swant would then give the defendant his share of the methamphetamine. On these
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trips, Swant's suppliers were Reuben Saldivar, and eventually Reuben's father, Leonzo
Saldivar.
From early 1991 on, Leonzo Saldivar would ship the methamphetamine directly
to Alexander Battery. Swant testified that the methamphetamine and money were sent
back and forth in a hollowed-out battery charger and preprinted Alexander Battery box
provided by the defendant. In 1994, Swant's and Damjanovic's homes were searched
by law enforcement. Both methamphetamine and the hollowed-out battery charger
were found. Swant testified that he gave 6 or 7 ounces of methamphetamine to the
defendant to sell, as Swant needed cash because of legal problems.
Near the end of 1994, Swant and Damjanovic were arrested in Michigan when
Swant tried to obtain methamphetamine from an undercover police officer. When
Swant was arrested, he had approximately $7,000 in his possession. Swant testified
that Damjanovic and the defendant had each supplied this money, and that the
defendant wanted Swant to refund his portion because he had used his Visa card to
obtain the cash. The defendant's credit card account summary showed a $2,000 cash
withdrawal on December 5, 1994.
Steven Damjanovic pleaded guilty to conspiracy to distribute and possess
methamphetamine with intent to distribute. Along with Swant, he testified against the
defendant pursuant to his plea agreement. Damjanovic confirmed his role in the
conspiracy. He testified that he would occasionally see the defendant at Swant's house,
at times when Damjanovic was waiting there to pick up methamphetamine. In addition,
Damjanovic used methamphetamine at Swant's house with the defendant. Damjanovic
testified he never overheard the defendant and Swant discuss how they were obtaining
methamphetamine. However, he did testify that Swant told him that it was the
defendant who received the methamphetamine shipments at Alexander Battery.
Damjanovic further testified that when he went with Swant to Michigan in 1994 to
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purchase methamphetamine, Swant told him that "a guy named Brian" had contributed
the rest of the money.
At his trial, the defendant objected to much of Swant's, Saldivar's, and
Damjanovic's testimony. The District Court conditionally allowed the testimony. After
all the evidence was in, the Court made a ruling pursuant to United States v. Bell, 573
F.2d 1040, 1043 (8th Cir. 1978), that the evidence was admissible as being made by
co-conspirators in the course and in furtherance of a conspiracy under Federal Rule of
Evidence 801(d)(2)(E).
At the close of the government's case the defendant made a motion for judgment
of acquittal pursuant to Rule 29(a) of the Federal Rules of Criminal Procedure. The
Court denied this motion. The defendant renewed this motion at the close of all the
evidence, and the Court again denied the motion.
II.
We first review defendant's claim that the District Court erred in admitting
testimony under the co-conspirator hearsay exception of Federal Rule of Evidence
801(d)(2)(E). Defendant argues that there was insufficient proof at trial of a conspiracy
involving the defendant. In particular, defendant argues three portions of Damjanovic's
testimony should have been excluded: (1) Damjanovic's testimony that Swant told him
the methamphetamine was coming in through Alexander Battery; (2) Damjanovic's
testimony that Swant told him the defendant was involved in receiving packages at
Alexander Battery; and (3) Damjanovic's testimony that Swant told him that someone
named "Brian" had put up a portion of the money for the methamphetamine purchase
in Michigan.
To admit the statements of co-conspirators, the District Court must determine,
by a preponderance of the evidence, that there was a conspiracy involving the declarant
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and the defendant, and that the statement was made during the course and in
furtherance of that conspiracy. See United States v. Bourjaily, 483 U.S. 171, 175
(1987). The District Court can look at the hearsay statements themselves as evidence
of the conspiracy. Id. at 181.
Here, the District Court did not commit clear error in finding by a preponderance
of the evidence that there was a conspiracy involving Swant and the defendant. Swant's
statements, entered through Damjanovic, that the defendant helped receive and
contributed money toward methamphetamine, are themselves evidence of a conspiracy
between Swant and the defendant. Swant's in-court testimony was an additional non-
hearsay source of evidence to establish a conspiracy.
Likewise, the District Court did not commit clear error in finding by a
preponderance of the evidence that the statements at issue were made during the course
of and in furtherance of a conspiracy. The statements related to the drug-distribution
network, identify other co-conspirators, and discuss the roles the conspirators played
in the conspiracy. See United States v. Johnson, 925 F.2d 1115, 1117 (8th Cir. 1991).
Again, Swant's in-court testimony furnishes independent evidence that these statements
were made in furtherance of a conspiracy.
Therefore, the District Court did not err in admitting Damjanovic's testimony
concerning Swant's statements. These statements were well within the hearsay
exception under Federal Rule of Evidence 801(d)(2)(E).
III.
We next review defendant's claim that there was insufficient evidence to support
his conviction. Defendant points to the lack of physical evidence and corroborating
testimony connecting him to a conspiracy. We hold that this claim has no merit.
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We may reverse the jury's decision only if "no reasonable jury could find beyond
a reasonable doubt that [the defendant] is guilty of the offense charged." United States
v. Buford, 108 F.3d 151, 153 (8th Cir. 1997). A defendant challenging the sufficiency
of the evidence in a conspiracy case has a heavy burden, as proof of the crime may rest
on indirect or circumstantial evidence, see United States v. Copple, 827 F.2d 1182,
1187 (8th Cir. 1987), and circumstantial evidence can be as probative as direct
evidence in proof of a conspiracy. See United States v. American Grain and Related
Industries, 763 F.2d 312, 315 (8th Cir. 1985).
Here, there was sufficient evidence to allow a reasonable jury to find the
defendant guilty beyond a reasonable doubt of the charges against him. Swant's
testimony, Damjanovic's testimony concerning Swant's statements, and the defendant's
credit-card records, were all evidence that the defendant gave Swant money to
purchase methamphetamine. Swant's and Damjanovic's testimony was evidence that
Swant told the defendant how to identify the boxes with methamphetamine, and that
the defendant did in fact help sort and distribute those boxes. The jury, with full
information about Swant's and Damjanovic's motives for testifying, found this testimony
credible.
There was other evidence supporting the defendant's guilt. The battery charger
found in Swant's house further linked the defendant to the conspiracy, as did the fact
that Damjanovic testified that he had seen the defendant in Swant's company when
Damjanovic was waiting for methamphetamine. Although individually these pieces
of evidence might not be sufficient, when taken as a whole they certainly are.
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IV.
For the above reasons, the judgement is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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